Private Client Titles – Spring 2006

ASBO Not Conclusive

 

The issuing of an Anti-Social Behaviour Order (ASBO) against a tenant or a member of a tenant’s family is strong evidence that the tenant has failed to do enough to retain entitlement to possession of the property. ASBOs are only issued when anti-social behaviour is both persistent and serious. Where such behaviour is serious enough to warrant forfeiture of the tenant’s right of possession, the authority may apply to the court for a possession order. However, the issuing of an ASBO is not conclusive evidence that a repossession order is appropriate.

 

A tenant who is able to persuade the court that there is a reasonable basis for the belief that his or his family’s anti-social behaviour will stop has a good chance of retaining possession. The ultimate test is whether the possession order would represent a fair balance between the rights of the tenant and those of his or her neighbours.

 

In a recent case, which involved a mother whose 13-year-old son had a long history of vandalism and ‘appalling misbehaviour’, the continuing dreadful behaviour of the child who was subject to the ASBO, coupled with the absence of any signs of remorse or any reason to expect an improvement, meant that the tenant had forfeited her right to remain in the premises.

 

 

Be There or Beware!

 

In litigation it is sometimes necessary to obtain reports from expert witnesses and, in such cases, it is often important to make sure the expert witness is available to give evidence when the case is heard in court. The danger is that if an expert is not present to be cross-examined, the evidence they present may be regarded as of diminished value by the court.

 

Such was the case when an optician, who had suffered a whiplash injury when her car was hit from behind by another vehicle, sued the driver of the car that had run into her.

 

As a result of the injury, she had to reduce her working week from four to three days and included in her claim for damages was a sum of over £350,000 relating to loss of earnings and loss of future earnings. The defendant produced two letters from an orthopaedic surgeon which indicated that the victim’s reduction in working time was the result of her personal choice rather than a result of her injury. The reports were unclear, but questioned whether the accident was the true cause of the reduction in working hours.

 

The defendant did not produce the expert in court, so he could not be cross-examined. As the claimant was not given the opportunity to cross-examine the defendant’s expert, the judge took the view that it would be unfair for the court to be bound to accept the expert’s evidence.

 

On appeal, the claim that the judge had wrongly discounted the expert evidence was rejected. The original finding of fact stood.

 

When taking proceedings in court, it is essential to have experienced representation. We can help you ensure that your case is put as strongly as possible.

 

 

 

 

 

Better Royalties for Artists

 

With little publicity, the European Artist’s Resale Right Directive has been brought into effect in the UK in the form of The Artist's Resale Right Regulations 2006. These give visual artists the right to a royalty, commencing at 4 per cent of the resale of any of their works of art, if the proceeds of sale are €1,000 or more (or the Sterling equivalent). The royalty payable is based on a sliding scale and falls to 0.25 per cent for sales in excess of €1/2m, with a maximum royalty payable of €12,500. The liability for compliance with the Regulations lies with both the vendor and any ‘art market professional’ involved in the sale.

 

The Regulations will not apply in respect of works of art by deceased artists until 2010.

 

The right to resale royalties lasts as long as copyright lasts (70 years) and applies to any work of graphic or plastic art such as a picture, a collage, a painting, a drawing, an engraving, a print, a lithograph, a sculpture, a tapestry, ceramic art, an item of glassware or a photograph. It may neither be waived nor assigned by the artist, but will pass to his or her heirs on death. The right applies only to nationals of EU countries and other specified countries.

 

The tax and estate valuation implications of this for artists, vendors and owners of art are as yet unclear. The practical implication for the purchaser of original visual art which might be resold for an ‘above threshold’ figure is to make sure that you find out the identity, nationality and approximate age of the artist and sufficient information to be able to locate them if the art is ever sold. For artists, it is a good idea to mark original works, if possible, with your full name, address and the date ofcompletion of the work.

 

Contact <<CONTACT DETAILS>> if you would like advice on this matter.

 

 

 

Blow for Landlords as Councils Reveal Property Licence Charges

 

Landlords offering homes for multiple occupation will have been aware for some time that the 2004 Housing Act (HA) introduces a licensing requirement for landlords which is effective from April 2006. However, the scale of charges for the five-year compulsory licences has come as a shock to many, especially those in the ‘buy to let’ market, with some councils demanding over £1,000 for a licence.

 

Under the HA, a landlord who lets an entire home to three or more tenants who form two or more households and who share a kitchen, bathroom or toilet is required to register for a licence with the local council. The rules also apply to converted buildings containing self-contained flats if more than a third of the flats are let on short-term tenancies and the conversion did not meet the standards of the 1991 Building Regulations. However, councils have the ability to alter these requirements to insist that all landlords obtain a licence. There is a three-month period of grace for registration, but failure to register by 6 July 2006 is a criminal offence punishable by a fine of up to £20,000.

 

Under the new rules, licences will only be granted to ‘fit and proper’ people. A separate licence is needed for each property, which must comply with fire safety regulations and meet specified standards of accommodation.

 

Further information can be found at http://www.propertylicence.gov.uk.

 

If you rent out a property which is caught by the new law and have not yet applied for a licence, time is running out. If you would like further advice on this or any other property-related matter, please contact us.

 

Chancellor Declares War on Trusts

 

The Chancellor has declared war on the use of tax advantaged accumulation and maintenance (A&M) trusts by making them subject to an immediate ‘entry’ tax charge of 20 per cent on lifetime transfers that exceed the Inheritance Tax threshold. By deeming them to be ‘relevant property’ trusts, the 6 per cent ‘periodic’ charge and the ‘exit’ charge when trust assets vest will also apply, except where specific conditions are met. The main exceptions will be trusts arising on death where the beneficiary receives the assets at age eighteen or trusts which are created for the benefit of a disabled person.

 

Existing A&M trusts which provide that the assets in trust will go to a beneficiary absolutely at 18 – or where the terms on which they are held are modified before 6 April 2008 to provide this – will continue to have the current exemptions. Where they do not, the trust assets will become ‘relevant property’ from 6 April 2008 and the periodic and exit charges will apply.

 

Contact <<CONTACT DETAILS>> for advice on this or any other wealth-protection or trust matter.

 

Companies for Kids?

 

One of the less well-publicised clauses of the new Company Law Reform Bill, currently before Parliament, is that the minimum age for appointment as a company director in England is to be lowered to 16. However, the Secretary of State will be empowered to allow those under 16 to be a director in different parts of the UK, should it be deemed necessary.

 

If your entrepreneurial children need the benefit of a limited liability company, or you would like to involve a minor child as a director of your company, then this will soon be possible. At present, however, any shares in the company which are allocated to them will have to be held in trust for them until they reach majority.

 

Delay is Normal in Family Cases

 

According to a survey by the Law Society, family law cases involving domestic violence and/or vulnerable children who are at risk of suffering serious harm are being delayed in central London. Over 70 per cent of participants in a recent survey said their hearings had been delayed and delays of six months or more are not uncommon.

 

The problem stems from there not being enough judicial time allocated to the hearing of family cases. The Law Society has urged the Government to give priority to the matter, citing the case of an eight-month-old girl who is the subject of a custody battle between her mother and the local council. The case faces a further seven-month wait before it comes to court.

 

Says <<CONTACT DETAILS>>, “We do all we can to make sure cases are heard as speedily as possible, but we are at the mercy of the court lists. In some areas, the amount of time allocated for judges to hear cases is not adequate to allow them to be heard promptly. It is frustrating for all concerned, but is especially difficult in cases involving children, where the delay could possibly be to their detriment.”

 

Divorce, Prosecution, Confiscation: the VAT Man’s Double Whammy

 

A farmer who swindled nearly £1m from the VAT authorities thought he was onto a good thing, until he went through an acrimonious divorce from his wife.

 

Between 1997 and 2001 Richard Coate claimed to have bought and sold more than 400,000 sheep, through a non-existent Spanish livestock dealer, and fraudulently claimed over £850,000 in VAT using the Flat-rate Scheme for Farmers.

 

However, when his marriage broke up, his wife Faye informed HM Revenue and Customs (HMRC) of the fraud. On visiting his farm, HMRC’s investigators found only 29 sheep, compared with the 2,500 which Mr Coate’s records showed should have been present.

 

In February, Mr Coate was found guilty at Bristol Crown Court and sentenced to 45 months in prison. HMRC are also commencing an action under the proceeds of crime legislation to recover £800,000 of assets from his estate.

 

Also in February, two butchers who pleaded guilty to creating a six-figure tax loss were each given a ten-month prison sentence and a £300,000 confiscation order; a confiscation order for over £3m was granted against a man who evaded tax by means of undisclosed offshore bank accounts; and a family credit fraudster was fined £50,000 and faced a confiscation order for £71,000. Lastly, a Bournemouth man, who admitted three counts of false accounting and two of forgery in connection with an attempt to conceal £1/2m of assets on which Inheritance Tax (IHT) should have been paid, was jailed for three years, the first person to be prosecuted for IHT evasion in the UK by the newly established Revenue and Customs Prosecution Office (RCPO).

 

The RCPO is clearly intending to seek confiscation orders as a matter of routine in cases in which tax cheating is proved in the criminal courts.

 

Says <<CONTACT DETAILS>>, “The authorities are taking an increasingly rigorous approach to cases of serious tax evasion and VAT fraud. If you are notified of an impending tax enquiry, take professional advice as soon as possible.”

 

 

EU Rules on Free Movement Apply to Medical Services

 

A 74-year-old woman who was told she would have to wait three or four months for treatment for severe osteoarthritis and who decided as a result to be treated abroad looks set to win her battle to be compensated for the cost of her treatment.

 

Grandmother Yvonne Watts was suffering from such severe hip pain that she spent £4,000 to go to France for treatment. Bedford Primary Care Trust refused to approve the expenditure. Having initially been told she would have to wait a year for treatment in this country, Ms Watts saw a consultant in France who told her that her need for an operation was urgent. Returning to the UK, she saw another consultant who recommended that her surgery be moved up the waiting list, but she still faced a considerable delay. Accordingly, Ms Watts decided to have the treatment in France.

 

The Government’s claim that the EU rules which apply to the free movement of goods and services do not apply to medical services was rejected by the EU’s Advocate General, who concluded, “The absence of a clearly defined procedure within the NHS for considering applications for treatment outside the system…constitutes a restriction of … freedom to receive services.”

 

If the European Court affirms the judgment of the Advocate General, Ms Watts’s costs will be refundable.

 

 

 

First Payout for School Bullying

 

A woman from Wales who was bullied over a period of seven years at primary school and who suffered from depression has been awarded £20,000 in an out of court settlement. It is thought to be the first time that such a settlement has been made in Great Britain.

 

23-year-old Sophie Amor was awarded the sum even though the Council, Torfaen County Borough Council, did not admit liability. She was always tall for her age and was bullied throughout her time at school.

 

Her mother claimed to have told the head of the school in Blaenavon, Gwent, about the problem more than fifty times and also brought the bullying to the attention of the school governors, but nothing was done. When she was 14, Sophie attempted suicide and was taken out of mainstream education at that time. She claimed still to be traumatised by her experiences and had intended to take her claim to the High Court if it had not been settled by the Council’s insurers.

 

 

 

Government Considers Bankruptcy Shake-Up

 

Despite the fact that the Enterprise Act 2002 has been with us for only a few years, the Government is planning a further shake-up of the insolvency regime as a result of research reported by the Centre for Insolvency Law and Policy at Kingston University. This found that bankrupts consider that the new regime, which was intended to create alternatives to formal bankruptcy and to make the process less onerous than before, still leaves insolvent persons feeling that they had ‘few if any’ alternatives to bankruptcy.

 

The decision to look again at the law was influenced by the massive rise in personal insolvencies in the fourth quarter of 2005, which were up 57 per cent compared with the previous year. The most common reasons for personal insolvency are the abuse of available credit and business failure. Company insolvencies in 2005 were slightly down on last year.

 

The report recommends the eradication of the term ‘bankruptcy’ in cases in which the bankrupt is not culpable for the bankruptcy and recommends the division of bankruptcy into ‘business bankruptcy’ and ‘personal bankruptcy’. It also recommends that the conduct of consumer debtors (in particular lending institutions) be reappraised.

 

“If you are worried about the level of debt you carry, taking prompt advice may enable you to avoid bankruptcy by restructuring your affairs or making an individual voluntary arrangement,” says <<CONTACT DETAILS>>. “If you are concerned about debt problems, contact us.”

 

Home Information Packs

 

In a bid to reduce the stress and delay in the house buying and selling process, the Government is introducing ‘Home Information Packs’ (HIPs), which will have to be produced by the vendor of a property before it can be put on the market. Scheduled for introduction in 2007, the HIP will require a vendor to assemble prior to sale much of the information that is currently obtained during the sometimes lengthy survey and searches process. The vendor will bear the cost of producing the HIP when a property is put on the market. Currently, any survey and the relevant searches are paid for by the prospective purchaser. If the purchase does not proceed, for the buyer this is money down the drain.

 

All vendors of houses and flats in the UK will have to supply prospective purchasers with a HIP.

 

What is a HIP?

The proposed contents of the HIP are:

 

 

Also, for leasehold properties:

 

 

The home condition report will be used by lenders in the underwriting process for mortgage lending. It is based on a ‘level 2’ inspection, which will not be as comprehensive as a full structural survey but will be somewhat more detailed than the mortgage valuation report currently used by lenders.

 

The Government is taking steps to set up training for the estimated 7,500 inspectors who will be needed to carry out home condition reports.

 

It is estimated that assembling the contents of the HIP could add up to £1,000 to the cost of selling a home and there are concerns that the process will attract inexperienced and unregulated firms into the market, creating risks for both purchasers and vendors.

 

Contact <<CONTACT DETAILS>> for expert advice on property purchases and sales.

 

How Divorce Works

 

The basic requirements for obtaining a divorce in England and Wales are that a couple must have been married for a year, the marriage must be legally recognised under UK law and it must have broken down irretrievably. Irretrievable breakdown must be demonstrated to the court by one of five reasons or 'grounds':

 

 

In practice, if both parties want to be divorced quickly, then the most common ground on which to proceed is unreasonable behaviour. This is used when there has been no adultery and the parties wish to avoid the delay caused by the last three grounds. Unreasonable behaviour can be evidenced by, for example, violence or mental cruelty as well as more subtle complaints such as the exercise of unreasonable control. To support the claim of unreasonable behaviour, one party must agree to give a brief description of the behaviour in the divorce petition.

 

It is useful to understand the outline of the process and some of the legal terminology. The party to the marriage who makes the application, or petition, for divorce is known as the petitioner while the other party is called the respondent. The petition for divorce is delivered to, or served on, the respondent. The respondent then has 29 days in which either to admit that the petition is true or to defend the divorce – although defended divorces are very unusual. The respondent agrees by returning an affidavit, a signed statement of the truth, to the court.

 

Normally, a district judge will then decide on the date of a decree nisi, which is the first step towards the formal divorce. Six weeks after the date set for the decree nisi, the petitioner can apply for the decree absolute. When this is granted, the divorce is final. If the petitioner does not apply for the decree absolute, the respondent may do so three months after that date.  

 

It is beneficial if arrangements concerning any children from the marriage and the split of family assets are agreed without having to go to court. However, it is important to have good legal advice even if these decisions are made amicably. The court will always suggest mediation first in order to reach a mutually acceptable agreement between the parties.

 

In all, the divorce process is likely to take between five and eight months to complete. It will, however, take longer if there are disagreements over children or money which cannot be settled without the intervention of the court.

 

Contact <<CONTACT DETAILS>> for advice on any family law matter.

 

Human Rights Law Forces Care Backdown

 

Human rights legislation guarantees the right to respect for private and family life and this legislation is now being deployed against NHS trusts and local authorities by persons in need of care who are dissatisfied with the proposals put forward by the authority to meet those needs.

 

In a recent case a severely disabled person, whose family wished to care for her at home, sought a judicial review of the care package proposed by the South Western Staffordshire Primary Care Trust (the PCT), which proposed to care for her by placing her in a residential home.

 

The woman needed constant care, having had a severe stroke, and she also suffered from diabetes. There was a significant risk that she could die if not monitored constantly. After her discharge from hospital, she was cared for at home on an interim basis using agency nurses. Her parents wished this to continue, but the PCT refused to fund a long-term care at home package.

 

The High Court considered that the PCT’s refusal to fund the care at home treatment package, which was supported by various arguments (of varying quality and relevance) other than the cost argument, was unlawful. The reason for this was that the PCT had failed to consider the woman’s right to respect for her private life. Merely taking a decision conscientiously on a professional basis was not enough.

 

We can advise you regarding disputes with your council or health authority over care arrangements and similar matters. Contact <<CONTACT DETAILS>> for advice.

 

Landlords to Lose Right to Retain Deposits

 

The Government has announced that it is to set up a company to control the deposits paid to landlords by their tenants. The aim is to put an end to the problem caused by unscrupulous landlords who do not return deposits at the end of a tenancy. One in five tenants is said to be aggrieved at how their deposit has been dealt with at the end of their tenancy.

 

However, critics of the new Tenancy Deposit Scheme (TDS) point out that it does not contain any protection for landlords who find that a tenant has withheld the last month’s rent, which is also said to occur in approximately 20 per cent of cases.

 

Under the TDS, the deposit will be paid into escrow with the company and an arbitration system set up to resolve disputes between landlords and tenants over the amount of damage done to a property which is attributable to the tenant. Landlords will fund the scheme by payment of a fee and will have no right to the interest earned on the deposit during the period of the tenancy. Landlords who fail to put the deposit into the scheme within 14 days of receipt will be hit with a fine of up to three times the deposit. The Government is also drawing up guidelines as to what constitutes reasonable wear and tear, which is the responsibility of the landlord and not the tenant. The new system is intended to apply to properties rented after 1 October 2006.

 

For landlords, the TDS will mean extra costs and bureaucracy. For tenants, it will mean assurance that at the end of the tenancy, their deposit will not simply be pocketed by the landlord. Over £740m of deposits are reported to be held by landlords in respect of shorthold tenancies.

 

Says <<CONTACT DETAILS>>, “Landlords will not welcome the additional complexity this will bring, although assurances have been given that the extra cost of the scheme will be low. It is hoped that the new arrangements will give tenants confidence that in normal circumstances deposits will be refunded so there will no longer be an incentive to withhold rent rather than struggle to recover the deposit held by the landlord.”

 

 

 

 

 

Lasting Powers of Attorney – Government Reveals Plans

 

The Government has now outlined its plans for lasting powers of attorney (LPAs). The difference between these new arrangements and the existing enduring power of attorney (EPA) is that an EPA only allows the attorney to deal with the financial affairs of the person granting the power, whereas under the new arrangements the attorney can be allowed to make decisions concerning their health and welfare, if they are no longer able to do so themselves. LPAs will also allow a person to make an ‘advance direction’, commonly referred to as a ‘living will’, specifying in what circumstances they do not wish life-sustaining medical treatment to be given.

 

Powers of attorney are normally brought into use when a person lacks the ability to make decisions for him or herself. Under the plans, there will be a strict code of conduct for attorneys and any advance directions will have to be made in writing. The guidance sets out the procedures for making and changing an LPA and what needs to be done, in particular, where a living will is incorporated into the arrangements. It also stresses that such arrangements should be kept under regular review.

 

A period of consultation will now take place with a view to bringing in legislation effective from April 2007.

 

Says <<CONTACT DETAILS>>, “The LPA should make it much easier for families who have to deal with the affairs of persons who are not competent to make their own decisions, especially those suffering from illnesses such as Alzheimer’s disease and senile dementia. People should give consideration to these issues and make sure that if they create an LPA, it is done at a time when their mental competence is not in doubt.”

 

Loss of Will May Not Preclude Claim

 

The loss of the original of a will does not always mean that the will cannot be accepted for probate, as is illustrated by a case involving a gay couple, Mark Rowe and Barrie Clarke, who had lived together for several years.

 

In 2000, Mr Clarke had made a will passing his entire estate to Mr Rowe. A copy of the original of the will was sent to Mr Rowe’s mother. Mr Clarke died in 2005. It would appear that he was a rather disorganised man and the original of his will was never found. After his death, Mr Clarke’s brother, Kenneth, had come to the house and taken away several documents, although whether the original of the will was amongst them is not known. As next of kin, the brother obtained a grant of administration of the estate on the grounds that Mr Clarke had died intestate.

 

Normally, when the original of a will cannot be found, the presumption is that it has been destroyed by the person who wrote it. In such cases, an earlier will may be accepted as valid, if one exists. If not, the estate will be distributed in accordance with the laws of intestacy. In this case, dying intestate would mean that Mr Clarke’s family, not Mr Rowe, would inherit the whole of his estate.

 

However, in this case, it was known that Mr Clarke and his brother Kenneth were estranged from one another and there was no reason to believe that Mr Clarke’s affection for Mr Rowe had in any way diminished since the will was written. Accordingly, the judge ruled that although on the balance of probabilities Mr Clarke had lost or destroyed the original of the will, or it had been amongst the documents removed by Mr Kenneth Clarke, there was no evidence that his intentions had changed since he made the will. Accordingly, the copy of the original document held by Mrs Rowe was accepted as valid and Mr Kenneth Clarke’s grant of probate voided.

 

Says <<CONTACT DETAILS>>, “Just because the original of a will cannot be found, it is not necessarily the case that a copy of the document will not be accepted as valid if the circumstances warrant it. However, we do recommend that you ensure that your will is kept in a safe place at all times and that family members know where it can be found. We are happy to hold the original of your will in safe keeping should you request it.”

 

 

 

Negligence Must Be Sufficient as Well as Necessary to Create Liability

 

The trials and tribulations of Equitable Life have been the subject of countless column inches of newsprint since the July 2000 House of Lords’ decision that the mutual life assurer must honour the annuity guarantees given to many of its members to whom it had sold pension policies. The result was that in order to safeguard their ability to meet the guaranteed pensions, the Society was compelled to ring fence its investments in a way which will inevitably produce lower returns for those with-profits policyholders whose policies have not yet matured.

 

Recently, financial advisers, who had advised a senior employee of Ladbrokes to split his £2m pension pot and put part of it into an Equitable Life with-profits pension, found themselves in the Court of Appeal facing a claim by their client. His claim was for the difference between the projected pension from the with-profits fund and the pension due from a 5 per cent escalating pension, which was where the rest of his pension fund was invested. The claimant had not yet taken the pension, so had not yet suffered the actual loss which was the subject of the action.

 

However, the nub of the claim was that he had been advised not only to take the Equitable Life with-profits policy, but also he had been negligently (and incorrectly) advised that it was protected by 1975 legislation designed to give financial protection to policyholders in the event of the insolvency of an insurer. He claimed that had he known that the protection was not in place he would not have bought the policy.

 

The claimant was initially successful, but the financial advisers appealed to the Court of Appeal. There the decision was overturned. The reasons for the ruling were that for the claim to succeed, the claimant had to show that he was negligently advised in respect of the action that he took which caused the loss and that he would not have taken this action had he not been negligently advised.

 

The problem with the claimant’s case was that he had suffered no loss with regard to the non-application of the 1975 legislation, because Equitable was not insolvent and not likely to become so. The advice to enter into a with-profits fund was not itself negligent. The fact that he had been negligently advised with regard to the fund being protected was a necessary factor in the financial advisers’ advice being negligent, but it was not sufficient of itself to make the advice negligent.

 

 

New Scheme to Deal with Unsatisfactory Housing

 

The Government has introduced new rules to govern the way in which unhealthy or unsafe rented housing accommodation is to be regulated. The reforms create a ‘scoring’ system for residential properties, such as flats, which contrasts with the present system, which just defines properties as being fit or unfit for habitation. Under the new system, there are 29 categories of hazard and these are assigned to four classes of harm ranging from moderate harm to severe harm. The degree of harm is assessed with regard to both mental and physical wellbeing in both the short and long term and the risk of harm which is considered is any risk which arises as a result of a deficiency in the building.

 

The requirement for residential premises is now based on the principle that they should provide a safe and healthy environment for residents and visitors. Responsibility for assessment and enforcement rests with the local council.

 

If you believe that the property you are renting is unsafe or represents a risk to your health, it is necessary to persuade your local authority that it is appropriate to have the property inspected. A residents’ or community council or a justice of the peace can also raise a complaint with the council.

 

The council’s inspector has to assess the likelihood that during the 12 months following the assessment the occupier will suffer harm as a result of the identified hazard (this is done via the scoring system) and the range of potential outcomes that may result from such an occurrence. ‘Moderate’ harm is given a value of 10 points, serious harm is given a value of 300, severe harm carries a value of 1,000 and extreme harm (i.e. likely to cause death or permanent disability) carries a value of 3,000 points. The score for the probability of the occurrence happening is then multiplied by the appropriate value of the severity of harm, to give an overall score, which is allocated to a risk category (A, B, or C) based on the score.

 

An authority is obliged to act in regard to a category A risk, but has the power to do so if it chooses for category B and C risks.

 

Says <<CONTACT DETAILS>>, “The new regulations are intended to create a more logical basis on which action in respect of unsatisfactory housing can be prioritised. If you have problems with unhealthy or unsafe housing or problems with your landlord, we may be able to help you.”

 

Occupation Did Not Mean Possession

 

Under Inheritance Tax (IHT) law, in order for a gift to be effective for IHT purposes, it is necessary that the person making the gift does not have an ‘interest in possession’ of the gifted asset after the gift is made. This basic rule means, for example, that a person who gifts a property to his or her children, but continues to live in it, will normally find that it is treated as being part of their estate for IHT purposes, despite no longer being legally theirs, because they retained an interest in the gifted property.

 

A recent case considered the position when a man died, leaving his house to a discretionary trust. The will put the decision as to who could occupy the property at the discretion of the trustees, but stipulated that the property could only be sold with the agreement of the man’s widow. The trustees allowed her to live in the house.

 

When she died, HM Revenue and Customs decided that the widow had a taxable life interest in the property and the executors of her estate appealed to the Special Commissioners of Taxes. The Special Commissioners concluded that the fact that she had the right to prevent the sale of the property did not alter the fact that it was held by the discretionary trustees. Since she could not compel the trustees to allow her to live in the property, she did not have an interest in possession of it.

 

“Had the trust set up by her late husband’s will contained a direction to the trustees to allow the widow to live in the property, the decision would almost certainly have gone the other way,” says <<CONTACT DETAILS>>.“However, following changes announced in the 2006 Budget, such arrangements will no longer be effective for IHT purposes.”

 

 

Prescott Aims to End ‘Aerial Blight’

 

Satellite dishes may be very popular, but few if any would argue that they are beautiful. In a bid to square the circle between the negative visual impact of satellite dishes and other antennae and the need for people to have access to digital services, the Office of the Deputy Prime Minister has issued planning guidelines on the siting of aerials and satellite dishes. These are intended to comply with the ‘neutrality of technology’ required by the Communications Act 2003. The regulations will apply to all forms of receiving apparatus.

 

The present guidelines require that an antenna is sited in such a way as to minimise the impact on the external appearance of the building. This requirement will remain. The additional requirements for dwellings and buildings under 15m in height are:

 

·        up to two antennae are permitted, the larger of which shall not exceed 100cm in any direction and 35 litres in cubic capacity;

·        the maximum size for the second (smaller) antenna is 60cm in any linear direction and 35 litres cubic capacity;

·        antennae mounted on chimneys are restricted to the smaller of the above sizes. If there is a chimney, the antenna must not rise above it and must not in any event rise more than 60cm above the roof line; and

·        if the property has no chimney, the antenna should not rise above the roof line.

 

The regulations are different for buildings in conservation areas and National Parks, buildings taller than 15 metres, and those located in areas of outstanding natural beauty. Listed buildings continue to require planning consent for the siting of an aerial.

 

If you require advice on any planning matter contact <<CONTACT DETAILS>>.

 

 

 

 

 

 

 

 

Privacy – Where the Law Stands Now

 

The problem with privacy is that one person’s private affairs are often a matter of great interest to another person – which brings the law relating to privacy into head-on collision with the law relating to freedom of information and expression.

 

Traditionally, the courts have tried to skirt around issues relating to what is or is not an invasion of privacy, but the recent case in which Michael Douglas and Catherine Zeta-Jones sued Hello! Magazine, over surreptitious and unauthorised photographs of their wedding, eventually persuaded the court to recognise its role in the preservation of the right to personal privacy.

 

In the view of the House of Lords, photographs are similar in nature to other confidential property, such as trade secrets, and they could see no reason why the couple should not be protected from what amounted to a breach of confidence. This followed a European judgment, involving Princess Caroline of Monaco, which concluded that a public figure has the right to be protected from the publication of unauthorised photographs when they have a ‘legitimate expectation of being safe from the media’.

 

The attitude of the courts towards photographs is more robust than towards other material about a person, since they are regarded as inherently intrusive.

 

In a case involving model Naomi Campbell, the House of Lords proposed that information about a person was private if it was obviously private or if disclosure of the personal information would cause offence to an ordinary person. If information is private, then the court’s decision as to whether its disclosure is justified will depend on the relative strengths of the rights under the Human Rights Act (articles 8 and 10, which guarantee rights of respect for private life on the one hand and freedom of expression on the other) and the extent to which disclosure is in the public interest. The Lords ruled that the disclosures about Ms Campbell’s treatment for drug addiction were an unwarranted intrusion into her right to privacy.

 

Whilst these cases make the right to privacy seem strong, the situation is somewhat different if someone wants to prevent a ‘kiss and tell’ story, because in this case consideration must be given to the possible restriction of the person’s right to tell their story, which might conflict with their right to freedom of expression under Article 10. This argument won the day when Lord Coe failed in his attempt to prevent the publication of revelations of his affair with Vanessa Lander. Similarly, David and Victoria Beckham were unsuccessful in their application for an injunction to prevent disclosure of information about their private lives by their former nanny, even though she had signed a non-disclosure agreement as part of her contract of employment.

 

The law relating to the individual’s right to privacy is in something of a state of flux and it may be expected to be tested at intervals by the tabloid journals in particular, in spite of the prohibition in the code of practice of the Press Complaints Commission on photographing people in private places without consent.

 

Privacy – Where the Law Stands Now

 

The problem with privacy is that one person’s private affairs are often a matter of great interest to another person – which brings the law relating to privacy into head-on collision with the law relating to freedom of information and expression.

 

Traditionally, the courts have tried to skirt around issues relating to what is or is not an invasion of privacy, but the recent case in which Michael Douglas and Catherine Zeta-Jones sued Hello! Magazine, over surreptitious and unauthorised photographs of their wedding, eventually persuaded the court to recognise its role in the preservation of the right to personal privacy.

 

In the view of the House of Lords, photographs are similar in nature to other confidential property, such as trade secrets, and they could see no reason why the couple should not be protected from what amounted to a breach of confidence. This followed a European judgment, involving Princess Caroline of Monaco, which concluded that a public figure has the right to be protected from the publication of unauthorised photographs when they have a ‘legitimate expectation of being safe from the media’.

 

The attitude of the courts towards photographs is more robust than towards other material about a person, since they are regarded as inherently intrusive.

 

In a case involving model Naomi Campbell, the House of Lords proposed that information about a person was private if it was obviously private or if disclosure of the personal information would cause offence to an ordinary person. If information is private, then the court’s decision as to whether its disclosure is justified will depend on the relative strengths of the rights under the Human Rights Act (articles 8 and 10, which guarantee rights of respect for private life on the one hand and freedom of expression on the other) and the extent to which disclosure is in the public interest. The Lords ruled that the disclosures about Ms Campbell’s treatment for drug addiction were an unwarranted intrusion into her right to privacy.

 

Whilst these cases make the right to privacy seem strong, the situation is somewhat different if someone wants to prevent a ‘kiss and tell’ story, because in this case consideration must be given to the possible restriction of the person’s right to tell their story, which might conflict with their right to freedom of expression under Article 10. This argument won the day when Lord Coe failed in his attempt to prevent the publication of revelations of his affair with Vanessa Lander. Similarly, David and Victoria Beckham were unsuccessful in their application for an injunction to prevent disclosure of information about their private lives by their former nanny, even though she had signed a non-disclosure agreement as part of her contract of employment.

 

The law relating to the individual’s right to privacy is in something of a state of flux and it may be expected to be tested at intervals by the tabloid journals in particular, in spite of the prohibition in the code of practice of the Press Complaints Commission on photographing people in private places without consent.

 

Protecting Emergency Workers

 

Tougher laws aimed at combating the growing number of attacks on firefighters and other emergency workers have received cross-party support in the House of Commons. The Emergency Workers (Protection) Bill received its second reading in the House of Commons on 3 March. The Private Members’ Bill, which was introduced by Labour MP Alan Williams and which has the backing of the Government, seeks to make it a specific offence to assault, obstruct or hinder emergency workers in England and Wales. The offence would carry a maximum fine of £5,000 or a nine-month jail sentence.

 

The Fire Brigades Union recently published research showing that attacks on UK firefighters were currently numbering at least 40 a week with the problem getting worse. The level of violence in the NHS is also rising, with more than 100,000 incidents a year.

 

Short Marriage Widow Sees Financial Provision Cut

 

A judge who failed to explain how he had reached his decision as to the amount that should be awarded to a widow from her late husband’s estate, in order to allow her to meet her future financial needs, recently found his decision overturned by the Court of Appeal. The widow in question had made a claim under the Inheritance (Provision for Family and Dependants) Act 1975, which allows dependants to apply for reasonable financial provision from the estate of the person on whom they were dependent if appropriate provision is not made in the will.

 

In this case, the estate was valued at £1.4m and belonged to a man who died 13 months after marrying his cleaner, whom he had only known for six months prior to the marriage.

 

In the lower court the judge ruled that the widow should receive £800,000 by way of a lump sum, but failed to explain the reasoning behind his decision. The executors appealed on behalf of the beneficiaries, claiming that the award did not reflect a proper balance of interests between the widow and the family. The Court of Appeal found that the judge’s reasoning was flawed in several respects and considered that, given the brevity of the marriage, the original apportionment might not be appropriate.

 

It was decided that the widow should receive £600,000 which, after tax and legal costs, amounted to approximately 60 per cent of the value of the net estate.

 

“This case is one of a series of judgments (mainly in the divorce courts) involving short marriages and high value estates,” says <<CONTACT DETAILS>>. “In circumstances such as these, case law is very persuasive and although settlements must be decided on the relevant facts, the quality of legal representation is of critical importance.”

 

 

When a Delay is not a Delay

 

Few things are as likely to get a holiday off on the wrong foot as a flight delay. Under EU regulations, airlines are now required to provide meals and accommodation for passengers when there are significant delays in flights. They must also pay compensation when flights are cancelled, unless this is because of ‘extraordinary circumstances which could not be avoided even if all reasonable measures had been taken’.

 

The compensation tariff awards passengers €250 for the cancellation of any short flight (under 1,500km), €400 for flights within the EU of more than 1,500km and for other flights between 1,500 and 3,500km and €660 in compensation for the cancellation of any flight of 3,500km or more. The compensation is reduced if re-routing reduces the delay.

 

One issue which has not been clearly addressed is when a delay becomes a cancellation. Recently, a dispute between Thomas Cook Airlines (TCA) and a disgruntled passenger provided guidance on the view that the courts might take.

 

It involved David Harbord, an economist who has taught at universities throughout the world, who was flying to Vancouver from Stansted Airport last year. The flight was cancelled and the passengers were told to board buses to Manchester, where the flight would commence the following day using the same flight number. Mr Harbord refused to travel and made an alternative booking. He then sued TCA for compensation.

 

TCA argued that no compensation was payable. In their view, the flight was delayed, not cancelled. Secondly, the switch was made necessary by an engine problem on an aircraft, which was an unforeseen fault which constituted extraordinary circumstances which could not be anticipated. The fault was, however, with a different aircraft, not the one on which Mr Harbord had been scheduled to travel. TCA had cancelled his flight in order to make best use of their fleet and minimise delays to their passengers as a whole.

 

The airline’s arguments were rejected. The occurrence of a fault in a plane other than the one which was to be used for the flight could not trigger the ‘get out’ clause for cancellation. A flight that leaves from a different airport on a different day is not the same flight delayed, but a different flight, even if it bears the same flight number.

 

 

 

 

 

 

 

 

When a Haircut is a Crime

 

Any parent who despairs over their child’s choice of haircut should avoid taking the direct approach, following a decision in a recent case.

 

The case involved a claim by a woman whose former partner had cut her hair against her will. He was charged with assault causing actual bodily harm. When his case was heard by the local magistrates they threw it out, accepting the argument that there was no case to answer because the woman had suffered no harm in the sense of bruising or damage to any of her living tissue and also that she had suffered no psychological harm. They accepted that hair, which is not living tissue, is not part of the body.

 

The Director of Public Prosecutions (DPP) appealed successfully against the decision, arguing that it had been wrongly decided. In the DPP’s view, ‘actual’ means not trivial or insignificant and ‘bodily’ means of the body. The fact that hair is not living tissue does not mean it is not bodily.

 

“The decision means that cutting someone’s hair against their will is a crime,” says <<CONTACT DETAILS>>, “so if your child’s hairstyle is driving you to        distraction, you should use persuasion, not coercion.”