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LEGAL NEWS AUGUST 2010
Stories included
a)Secretly obtained documents can not be used in divorce cases b)Forced retirement at 65 to be scrapped c)Father who owes £78,000 maintenance prevented from selling home d)More protection against discrimination in shops and workplace e)Neighbour dispute settled by assessing the lie of the land f)New tax regime could ‘impact on trusts and wills’ g)Abolition of HIPs tempts sellers back into housing market h)Have your say on how to improve the family justice system i)Injury victims subjected to ‘shameful pressure’ from insurers
1 Stamp duty threshold doubled for first-time home buyers 2 Pre-nup agreements come under Supreme Court spotlight 3 Judge erred in favour of baby’s father in family proceedings 4 Hospital workers win discrimination claim over bonus payments 5 Husband didn’t reveal affair to wife when remortgaging home 6 Chancellor freezes inheritance tax threshold for next four years 7 Sons successfully challenge their father’s second will 8 Family compensated after suffering carbon monoxide poisoning at hotel 9 Stamp duty threshold doubled for first-time home buyers
10 Divorcee awarded £215,000 - 25 years after separation 11 Nearly a third of estate agent HIPs found to be ‘unsatisfactory’ 12 Overworked manager receives £110,000 after suffering from stress 13 Beware – not all will writers are qualified solicitors 14 Father wins appeal to make judge reconsider child contact case 15 New legislation relating to trusts comes into effect 16 Gay employee wins harassment and unfair dismissal claims 17 Mother-of-three awarded £55,000 for road accident injuries
18 Scrapping HIPs will ‘help boost the housing market’ 19 Court ruling could help many grandparent carers 20 Homeowners lose boundary dispute because of adverse possession 21 Most workers not aware of employment and redundancy rights 22 UK opts out of European proposals on wills and cross border estates 23 Homesick mother allowed to take her daughter to live abroad 24 NHS manager awarded a total of £187,000 in ageism case 25 Car crash victim awarded £500,000 for burns and injuries
a)Secretly obtained documents cannot be used in divorce cases
A landmark ruling by the Court of Appeal means that couples in divorce cases will not be allowed to use secretly obtained confidential documents to prove their partner is withholding assets.
The case involved a wealthy couple who were in the middle of divorce proceedings. The woman’s brother downloaded information which gave details about her husband’s financial affairs.
They alleged the documents proved the husband was hiding the true extent of his wealth so he wouldn’t have to give it to his wife as part of the divorce settlement.
The husband took legal action saying the brother had no right to download his private documents. He won his case in the High Court which granted an order that the documents should be handed back.
That decision has now been upheld by the Court of Appeal.
It has never been permissible to obtain documents by force such as by breaking into a cabinet or an estranged partner’s home. However, until now, there was a practice known as the Hildebrand rules which meant that if a husband or wife came across a confidential document proving that their partner was withholding money then they could use it as evidence in court.
That practice must now stop following the Appeal Court ruling. Many legal commentators believe the Hildrebrand rules were in need of clarification due to the rapid rise in technology which means information can be accessed from emails or downloaded from a computer.
In giving his judgment, Lord Neuberger said: "It follows that nothing in the so-called Hildebrand rules can be relied upon in justification of, or as providing a defence to, conduct which would otherwise be criminal or actionable."
The judgment means that if a husband or wife in a divorce case take documents without permission, they could face heavy costs or even criminal proceedings.
They can still, of course, apply for a court order to obtain documents or freeze assets.
Please contact us if you would like more information about this or any aspect of matrimonial law. b)Forced retirement at 65 to be scrapped
From October next year, your employer will no longer be able to force you to retire just because you’ve reached the age of 65.
The Government is scrapping the Default Retirement Age (DRA) which means thousands of people will be able to continue working unless their employer can show that there are valid reasons for obliging them to retire.
These reasons would have to relate to the nature of the work. For example, an employer might be able to show that an older employee could not carry out the tasks required of certain jobs such as police or fire officers.
Ministers are now beginning a consultation process on the issue but have already outlined the timetable for phasing out the DRA.
It means that from 6th April 2011, employers will no longer be able to issue any notifications for compulsory retirement using the DRA procedure.
For the period between 6th April and 1st October 2011, only people who were notified before 6th April 2011 and whose retirement date is before 1st October 2011 can be retired compulsorily using the DRA.
After 1st October next year, the DRA can no longer be used to oblige employees to retire. If employers wish to retire an employee after that date they will have to show that their reasons are objectively justified.
Pensions Minister Steve Webb said: “Many older people want to work after age 65 and have a wealth of skills and experience that are not being used. We want to get rid of the Default Retirement Age so that if they want to work they can do so. By spending longer in the workforce they can also have a better pension in retirement.”
Please contact us if you would like more information about the issues raised in this article.
c)Father who owes £78,000 maintenance prevented from selling home
A father who owes £78,000 in unpaid maintenance has been prevented from selling his home.
It was feared that he wanted to stop the Child Maintenance and Enforcement Commission (CMEC) from taking the property to settle his debt.
The man, who cannot be named for legal reasons, has paid nothing to his former partner for nearly 12 years. He failed to respond to letters and phone calls from the Child Support Agency (CSA) which is now part of CMEC.
The case is the first to be brought under new powers introduced in the latest child maintenance legislation. CMEC applied to the High Court to impose an order preventing the sale.
The orders are designed to stop parents putting assets in the names of relatives and new partners as a way of avoiding their duty to provide for their children. The Chair of the CMEC, Dame Janet Paraskeva, said: “Step-by-step the Commission is closing the escape routes for parents who think they can cheat their children out of money from which they are entitled to benefit.
“No longer can houses, cars and other valuable assets be sold off quickly to prevent the CSA taking possession of them. Those who cynically transfer the legal ownership of property into the names of their new partners risk having those transactions reversed.”
The new powers have been welcomed by the family lawyers association, Resolution.
CMEC has also begun Order for Sale proceedings against 500 properties belonging to parents who have failed to pay maintenance despite repeated efforts to get them to do so. The prospect of losing a home has proved very effective in persuading indebted parents to settle.
So far, more than £2m has been recovered but fewer than 15 properties have actually been taken and sold.
Please contact us if you would like more information about family law issues.
d) More protection against discrimination in shops and workplace
The new Equality Act will give people more protection against discrimination in the workplace and in premises where they buy goods and services.
The Government has announced that the Act will take effect in October as planned, although not all the new measures will be introduced at the same time.
The Act makes it illegal to discriminate against a wide range of people who have what are described as “protected characteristics”.
These characteristics are:
• disability • gender reassignment • pregnancy and maternity • race – including ethnic or national origins, colour and nationality • religion or belief • sex and sexual orientation.
There will be a slightly different way of defining disability which will extend protection to more people.
It will be against the law for a restaurant to ask a mother to stop breastfeeding her baby or to move to a more private part of the premises.
With the exception of pregnancy and maternity, the protection also applies if a person is unfairly treated because they are wrongly perceived to have a particular characteristic.
This might apply, for example, if a person is discriminated against because they are perceived to be gay when in fact they are not.
The protection also extends to people who are treated unfairly because they associate with someone who has a protected characteristic.
The Act also introduces several changes relating to the workplace and employment law.
For example, the Act develops the concept of indirect discrimination, which can occur when there is a rule or policy that applies to everybody but creates a disadvantage for employees with a particular protected characteristic.
As with goods and services, there can be no discrimination relating to perception or association.
There are also changes relating to harassment and victimisation, and the Act introduces the concept of harassment by a third party. This means that employers are potentially liable for harassment of their staff by people they don’t employ.
Not all the changes will be implemented at the same time and the Government is still considering its position on some of the equal pay measures outlined in the Act. Ministers are expected to offer more guidance over the coming months.
Please contact us if you would like more information about any of the issues raised in this article.
e)Neighbour dispute settled by assessing the lie of the land
A judge was entitled to settle a neighbour dispute by assessing the lie of the land when it was unclear from the legal documents where a boundary should be placed.
That was the ruling of the Court of Appeal in the case of two neighbours who both believed they owned the stream that separated their properties.
Both properties were originally owned by the same person. When the land was split into two and sold separately, the plans and legal documents didn’t make it clear where the boundary lay and who owned the stream.
At the time the first property was sold, there was a fence running alongside the stream on the side that would later become part of the second property.
The judge at the trial held that a reasonable person would have concluded that this fence formed the boundary of the first property and the stream was therefore part of that property.
The owner of the second property appealed saying that the judge had been influenced by inadmissible evidence and should not have looked beyond the legal documents.
The Court of Appeal dismissed this view, however, saying the judge’s approach had been justified. Lord Justice Mummery said: "As the plan is insufficiently clear about the position of the boundary, this was a case in which the judge was entitled to take the plan in hand and look at the physical features of the land on the ground as at the date of the conveyance."
Please contact us if you would like more information about the issues raised in this article.
f) New tax regime could ‘impact on trusts and wills’
Recent changes in the tax regime could have an adverse effect on many trusts and wills.
The new Government’s first budget increased Capital Gains Tax (CGT) to 28% for higher rate taxpayers. The Law Society has warned that this new rate “will charge any gains made while an estate is being administered and also gains for the duration of a trust”.
Will trusts, which are often created for the benefit of children, are particularly vulnerable to the changes.
The President of the Law Society, Robert Heslett, said: “Many hardworking families will often look to create a protective tax regime for their children in the event that they are orphaned at a young age by leaving assets in trust until the children are old enough to manage the assets without the guiding hand of their parents.
“There is a real danger of trust assets being eroded through a combination of income tax at 50 per cent, CGT at 28 per cent and the impact of the changes to the inheritance regime introduced in 2006.
“Personal representatives, trustees and anyone else appointed to set up a trust and settle assets within it should urgently seek advice from their solicitor to ensure that arrangements are structured as tax efficiently as possible for the benefit of these vulnerable beneficiaries in the light of these new developments.”
Please contact us if you would like more information about wills and trusts.
g)Abolition of HIPs ‘tempts sellers’ back into housing market
The Government’s decision to get rid of Home Information Packs (HIPs) led to an increase in the number of people putting their homes up for sale, according to new research.
The Property Activity Index produced by Agency Express – the company that produces nearly a quarter of the UK’s house ‘For Sale’ signs – reported a 1.8% increase in new properties coming on to the market in the month following the abolition of HIPs on 21st May.
This was in contrast to Scotland which reported a 14.8% drop in new properties coming on to the market. Scotland has retained its version of HIPs which are called Home Reports.
The Managing Director of Agency Express, Stephen Watson, said: “The Property Activity Index data confirms what we all suspected – that HIPs were an unnecessary and inhibitive addition to the house sales process.”
HIPs had been widely criticised since their introduction in 2007 and the decision to abolish them was broadly welcomed across the housing market. However, sellers should remember that they still have legal obligations when they put their home up for sale. For example, they still have to provide an Energy Performance Certificate which grades the property’s energy efficiency.
Please contact us if you would like more information about any aspect of buying a selling a property.
h)Have your say on how to improve the family justice system
The Government has invited people to express their views on how to improve family justice procedures to protect children and help families deal with their problems and disagreements.
The ‘Call for Evidence’ has been launched by the Family Justice Review Panel, which has been set up to conduct a fundamental review as outlined by the Government in the coalition agreement.
It’s intended that the review should be wide-ranging and should consider ways to improve mediation services and provide better contact rights for non-resident parents and grandparents.
The panel wants anyone interested in the family justice system to express their opinions on key areas such as:
· How can the justice system focus more on helping family members to reach agreement rather than pitting them against each other? · How best can the courts working with other agencies support children involved in the care system? · How best can the system provide greater contact rights to non-resident parents and grandparents?
The Chairman of the Review, David Norgrove, said: “The launch of this call for evidence is the start of a dialogue with all those involved in the system – from the children and families who use these services, to the wide range of professionals.
The panel’s report based on the feedback it receives is expected to be published next year.
Please contact us if you would like more information about family law issues.
i)Injury victims subjected to ‘shameful pressure’ from insurers
Insurance companies are being accused of pressurising accident victims into accepting reduced compensation awards before they get independent legal advice from their own solicitor.
The Association of Personal Injury Lawyers (APIL) says insurers can approach victims within days of the accident when they are often confused and vulnerable.
The high pressure tactics have become so widespread that APIL has sent a dossier to the Financial Services Authority highlighting several cases where insurers have tried to settle claims at far below their true value.
Muiris Lyons, the president of APIL, said: “We have heard about quite shameful pressure to settle being brought to bear on vulnerable and injured people.
“The insurance industry is now euphemistically calling this ‘third party assistance’, but what many people won’t realise or remember, often because they are shocked and vulnerable at the time, is that insurers’ primary duty is to their shareholders, not the injured person.
“This obviously puts them in direct conflict with the victim.”
One of the main problems is that most people know little about the compensation system and so are unable to assess whether a settlement offer from an insurance company is fair and reasonable.
That is why it is essential that anyone injured in an accident through no fault of their own should seek advice from a solicitor who specialises in personal injury claims.
That way they can be sure that they will be properly compensated. They should not have to pay for this independent legal advice as the solicitor’s fee can be recovered from the other party and their insurers.
Please contact us if you would like more information about making a personal injury claim.
1 The stamp duty threshold for people buying their first home has been doubled from £125,000 to £250,000. The new limit will remain in place for two years until March, 2012. It means first-time buyers will pay no duty at all when buying properties up to the £250,000 limit. The move was announced by Chancellor Alistair Darling during his budget statement. He estimates that nine out of ten first-time buyers will benefit. Mr Darling says the change is also designed to help the housing market which has now begun a slow recovery. It’s not good news for everyone, however. Stamp duty is being increased to 5% for residential property costing more than £1m. The increased threshold for first-time buyers came into effect on 25th March and relates to completion dates. It means that people already in the process of buying their first home will benefit as long as they complete before 25th March 2012. The new limit only relates to people buying their main home. Those buying a holiday home or a buy to let will not qualify. Please contact us if you would like more information about how the stamp duty changes might affect you, or about any aspect of buying and selling a home.
2Pre-nup agreements come under Supreme Court spotlight
The legal validity of pre-nuptial agreements has come under the scrutiny of the Supreme Court.
Nine justices have been considering the case of the heiress Katrin Radmacher and her former husband Nicolas Granatino who drew up a pre-nup agreement before they married. The question for the justices is whether that agreement should be considered legally binding following the couple’s divorce.
It’s hoped the ruling when it comes will help clarify the legal position for thousands of couples throughout the UK. Some guidance would be very helpful because while pre-nups tend to be legally binding in America and most of Europe, the position in the UK is less clear. Until recently, the courts would certainly take them into account in the event of a dispute but would disregard them if the judge thought it appropriate.
This could happen if there were compelling reasons to doubt their validity. Doubts might arise if one party signed without getting proper legal advice or if someone failed to disclose all their assets when the contract was being drawn up.
The status of pre-nups took a major leap forward with the case of German heiress Katrin Radmacher and her former husband, Nicolas Granatino, who is French. When they married they drew up a pre-nup saying that he would not make a claim on her money if they ended up divorcing.
The High Court decided that it would be unfair to hold Mr Granatino to the pre-nup agreement and awarded him £5.8m from Miss Radmacher’s fortune.
However, that ruling was then overturned by the Court of Appeal which cut the payment to £1m – a figure Miss Radmacher was prepared to accept. In giving his judgment after the hearing, Lord Justice Thorpe said it was becoming “increasingly unrealistic” for courts to disregard pre-nups. He believed that a “carefully fashioned contract” could provide a valuable alternative to the “stress, anxiety and expense” of going to court.
“There are many instances in which mature couples, perhaps each contemplating a second marriage, wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children of their earlier marriages upon dissolution of a second marriage.”
That ruling put pre-nups on a much stronger footing but then Mr Granatino took his case to the Supreme Court. He says he didn’t know the full extent of his former wife’s wealth when he signed the pre-nup and will suffer personal hardship if the agreement is upheld.
His lawyers argued that the Court of Appeal had created a revolutionary piece of legislation instead of applying existing case law. Miss Radmacher’s counsel countered by saying that the court should uphold the principle “that people should not easily be able to escape their bargains”.
Whatever the Supreme Court decides, its ruling will be final and have serious implications for pre-nups in the future.
If Miss Radmacher wins the case then pre-nups will have to be taken far more seriously by the courts and be considered legally binding, unless there are strong reasons to doubt their validity.
If Mr Granatino wins then the position will be less clear, but hopefully the court will give some guidance when giving its judgment which will help clarify the situation for the future.
We shall keep clients informed of developments.
3 Judge erred in favour of baby’s father in family proceedings
The Court of Appeal has ruled that a judge had erred in favour of a baby’s father when deciding the terms of an interim contact order.
The case involved a married couple who separated shortly after their baby son was born. The father remained in the family home in Essex and the mother went to live with her relatives in Lancaster, taking her baby with her.
A judge granted an interim contact order saying that it was appropriate for the baby, who was born with the congenital condition known as club foot, to stay with his father for recurring five-day periods. This meant the baby would be with the father for a quarter of the duration of the interim order.
The judge said he had reached his decision after carefully considering the baby’s wellbeing in accordance with the welfare check list set out in the Children Act 1989. He considered that the father, who was a GP with paediatric experience, would have the necessary skills to look after the baby.
The judge also felt it was important for the baby to spend time with the father to get to know him.
However, the Court of Appeal has ruled that the judge had failed to apply the welfare checklist properly. He had not given sufficient regard to the fact there was little evidence to suggest that the father would be able to look after the baby for the length of time provided by the order. The father had no other children and had not looked after the baby since the birth.
It was also the case that the baby was still being breastfed and had specific health needs. The mother might also suffer anxiety during the baby’s absences and this in turn might be imparted to the baby and have an adverse effect on him.
The Appeal Court quashed the order and replaced it with one that allowed for contact between father and baby at a contact centre in Lancaster. This could then be followed by further contact and overnight residence in Lancaster.
Please contact us if you would like more information about family law issues. 4 Hospital workers win discrimination claim over bonus payments
A group of hospital workers have won their claim that they were the victims of indirect sex discrimination when their employer cut their bonus payments.
The women all worked as hospital domestics for Newcastle NHS Hospitals Trust. They brought their claim after the Trust cut their bonus payments but continued giving bonuses to male porters who carried out work of similar value.
The Trust said it had to remove the women’s bonuses in order to compete with outside bidders in a tendering exercise for domestic services. That bid did not affect portering services and it had not been possible later to remove the differential that had been created.
It put forward a “genuine material factor” which tried to show that the difference in bonus payments was due to genuine, practical factors which were unrelated to the sex of the employees.
However, that defence has been rejected by the Employment Appeal Tribunal. It held that the withdrawal of the bonuses was designed to bring the women’s pay into line with the market rate for domestics.
However, that in itself was discriminatory because, as would be obvious to the Trust, that sector was made up almost entirely of women who received less than men who did jobs of equal value.
Please contact us if you would like more information about employment law issues.
5 Husband didn’t reveal affair to wife when remortgaging home
A wife has prevented her home from being repossessed after a court heard that her former husband had not revealed that he was having an affair when they remortgaged the property.
The couple had lived together in the family home with their children. The husband got into financial difficulties after overspending on credit cards. He persuaded his wife to agree to remortgaging the home so he could clear his debts.
Shortly afterwards, she discovered that he had been having an affair and this led to them divorcing. The husband then lost his job and was later made bankrupt.
The wife acquired the home for £1 from his trustee in bankruptcy. However, she then found she could not pay the instalments due to the company which had financed the remortgage.
The company then began legal proceedings and the court decided that it was entitled to repossess the house.
However, that decision has now been overturned by the Court of Appeal. It held that when the wife was asked by her husband to remortgage the home she was entitled to be given all the relevant information that might influence her decision.
In agreeing to her husband’s request, she was working on the assumption that he was as committed to their marriage as she was. Had she known of her husband’s affair she would probably have reached a different conclusion.
The affair should therefore have been disclosed. The husband’s failure to make that disclosure amounted to undue influence on his wife which was sufficient to invalidate the mortgage transaction between them.
Her appeal was therefore allowed.
Please contact us if you would more information about remortgaging a property or issues relating to matrimonial law. 6 Chancellor freezes inheritance tax threshold for next four years
The Chancellor, Alistair Darling, has frozen the individual inheritance tax threshold for the next four years.
The threshold had originally been due to increase to £350,000 but last year Mr Darling announced it would remain at £325,000 until 2011. Then, in his Budget speech, he announced that there would be no increase before 2014.
He said the move was necessary because of the current economic downturn.
The announcement will no doubt be a disappointment to many people and highlights the need to plan ahead in order to ensure that as much of your estate as possible is passed on in a tax efficient way to your beneficiaries.
Government announcements on inheritance matters often prompt people to review their wills, trusts and overall financial arrangements. A little careful planning now can prevent thousands of pounds being wasted in the future.
Please contact us if you would like more information about wills, trusts and any matter relating to inheritance planning.
7 Sons successfully challenge their father’s second will
A court has ruled that a man was so devastated by the death of his wife that he lacked sufficient decision making powers to draw up a legally binding will.
While in good health, the man had drawn up a will leaving most of his estate to his sons and some to his daughters. Then, just nine days after the death of his wife, he made a second will changing the balance so the bulk of his assets went to the daughters and the share going to the sons was reduced.
The sons sought a court declaration that this will was invalid because their father lacked testamentary capacity when he made it so soon after his wife’s death. Both the sons and the daughters agreed that their father had possibly been suffering from the early stages of dementia shortly before his wife died.
His subsequent bereavement triggered an affective disorder which occurred during the period when the second will was made.
The court held that the new will was very different to the original and represented a major change in his approach to the division of his estate. It was made a time when he was old and mentally infirm.
He had clearly been devastated by the death of his wife and this by itself may have been enough to deprive him of sufficient decision making powers to draw up a will that was a true reflection of his wishes.
In these circumstances, it was up to the daughters to show that he had testamentary capacity when he made the new will. They had not been able to do this.
The second will was declared invalid and the first will was reinstated. Please contact us if you would like more information about wills and probate.
8 Family compensated after suffering carbon monoxide poisoning at hotel
Seven members of a family have each received compensation after suffering carbon monoxide poisoning while staying at a hotel.
Their ages ranged from three weeks to 74 years at the time when the incident happened in 2006. They became ill and suffered from headaches and vomiting while staying together at a hotel between Christmas and New Year.
Hospital tests showed that they had elevated levels of carboxyhaemoglobin in their blood. This is caused by breathing in carbon monoxide.
Some of the family members were kept in hospital overnight but none required prolonged treatment. One had to undergo counselling after being diagnosed as suffering from anxiety disorder.
Tests carried out at the hotel showed that pipes near to the rooms where they had been staying were unsafe.
The hotel owners disputed liability. Total damages of between £1,500 and £6,750 were agreed in an out-of-court settlement.
Anyone who suffers injury or illness as a result of someone else’s negligence is entitled to claim compensation. Please contact us for more information.
10 Divorcee awarded £215,000 - 25 years after separation
A barrister has been ordered to pay a lump sum of £215,000 to his former wife, 25 years after they were divorced.
The couple separated in 1985 after 13 years of marriage. They had no children. Under the divorce settlement, he agreed make regular payments to her. He then remarried and now has two children with his second wife.
The barrister retired last year and applied to have the payments dropped because his income had reduced. His former wife submitted that if the payments were to stop, he should pay her a lump sum instead as a final settlement.
When assessing the barrister’s income, the judge halved the value of some of his assets to reflect the interests of his second wife. This included his pension which would be the main source of his income.
The judge also took into account that the first wife had received an inheritance which she could use to support her needs. He then granted the order allowing the barrister to stop the payments. The wife’s claim for a lump sum payment was rejected.
The wife appealed on the grounds that she would suffer undue hardship and that the judge had overestimated the interests and claims of the second wife.
The Court of Appeal has now ruled in her favour. It held that the judge had been wrong to give priority to the claims of the second wife and that the barrister was in principle obliged to continue making the payments.
The judge had also been wrong to conclude that the first wife could adjust to the sudden loss of payments without undue hardship.
The court ruled that the barrister should pay his first wife £14,000 a year until he had paid a total sum of £215,000.
Please contact us if you would like more information about matrimonial law.
11 Nearly a third of estate agent HIPs found to be ‘unsatisfactory’
Research by trading standards officers in Birmingham found that 30% of Home Information Packs (HIPs) provided by estate agents were unsatisfactory.
It’s thought that there are similar problems with HIPs provided by estate agents throughout the rest of the country.
Common faults included “no consumer information, no company contact details and no information on complaint and redress procedures”. There were also technical issues relating to searches and the index that has to be provided with the HIP.
HIPs have to be provided when selling a property in England and Wales. They have been compulsory since 2007 and should contain various documents including Energy Performance Certificates, title documents and the results of local searches.
Trading standards officers tested 25% of the estate agent market in Birmingham by visiting the offices of individual firms and requesting HIPs for some of the properties on sale. The HIPs were then assessed by the Property Codes Compliance Board.
Chris Neville, head of Trading Standards at Birmingham City Council, said: “Buyers should be aware that not all HIPs can be taken at face value as being accurate.”
The Law Society recently issued advice urging sellers to consult a solicitor about providing a HIP because they are likely to get a better service at a lower price. A spokesman said: “The added benefit of using a solicitor is that they are all strictly regulated and required to follow stringent rules, unlike estate agents.”
Please contact us if you would like more information about HIPs or any aspect of buying or selling a home.
12 Overworked manager receives £110,000 after suffering from stress
A man who had to give up his job due to the stress of working a 65-hour week has received £110,000 in compensation.
The man worked for a university as a manager organising courses for overseas students. Due to short staffing, his team of four had to carry out work normally dealt with by six people.
The manager found himself working 65 hours a week on a regular basis. He had worked for the university for 10 years and had suffered from anxiety and depression in the past.
His increased workload put him under a great deal of pressure. He complained to his employers but they failed to deal with the problem.
He then took time off work suffering from stress. He was able to return briefly but was forced to take time off again.
He then decided to take legal action and claimed compensation on the basis that his employers had not done enough to support him and ensure that he wasn’t overworked.
The employer denied liability but agreed an out-of-court settlement of £110,000.
Please contact us if you would like more information about this or any aspect of employment law. 13 eware – not all will writers are qualified solicitors
Research has revealed that more than six out of ten consumers mistakenly believe that a person has to have qualifications before they can start writing wills.
More than 1,000 people were interviewed in a survey commissioned by the Fellowship of Professional Willwriters and Probate Practitioners. Nearly half said they were confused by the process of writing a will and a total of 680 had assumed that all will writers were solicitors.
When presented with the statement – “anyone can set themselves up as a will writer as qualifications are not needed” – 830 people thought it was false.
Unfortunately, this is not the case as many families find to their cost each year. Badly drafted wills by unqualified practitioners can cause great heartache and hardship.
The Law Society recently highlighted cases where wills turn out to be invalid because they are not properly drawn up. This means the deceased person’s estate is treated as if he died intestate – that is, without having made a will at all.
The estate is then divided in a way laid down by the law, which could mean it goes to people the deceased person had not chosen. It is also the case that many unregulated will writers are not insured so families have no means of redress when problems arise.
The main attraction of unqualified will writers is usually that they are cheap. However, that often turns out to be a false economy as rectifying the damage caused can often be extremely expensive.
A Law Society spokesman said: "Solicitors know of so many cases of people who have turned to them for help after being left with what can only be described as nightmare wills by will writers.
“We advise people in this situation to consult a solicitor to check the accuracy of their will before it is too late."
Please contact us if you would like more information about wills and probate.
14 Father wins appeal to make judge reconsider child contact case
A father who appealed against a decision allowing his former wife to take their five-year-old son to Australia has won the right to have the case reconsidered.
The couple had divorced after a short marriage during which their son was born. The wife later remarried and wanted to take her son to live with her and her new husband in Australia. This would remove the boy from the jurisdiction of England and Wales.
The court ruled in favour of the mother but the father appealed on the grounds that the judge had not given proper consideration to a report on the case by CAFCASS – the agency which protects the welfare of children involved in court proceedings.
At the time of the hearing the full report was not available although a CAFCASS officer attended. The father said he did not cross-examine the officer at length because he thought a full report would be provided. This meant that his views had not been put forward properly at the hearing.
The judge went ahead without the full report and relied on other evidence when making her decision. The Court of Appeal has now held that the judge had been wrong to reach a decision without all the relevant information being available.
It meant that justice might not be seen to be done. The judge would therefore have to reconsider her decision having taken into account the full CAFCASS report.
Please contact us if you would like more information about family law issues.
15 New legislation relating to trusts comes into effect
New legislation governing the administration of trusts has now come into effect.
The Perpetuities and Accumulations Act 2009, effective from 6th April this year, abolishes the long-established 21-year limit during which private trusts could accumulate interest without having to distribute it to beneficiaries.
The change was made after the Law Commission argued that there was no good reason for restricting a settler’s ability to direct or allow for the accumulation of income. In fact, such restrictions could create problems by obliging trustees to distribute income once the 21-year limit had been reached.
This meant money could be given to beneficiaries who were too young to receive it or incapable of dealing with it properly because of health or other issues.
Many experts believe the changes will make it more attractive to set up trusts because people can have more confidence that money will not be settled on beneficiaries when they are too young or if they are incapable of dealing with it for any other reason.
Charitable trusts will be still be subject to the 21-year limit, however, to ensure that income is spent for the public benefit rather than be allowed to accumulate indefinitely.
The Act also simplifies the rules relating to perpetuities by introducing a single 125-year period for all new trusts.
Please contact us if you would like more information about the changes or any aspect of setting up trusts.
16 Gay employee wins harassment and unfair dismissal claims
A man who says he was subjected to incidents of bullying at work after revealing to colleagues that he was gay has won his claims of harassment and constructive unfair dismissal.
The man revealed his homosexuality at a sporting event organised by his employer. He says the incidents of bullying began shortly afterwards.
He took time off sick and submitted a written grievance listing a number of incidents of harassment. His firm held a meeting but dismissed his complaints without discussing them with him.
He appealed but this too was rejected and so he resigned and claimed constructive unfair dismissal.
All the alleged perpetrators denied his allegations and so the employment tribunal tried to find corroborative evidence for each complaint. It was able to do so for four incidents and so those complaints were upheld.
He was therefore entitled to claim constructive unfair dismissal. That decision has now been upheld by the Employment Appeal Tribunal.
Anyone who feels they are being discriminated against in the workplace should seek legal advice as soon as possible.
Please contact us if you would like more information.
17 Mother-of-three awarded £55,000 for road accident injuries
A mother-of-three has received £55,000 compensation after being injured in a road accident.
The 36-year-old woman was a passenger in a car which collided with a vehicle pulling out of a driveway. She suffered two broken wrists, bruising and went on to develop post-traumatic stress disorder.
She underwent surgery but continued to suffer from pain in both hands. This could be brought on by typing and driving but it could also occur spontaneously without warning. She was still able to do housework but it took her longer than before and she found everyday tasks like ironing and cleaning to be exhausting.
It was expected that she would need help with household tasks while her three young children remained at home.
At the time of the accident the woman was working as a part-time teaching assistant but she was also a qualified midwife and had planned to return to midwifery once her children had grown up. That would no longer be possible for her due to the nature of the work and so her earning capacity would be reduced.
The woman took action against the driver of the other vehicle claiming that she had been negligent in failing to give way as she left the drive. Liability was admitted.
Compensation of £55,000 was agreed in an out-of-court settlement.
Please contact us if you would like information about making a personal injury claim.
18 Scrapping HIPs will ‘help boost the housing market’
The Government believes that its decision to scrap Home Information Packs (HIPs) will encourage sellers back into the market and help the economy recover.
The decision was first announced in a joint policy document published by the Conservatives and the Liberal Democrats within days of the coalition being formed.
Ministers then moved quickly to suspend HIPs from May 21st to prevent any uncertainty that might disrupt the housing market. Primary legislation will be needed to abolish them permanently and that will be introduced in due course.
It means that HIPs, which have been widely criticised since they were introduced by the Labour Government three years ago, are no longer needed when selling a home. However, Energy Performance Certificates (EPC), which many people considered to be the most important component of HIPs, will be retained.
EPCs rate a property’s energy efficiency from A to G and are seen as an important part of the new Government’s policy to protect the environment. Sellers will still have to commission an EPC before marketing their property. The EPC must then be available within 28 days of the property being put up for sale.
Abolishing HIPs means the burden of paying for searches will now fall back on the buyer and so will add to their costs.
The new communities secretary, Eric Pickles, said: "The expensive and unnecessary Home Information Pack has increased the cost and hassle of selling homes and is stifling a fragile housing market.
"That is why I am taking emergency action to suspend the HIP, bringing down the cost of selling a home and removing unnecessary regulation from the home buying process.
"This action will encourage sellers back into the market, and help the market as a whole and the economy recover."
The Law Society welcomed the decision to scrap HIPs and is calling for further reform to improve the system for both buyers and sellers. It says it wants to develop new approaches that will improve efficiency, value and transparency.
The Office of Fair Trading (OFT) also say it’s time for a “shake-up” in the system of buying and selling houses in the UK.
It has just completed a study which found that the housing market is dominated by traditional estate agents with “weak competition between them on prices”.
The OFT report says that as “property prices rise during housing booms, so too do estate agents’ fees”. It calls for legislation to allow new entrants into the market with more competitive business models to provide better value for money for the consumer.
It also calls on the Government to consider additional regulation relating to the fees estate agents receive for referring consumers to providers of ancillary services such as mortgage advice and surveys.
Please contact us if you would like more information about the new developments or any aspect of buying and selling a home.
19Court ruling could help many grandparent carers
The high number of family breakdowns means that thousands of grandparents now play a major role in looking after children.
Many find they become the primary carer for their grandchildren – sometimes with no or only limited financial help. Now in a landmark case, a 64-year-old grandmother has won a legal battle with her local authority because it had refused to pay her the same rate as a foster carer for looking after her granddaughter.
The woman, who cannot be named for legal reasons, has looked after the girl since 2005 when the council told her the only other alternative was to take the girl into care as her parents were unable to cope. The council then decided to treat the case as if it were a private, family arrangement and refused to pay her the full carer’s rate.
The High Court rejected that view and ruled that the payment should rise from £63 weekly to £146 in line with the average rate for foster parents with no family connections.
The case clearly has widespread implications for other local authorities and potentially thousands of grandparents all over the country so the council has been given permission to appeal. It means there may be further developments, but the High Court decision shows that the law can come down on the side of grandparents who find themselves looking after children at a time in their lives when they were expecting to take things easy.
Some people may say that grandparents have a duty to look after their grandchildren if necessary, but it’s also true that bringing up a child is expensive.
It can be especially difficult as a person gets older and their earning capacity decreases as they approach retirement.
Whatever one’s view, the ruling highlights the increasing value being placed on the role of grandparents as society changes and families become less stable.
Please contact us if you would like more information about this or any aspect of family law.
20Homeowners lose boundary dispute because of adverse possession
A woman and her son have lost a boundary dispute with their neighbour because of the legal concept of adverse possession.
This is the principle whereby people can sometimes claim ownership of land if they have had exclusive possession of it for a certain period.
The case involved a disagreement over a strip of land just 35cms wide which separated two terraced houses numbered 38 and 39. The woman and her son, the Huntleys, took legal action after their neighbour decided to erect a fence on the disputed area.
They claimed that this would make it very difficult for them to open the doors of their car. The legal proceedings centred on the exact location of the original boundary.
The Huntleys, who lived at number 38, submitted that it followed a straight line, known as the “red line” on the map used in the trial. The neighbour, who lived at 39, submitted that it followed the “green line” which was more in his favour.
The Court of Appeal held that whatever the original boundary might have been, it was clear that number 39 had been in exclusive possession of the disputed strip from 1935 onwards. It meant that by 1950 at the latest, any title that the owners of number 38 might have claimed had been extinguished by adverse possession.
Giving judgment, Lord Justice Rimer said “the consequence of the prior adverse possession was that the green line marked the present boundary between the properties”.
It is not uncommon for neighbour disputes to lead to court action but it is usually better for disagreements to be resolved amicably.
Clarification of the legal position may help resolve the problem right at the outset. If there is still a disagreement then a solicitor may be able to help arrange mediation so that a settlement can be reached that is fair to both sides.
This approach is usually far less stressful than going to court and it may help you to maintain a good working relationship with your neighbour. This is very important as you may have to live alongside each other for many years to come.
Please contact us if you would like more information about the issues raised in this article.
21 Most workers not aware of employment and redundancy rights
Most UK workers are not aware of their employment and redundancy rights, according to new research by Which.
The consumer organisation carried out a survey involving 4,000 people and found that more than half were worried about being made redundant or having their pay reduced. However, 9 out of 10 were unable to answer key questions about redundancy procedures and payments and other important employment rights.
With so many companies still laying people off it is important that everyone should be aware of their rights to ensure they are treated fairly.
If redundancies are to be made then your employer should consult with you individually or, if there are to be a large number of redundancies, with your staff or union representatives as soon as possible. This should be at least 30 days before the first redundancy if there are between 20 and 99 jobs to go and at least 90 days in advance if the number is over 100.
You should be provided with written details about such things as the reasons for the redundancies, the numbers and categories of people involved and how the employees affected will be selected. The company can decide how the selection process will work but it must be fair and based on evidence rather than who the employer likes or dislikes.
If you are selected then your employer should consult with you individually and explain why. He must also consider whether there are any alternatives to redundancy. If the employer fails to do this then the redundancy may be considered unfair.
If you feel you have been selected unfairly you can appeal and if necessary take your case to an employment tribunal.
You will be entitled to statutory redundancy pay if you have worked continuously for your employer for two years or more. The entitlement varies from half a week’s pay for each year of service to one and a half week’s pay depending on your age. The statutory maximum weekly pay has just risen to £380 but your firm may have an in-house agreement providing better terms.
You are also entitled to work your full notice period or be paid in lieu if your employer wants you to leave earlier.
Your firm may want to enter into compromise agreements with redundant staff. The agreements set out the terms and conditions relating to the termination of employment and once signed will prevent the employee bringing tribunal claims in future, except for personal injuries or pension issues.
The firm may provide an enhanced redundancy package to encourage you to sign. Because you will be waiving the right to bring an employment claim in future, you must receive independent legal advice before entering into a compromise agreement to ensure you know and understand all the implications.
This advice should be provided by a law firm that is experienced in employment matters and is not acting for the company making the redundancies.
The costs are often paid for by the employer of the redundant workers as it provides a cost effective way to reach a settlement.
Compromise agreements can be beneficial to both sides as long as you are fully aware of what you are doing.
Please contact us if you would like more information about redundancy arrangements or any aspect of employment law.
22 UK opts out of European proposals on wills and cross border estates
The UK has chosen to opt out of EU proposals dealing with wills and cross border estates.
The issue may be important to people who own property abroad or who may live away from their native country. Different countries have widely differing approaches to inheritance and so the administration of cross border estates can become very complex as more than one legal system may apply.
The European Commission is currently considering draft proposals to address the problem by simplifying the regulations on international successions.
The new proposals mean that successions would automatically be dealt with under the laws of the country in which the person was permanently resident before they died. This would apply unless the person had opted out and chosen the country of their nationality instead.
The proposed changes would have no effect on the succession laws of each member country.
The UK has decided to opt out for the time being because of concerns that the new regulations could create some potential problems.
For example, under English law, if a person makes a lifetime gift then, with a few exceptions, it is considered final and cannot be later undone.
However, in some EU countries such lifetime gifts can be “clawed back” in favour of family members.
Despite the decision to opt out for now, the UK may eventually adopt the new regulations when they are finalised as long as certain concerns are addressed.
In the meantime, the main issue for most people will be how to make the most of the current regulations in the UK and ensure that as much of their estate as possible will pass on to their chosen heirs.
It is important to start planning as early as possible. Make sure you make a will and keep it up to date and then look at the provisions provided by the law that could help you pass on your wealth in a tax efficient way.
Currently, there is a £325,000 threshold before inheritance tax becomes payable. It is then charged at 40% on the value of the estate above the threshold. However, there is no tax to pay if a person leaves their estate to their spouse when they die.
Since 2007, married couples and civil partners have been able to effectively double the threshold to £650,000 at today’s rates when the second spouse dies. This won’t happen automatically, however. To take advantage of this benefit, the first spouse’s unused inheritance tax threshold or “nil rate band” as it is known must be transferred to the second spouse when they die. A solicitor will be able to advise on how this should be done.
There are other provisions people may wish to consider. For example, if you live for seven years after making a gift to someone there will usually be no inheritance tax liability – no matter how large the gift.
You can also give away a total of £3,000 each year, either to one person alone or divided between several people, without the recipients being liable for inheritance tax on the gift when you die. Gifts made to charities, either in your will or in your lifetime, are also exempt from inheritance tax.
Inheritance tax planning can be quite complicated so it is wise to seek legal advice as soon as possible to make the most of the provisions available.
Please contact us if you would like more information about the issues raised in this article.
23 Homesick mother allowed to take her daughter to live abroad
A mother who could not settle in the UK has been allowed to take her seven-year-old daughter to live with her in the Czech Republic.
The court decided that it would be in the child’s best interests to relocate. The father in the case was British and the mother was Czech. They had met and married in England. They then had a daughter but the mother did not feel at home in the UK and so the family decided to move to the Czech Republic.
However, the father could not settle there and so after a few years the family returned to England. It meant their daughter had spent half her life in each country and could speak both languages.
The marriage then deteriorated and the mother went back to the Republic taking her daughter with her. The father was granted a declaration that the removal was unlawful and a court order that the child should be returned to England.
The mother complied but then applied for a relocation order. The court sent an officer to the Czech Republic to assess the potential impact on the child of being relocated. The officer’s report was favourable to the mother in terms of the support she had in place and the opportunities that would be available to the child.
The judge then decided that the mother would struggle if she had to stay in England and this would have an adverse impact on her daughter. He granted the relocation order and granted the father only limited direct contact.
The father appealed saying the judge had placed too much emphasis on the mother’s feelings and not enough on the views of the child. However, the Court of Appeal upheld the decision saying it was unsustainable for the mother to stay in the UK and that the child’s views had not been expressly alluded to because they did not favour one side or the other.
Please contact us if you would like more information about family law.
24 NHS manager awarded a total of £187,000 in ageism case
Damages of £187,000 have been awarded to an NHS manager who was passed over for a post running breast screening services because she was considered to be too old.
Linda Sturdy was 56 when she was discriminated against by Leeds Teaching Hospitals NHS Trust in 2006. The job she applied for was given to a colleague who is 13 years younger than her.
Last year an employment tribunal awarded Mrs Sturdy £33,500 damages for injury to her feelings and £5,700 in aggravated damages. Now she has been awarded a further £140,000 to cover loss of income and pension, together with interest owed.
Giving the ruling at the original tribunal hearing, Judge Christine Lee said the injury to Mrs Sturdy’s feeling was “about as serious as it gets”. She said Mrs Sturdy’s managers had failed to carry out an unbiased investigation when she complained of age discrimination and had behaved towards her in a way that was “high handed, malicious, insulting and oppressive”.
Please contact us if you would like more information about age regulations or any form of discrimination in the workplace.
25 Car crash victim awarded £500,000 for burns and injuries
A woman who suffered severe burns when her car caught fire in a road accident has received £500,000 in compensation.
The woman, who was 44 at the time of the accident, was driving on the motorway when her car was forced on to the hard shoulder by another vehicle which was travelling too fast. Her car overturned and caught fire.
It later transpired that the other driver had fallen asleep at the wheel. He was convicted of driving without due care and attention.
The woman suffered severe burns to 51% of her body including her face. She was in hospital for three months and underwent numerous operations and skin grafts. Several more operations followed over the next three years.
She continued to suffer from chronic adjustment disorder together with mixed anxiety and depressed mood. She had a phobia about driving and said she would never drive again.
A year after the accident, she tried to return to her job as a schools finance officer but had to use buses. The journey was too long for her and she had to take a lower paid job.
Due to her injuries she needed help with housework and could not manage her pet dogs as she could not control their leads.
The other driver admitted liability and agreed to pay £500,000 compensation in an out-of-court settlement.
Please contact us if you would like more information about making a personal injury claim.
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