Care Assessment Must Consider Child’s Interests
When a local authority carries out a care assessment to determine the needs of a child, the principal object, which must remain in focus at all times, is the child and his or her needs.
Recently, the court heard a case which involved an autistic child with learning difficulties and health problems. The child’s mother was struggling to cope with looking after him at home and a care assessment was ordered to be carried out.
The assessment found that the mother was having such difficulty coping with the boy that her mental and physical health were being impaired. It concluded that the child should be moved to a boarding school which, having previously assessed him, would be able to cope with him.
The local authority’s education and social services panel met some months later and a second assessment was prepared by a social worker. This concluded that the initial assessment had been unduly influenced by the mother’s claim that she was unable to cope and recommended that an additional support package (largely undefined) be given to enable the child to remain at home.
The mother applied for a judicial review of the decision on her son’s behalf, contesting it on several grounds, but most particularly because the local authority had failed to consider the educational, health and social care interests of the child.
The court agreed that the initial care assessment could be considered to place undue emphasis on the needs of the mother rather than the child, but was of the view that the second assessment’s conclusion, that the ‘package of support’ was preferable for the child to a residential placement, was seriously flawed, especially as the package of support to be provided was ‘woolly’ and largely undefined.
At issue here was not only the extent to which the local authority had properly considered the needs of the child – which is their primary duty in such cases –
but also the extent to which it had made a defensible case that its care plan met the child’s needs.
Says <<CONTACT DETAILS>>, “Local authorities will often suggest plans which avoid residential placements in order to save costs. Where a residential placement is in the child’s best interests, the decision can be fought. A lack of a clear and coherent support strategy should also be called into question as, in practice, vague promises of ‘support packages’ can often fail to amount to much.”
If you are not getting the support you require from your local authority, contact us for advice.
Cases Show Court Hostility to Poor Behaviour
Three recent cases illustrate the point that even in disputes involving land, the behaviour of a landowner can be an important factor when it comes to the final decision of the court.
In the first case, the claimants (the Owers) went to court to obtain a ruling that their property had a right of way over a track of unknown ownership, which adjoined their property and was the only means of access to it. The track and another adjacent property had originally been part of the same property. When the Owers bought their property, the track was fenced off from the adjoining property. When that property was sold to a Mr Bailey, they allowed the fence to be removed so that he could move in. Subsequently, Mr Bailey claimed title to the land. He blocked the track repeatedly with his tractor and erected gates at the end of it, which he insisted remained shut. This state of affairs persisted for a period of four months before the court could rule on the matter and confirm the existence of the Owers’ right of way. Because Mr Bailey had acted in a spiteful and malicious way, aggravated damages were awarded to the Owers in the sum of £4,500. Damages for loss of amenity were assessed in the sum of £2,000.
In a second case, a company was unsuccessful in obtaining an injunction to prevent interference with its right to light because it had boarded up windows which would have suffered the loss of light throughout the ‘prescription period’. The court awarded a small amount of monetary compensation instead.
In the third case, a landlord who sued a tenant for non-payment of service charges was faced with a counterclaim from the tenant. The tenant successfully claimed that the landlord had failed to make all reasonable endeavours to repair the roof of the building. The court agreed with the tenant and ruled that he should not bear any liability for the roof repairs.
What these cases all show, in different ways, is that in normal litigation cases the courts will look at the behaviour of the parties in a dispute before making its decision. Litigants who wish to have a successful outcome would do well to ensure that their own behaviour cannot be criticised.
Check Your Will
A recent case has shown the wisdom of checking your will to make sure that it accurately reflects your wishes. Not only can these change over time, but it is possible that your wishes were misunderstood at the drafting stage, as happened in this case. If someone dies and this has happened, it may be possible to go to court to have the will rectified, but this will inevitably involve unnecessary expense and delay.
The circumstances were that a man named Guy Goodman and his wife, Jennifer, wished to buy the property owned by Mr Goodman’s father, Geoffrey. A deal was done whereby Jennifer agreed to buy the property by paying Geoffrey £3,000 per month for 20 years. He agreed to pay her a rent of £1,000 per month, producing a net payment from Jennifer of £2,000 per month.
When Guy and Jennifer had their wills drafted in March 2003, these made provision for a monthly allowance of £2,000 be paid to Geoffrey in the event that they predeceased him. In March 2004, Guy died. Geoffrey and Jennifer disagreed over what his will was intended to accomplish, with the result that Jennifer had to go to court to have it rectified because she argued that it had not been intended to benefit Geoffrey in this way.
In the view of the court, what had occurred (and the solicitor’s testimony confirmed this) was that Guy and Jennifer’s instructions had been misunderstood. The result was a pair of wills (Jennifer’s had the same clause) which gave a legacy when the intention was merely to acknowledge the existing agreement for the purchase of Geoffrey’s property and the rental agreement. The court considered the fact that Jennifer’s will was couched in the same terms as Guy’s and that the legacy was to last only while Geoffrey occupied the property as strong evidence that this was the case, as was the fact that the allowance was equal to the net payment under the agreement.
This case is one which could have been avoided had the wording of the draft wills been carefully considered before they were signed and witnessed. Indeed, had the will been looked at carefully, and the erroneous clause spotted, the writing of a new will or making of an amendment to the existing will would have been straightforward.
If your will was written some years ago, or your family circumstances have altered, it might need to be changed. If you find anything in your will that you do not understand or which does not reflect your wishes, contact <<CONTACT DETAILS>> for advice.
Child Contact – Changes Afoot
The new Children and Adoption Act 2006, which received Royal Assent last summer, makes changes to the way in which contact between divorcing parents and their children will be governed.
Under the Act, when deciding on contact arrangements, the court is empowered to make a ‘direction’ requiring the person named to take part in an activity that promotes contact with the child concerned. Such activities could include, for example, counselling or anger management training. A contact activity direction cannot include requiring medical or psychiatric assessment or treatment however.
Contact activity directions cover the interim stage between the commencement of proceedings and the court’s disposal of them. A contact activity direction is made only on a parent of the child and can be made when the contact arrangements are disputed and the habitual residence is in England or Wales.
When such a direction is made, the person who wishes to have contact with the child must comply with it. It must specify both the activity and the person who will provide it. This means that the court must consider not only the suitability of the provider of the activity but also the information about the person being ordered to undertake the activity, to ensure the activity is suitable. Such a direction can be applied for by one of a number of people who have contact with the child, as well as by the child itself.
If the terms of the contact activity direction are breached, the court can make an ‘enforcement order’, which involves the imposition of an unpaid work order (‘community service’). This must be preceded by a warning notice and the court must be satisfied that the enforcement order is necessary to obtain compliance with the contact activity direction. The court must also be satisfied that the effect of the enforcement order is not out of proportion to the seriousness of the breach.
Where the breach of a contact activity direction has a financial implication, the court can order compensation to be paid if financial loss is suffered.
The aim of the changes, which are somewhat more complex and far-reaching than outlined above, is to protect the welfare of children when a couple divorce. It remains to be seen how effective this raft of new legislation will be, as there is no extra resource provision being made available to monitor compliance with contact activity directions.
Our family law department can help you with any aspect of family law.
Children and Contracts
Children and contracts normally do not mix. When a child enters into a contract, it is normally voidable (cancellable) by them. However, there are some contracts which can be made by children which are not voidable. These are called ‘contracts for necessaries’. These include a limited number of things, but can include education or employment. A recent case involving England footballer Wayne Rooney illustrates the point that contracts entered into by children will only be binding on them in certain circumstances.
Mr Rooney (and his father) had signed a two-year contract when he was 15 years old with sports management company Proform Sports Management Ltd. (PfSM). He was at that time contracted to Everton FC on youth terms. The idea behind the contract was that PfSM would represent him when his contract with Everton came up for negotiation when he was 17. The Rooney family decided to change Wayne's representation to Proactive Sports Management Ltd. (PaSM) and wrote to PfSM to advise them that he did not intend to renew his contract with them.
PfSM claimed that PaSM had induced Mr Rooney to breach his contract and had acted unlawfully in interfering with PfSM’s contract with him.
The first point at issue was whether the contract between PfSM and Mr Rooney was one that was a contract for his benefit as a minor and one which was enforceable. As he was already signed to Everton when the contract with PfSM was undertaken and, under the Football Association’s rules, could not enter into a full-time contract with the club until he was 17, the court held that the contract was voidable by him.
The law provides that it is not a tort (a wrong giving a right to damages) to procure the breach of a contract which is voidable, where the person who terminates the contract is a minor who therefore has the right to avoid the contract. Accordingly, the claim against PaSM failed because even if they had procured the breaking of the contract, there was no claim because the contract was voidable.
The decision in this case could quite possibly have gone the other way if PfSM had been able to persuade the court that the contract was a contract for necessaries. Had Mr Rooney not already been signed by Everton, that might have been the case.
Debt Managers to be Regulated
Spiralling levels of personal debt have led to a big increase in the number of people struggling to manage their debts and to the springing up of numerous debt management companies which promote themselves as being able to help individuals through their financial crises.
As is typical with unregulated industries, there have been many complaints about the quality of the service offered by what have become known as ‘IVA factories’, because frequently the solution offered is to enter into an Individual Voluntary Arrangement, which may not always be the best option available.
Recently, twenty debt management companies have announced that they are to set up a regulatory body, by establishing the Debt Resolution Forum (DRF), which will act as an independent overseer with the aim of promoting best practice in the industry. The DRF is expected to have the power to fine members who fail to act appropriately towards either debtors or creditors and to have the authority to publicise such decisions.
The DRF will be backed by the Insolvency Practitioners Association, which will audit members of the DRF for compliance with best practice and investigate complaints.
“The creation of a regulatory regime covering debt management companies is to be welcomed,” says <<CONTACT DETAILS>>, “but it will clearly take time to see if the regulation is effective and comprehensive. If you have problems managing your personal debt, take professional advice sooner rather than later.”
Divorce – The International Dimension
Approximately one in six marriages in the European Union is between persons of different nationalities. Not surprisingly, approximately one in six divorces also involves spouses of different nationalities.
This can make for some complexity on divorce as to which country's law should apply to the divorce proceedings. This is eased to some extent by the fact that some jurisdictions will apply the law of the nation of the person being divorced, rather than their own law, when appropriate. For divorce proceedings commencing in this country, UK law is applied no matter what the nationalities of the divorcing couple are.
Recently, the UK has opted out of an EU proposal that seeks to set a list of criteria for deciding which country’s law should apply on divorce, the main criterion being the country in which the couple had its last home. This will no doubt come as a relief to some, as the UK’s approach to financial settlements is among the most generous in the world. Also, prenuptial agreements are not binding in the UK, as they are in many European countries – most of which also exclude from the pool of assets to be divided on divorce any assets acquired through inheritance.
By and large, where there is doubt about which country’s law should apply, the divorce will be dealt with under the law of the country in which the divorce proceedings were first commenced. This explains why the UK is a favoured place to commence proceedings in ‘big money’ cases.
Duty of Care – Judge’s View Acceptable
An interesting attempt at a defence came to nothing in a recent traffic accident case.
It involved a driver who, having missed his turning, decided to do a U-turn in the road. The visibility where he chose to carry out the manoeuvre was poor for drivers approaching from the other direction and an accident ensued.
The driver who made the turn was hit by the second of two approaching cars which were travelling together at high speed. The driver of the first car managed to avoid him, but the driver of the second car hit him, causing him a serious injury.
When the driver who was hurt sued for damages, the judge found that undertaking the U-turn in an unsafe place made him liable for his injuries through his own neglect or, if the driver of the car that struck him were liable, then there would be contributory negligence of 80 per cent (meaning damages awarded would be reduced by that percentage). In the judge’s view, the driver of the second oncoming car had owed a duty of care to maintain a safe distance between his car and the car in front of him. This did not extend to the car which made the U-turn however.
The injured man appealed against this decision, arguing that the judge was wrong in his view and that the driver of the second car did owe him a duty of care. The Court of Appeal rejected this argument, agreeing that the driver of the second car would have been unable to stop even if he had not been driving as close as he was to the car in front of him.
Whilst in general a driver has a duty of care to all those who might reasonably be expected to be affected by his driving, in this case the judge in the lower court was entitled to take the view that the outcome would have been the same even if the second driver had not been driving too close to the car in front. The appeal was dismissed.
“This is a somewhat surprising decision, given that the driving of the defendant clearly left much to be desired,” says <<CONTACT DETAILS>>. “If you are injured in an accident that is not your fault, contact us for advice on your legal rights.”
Forced Marriage a Nullity
Although the law recognises arranged marriages as being legitimate, a marriage which is entered into under duress can be annulled by application.
A recent case illustrates that duress in such cases need not involve threats of physical violence.
The case concerned a sixteen-year-old girl who was born in the UK to Pakistani parents. She went on holiday to Pakistan with her mother, who refused to let her have her passport back. The date of her return flight passed and she realised that her parents intended that she should marry a man to whom she had been introduced in Pakistan.
The girl’s parents made various inducements to persuade her to marry the man, including telling her that they would kill themselves if she did not. They also refused her pleas to be allowed to return to the UK, saying she could only return after she had married.
After fifteen months she reluctantly agreed to the marriage, but it was never consummated. She later persuaded her parents to allow her to return to the UK. When she did so, she immediately applied to the UK court to obtain a decree of nullity.
Over the years, the courts have gradually taken a less strict view of the degree of pressure or threat of violence which is necessary to constitute duress when considering cases of this type.
In this case the presiding judge regarded that suffering ‘prolonged emotional pressure and blackmail’ was sufficient to make the young woman’s marriage a nullity.
We can assist you in all legal matters affecting families and relationships. Contact <<CONTACT DETAILS>> for advice.
Holidaymakers Beware ‘Package Holiday’ Ruling
If you book a holiday comprising travel, accommodation and possibly even car hire, with a travel agent or over the Internet, you may well think you have booked a package holiday. A recent decision, however, may shatter that illusion.
The problem stems from the reduction in sales of ‘traditional’ package holidays, which has been caused by the advent of low-cost airlines and the ease with which travel arrangements can be made and accommodation booked over the Internet. This has led to a 20 per cent decline in the number of bonded package holidays sold in recent years.
Package holidays are covered in the UK by the Air Travel Organisers’ Licensing (ATOL) scheme, the main advantage of which is that if the tour operator goes out of business, the holidaymaker’s return travel will be paid for by ATOL. The Package Travel Regulations require travel agents who organise package holidays to pay a fee to ATOL for the bond which guarantees this.
In the case in point, the Association of British Travel Agents (ABTA) won a victory which could limit the rights of their customers in the event of the insolvency of the tour operator. The case turned on whether the sale of the various holiday services constituted a ‘package’ if the individual components were separately provided. In the view of the Court of Appeal, a ‘package’ only exists where ‘the services are sold or offered for sale as a pre-arranged combination’, and that this is a matter of fact, depending on the circumstances in each case. Just because, for example, flights and accommodation are sold to you at the same time, it will not necessarily mean that you have bought a package holiday.
In practice, therefore, it seems that travel agents who are willing to undertake a little extra paperwork may be able to avoid paying for the ATOL bonding. This may enable them to reduce the price of their holidays in a fiercely competitive market, but would also reduce the protection provided for their customers.
Says <<CONTACT DETAILS>>, “Customers buying holidays should be clear about whether the holiday they are buying is covered by the ATOL bond. They should also make sure that they review their holiday insurance carefully to make sure that it fits their needs. Policies vary widely in coverage and cost. Almost all countries charge for medical care and these costs can be very high indeed. In particular, if visiting North America a high level of medical cover is normally deemed a sensible precaution.”
Increased Sentence for Dangerous Driver
A driver who sped away after hitting an elderly woman, who died as result of the injuries she received, has had his sentence increased on appeal by the Attorney General.
Daniel Chubb was driving at excessive speed when the accident happened. It was light and weather conditions were good when he struck the woman, who was halfway across the road. He did not stop and attempted to hide his involvement in the accident. Mr Chubb was not licensed to drive as he suffers from impaired vision. Initially, he denied involvement, but at the trial he pleaded guilty to causing death by dangerous driving. He had a previous conviction for driving while disqualified and leaving the scene of an accident.
At trial, he was sentenced to four years’ imprisonment, the judge applying a ‘discount’ of a third to the sentence because of the guilty plea. The Attorney General appealed the sentence as being too lenient.
The Court of Appeal agreed, considering that the ‘starting point’ for the sentence should be nine years, not six and a half years as used by the judge. It substituted a sentence of imprisonment for five and a half years.
The maximum sentence for causing death by dangerous driving has recently been increased from 10 to 14 years. Under the new sentencing tariff, a longer sentence would be likely. The Attorney General is showing an increasing willingness to appeal against sentences which seem to be too lenient.
Information Commissioner Gets Tough on Cold Callers
The deluge of ‘cold calls’, which for the recipient means a sales-oriented call or sometimes just a dead line, is an irritant for millions in the UK. Since it is estimated that the average telephone owner appears on over 700 marketing databases, the absence of compliance with the rules applying to the making of cold calls, on the part of the marketers, has been a matter for regret for some time – especially as the number of cold calls made annually is in the region of 1.5 billion.
However, it appears that the Information Commissioner (IC) is about to get tough on some of the worst offenders. The IC's office has issued an enforcement notice requiring five firms to desist from calling individuals who have already expressly told them that they wish to be removed from their databases, or who have registered with the Telephone Preference Service (TPS).
If the firms fail to comply with the notice, they will be fined, and such fines are potentially unlimited.
If you are plagued with unwanted cold calls, here are steps you can take:
- Join the TPS. This is free and only takes a few minutes. It is unlawful for companies to make cold calls to members of the TPS and they should vet their databases against the TPS list. An online application can be found at http://www.tpsonline.org.uk/tps/.
- If you receive a call, insist that the company does not call you again. They must comply if asked and requesting that you telephone another number in order to arrange this is not acceptable; and
- Complain. The Information Commissioner’s Office has an online complaint form at http://www.ico.gov.uk/complaints/privacy_and_electronic_communications.aspx.
Information to be Less Free
Under the Freedom of Information Act 2000 (FIA), a variety of information can be requested from governmental organisations and public bodies. However, requests can be refused on appropriate grounds, one of which is the cost of obtaining the information sought. Currently, if the cost of finding and extracting the information sought exceeds £450 for public authorities or £600 for central government (calculated at a rate of £25 an hour), the request can be denied.
The Government’s management accountants must have been hard at work recently, as it has now been proposed that the calculation of the cost used in determining whether a request will be granted or not should include ‘consideration and consultation time’ and not just the cost of the time taken to extract the actual information sought.
Another change which has been mooted is a plan to limit MPs, journalists and pressure groups to making only one request under the FIA every three months.
The changes will make it easier for requests for information made under the FIA to be turned down. Already, a third of requests are not fully granted. It would seem that these changes will make it more likely that future requests will be denied on the grounds of cost alone.
Libel and the Public Interest
The House of Lords has recently heard a case which has led to more certainty as to when a ‘public interest’ defence will be successful against a suit for defamation.
Actions for defamation or libel are brought when allegations are made against a person or organisation which cause a loss to them or, in the case of an individual, distress.
In the case in point, a Saudi businessman brought a claim for damages for defamation against the European Wall Street Journal (WSJ), which published the information that the businessman’s corporate bank accounts were being monitored by the Saudi authorities in connection with their possible use for channelling funds to terrorist organisations.
The WSJ’s defence was that the article it had published was in the public interest (which was clear) and that it had acted fairly and responsibly in gathering the information on which it was based.
In the first instance, the jury found that the article was defamatory. However, the court decided that since the loss suffered by the company was negligible, any damages would be nominal.
The Court of Appeal upheld the original verdict on appeal, concluding that the publication of the article prior to giving the company the opportunity to comment on it meant that the WSJ has not acted responsibly and fairly.
The WSJ appealed against this decision and won its case. The House of Lords accepted that the standard of professionalism and editorial control met the test of being ‘responsible journalism’, giving further assurance to news editors on where the line can be drawn on what constitutes responsible journalism when writing an article on a matter of legitimate public interest.
Says <<CONTACT DETAILS>>,“Although newspaper editors will see this as a vindication of normal news gathering processes, for an individual the sensible approach is to make sure that nothing written nor said in public can be regarded as defamatory. Such cases are traditionally very expensive indeed to fight and in this area discretion is normally much the better part of valour.”
Medical Claim Not Always Against Hospital
When a patient suffers from post-operative problems, it is normal for any resultant legal claim to be made against the health service provider.
Recently, however, a case of this kind was (unusually) dealt with under consumer law.
It involved a hip prosthesis, which was fitted during a hip replacement operation. The device split in two after implantation and had to be replaced. When it was removed, it was found to be defective and the patient sued the manufacturer, alleging that the defect causing the fracture was present when the prosthesis was made and that it had been supplied in a defective state to the hospital.
In this instance, the claimant failed to prove the case. The manufacturer’s quality control and inspection procedures were such that the court took the view that the prosthesis was not likely to have been defective when supplied.
“Even though the claimant was unsuccessful on this occasion, it does show that normal consumer law can be used in circumstances where the facts permit,” says <<CONTACT DETAILS>>.
New Corporate Options for Charities
The Charities Act 2006 was given Royal Assent in November 2006. It gives additional powers to the Charity Commission to suspend or remove trustees from charities or to give specific directions for the running of a charity in order to protect it. The Act has also created a new way in which charities may organise themselves, in the form of the Charitable Incorporated Organisation (CIO). The CIO will differ from a ‘normal’ not-for-profit charity company, the usual model for which is the company which is limited by guarantee. The main advantage of the CIO is that it avoids the ‘double regulation’ which other forms of charitable company suffer because they are regulated by both the Charity Commission and Companies House. It is worth pointing out that one effect of the Companies Act, which received Royal Assent on the same day, is to make the administration of small companies less burdensome.
The legislation follows the recent introduction of Community Interest Companies (CICs), which are in essence normal limited companies which are set up to pursue socially beneficial ends rather than profits. CICs are governed by company law. They are not, however, charities. The advantages of the CIC form over a charitable form are that it can pay its directors without having a constitution which specifically allows payment, or the consent of the Charity Commission, and that it can obtain outside equity investment. This allows CICs to seek external investment, which can aid growth. However, the amount of profit CICs are allowed to distribute is limited and they are not able to take advantage of the very beneficial regime of tax reliefs which apply to charities.
The CIO has several advantages for charities, the main ones of which are that the trustees will have limited liability and that the trustees and members can be the same people. This is likely to make it significantly easier to find trustees with professional skills.
It is relatively straightforward to convert an unincorporated charity or charity which is a company limited by guarantee into a CIO and, for many charities, this may well be a sensible thing to do.
If you need advice concerning the most appropriate structure for a charity you are involved with or setting up, please contact <<CONTACT DETAILS>>.
New Sentencing Guidelines for Thieves
Muggers and thieves who rob elderly people will face stiffer penalties if the proposals in a new consultation paper are adopted.
The Sentencing Advisory Panel has recommended that stealing from an elderly person’s home should lead to a sentence of at least 36 weeks’ imprisonment (maximum 18 months) and that theft with violence or the threat of force should bring a minimum sentence of two years’ imprisonment (maximum five years).
These sentences would apply to a first-time offender who pleads not guilty to the charge. Sentence 'discounts' are given to offenders who plead guilty to crimes, but sentences for repeat offenders are usually more severe.
The consultation on the proposals ends in late January 2007.
Noisy Pubs – What Can be Done?
With many licensed premises opening until late at night, problems of rowdy behaviour by night time revellers can be considerable for people who live in the surrounding area.
If a local pub or club becomes a nuisance to those living nearby, what steps can be taken?
Clearly, one option is to complain to the local authority and to keep complaining if things do not improve. Most licensing committees will put the licence holder under considerable pressure to bring about improvements if complaints continue to be made. Making recordings of the noise or other anti-social behaviour being complained of can strengthen one’s case.
However, before going down the ‘official route’, here are some things you can ask the licensee to do which might help you reach a solution which will preserve goodwill all round. You can request that they:
put up signs in the car park and near the exits reminding customers that it is a residential area and requesting that noise be kept to a minimum;
give out sweets or lollipops to customers leaving late at night – the idea being that they are too busy chewing to make noise. This novel approach has proved effective in many instances;
control the volume of any music they play;
leave doors shut where possible, so that sound is controlled;
ask taxi drivers to turn off their engines while they wait and to refrain from sounding their horns on arrival;
instruct staff and security people to intervene when customers are rowdy; and
advise households in the neighbourhood in advance when a late licence or function likely to cause extra noise is scheduled.
If all else fails, pressure can be exerted on local environmental health officers. They have the power to bring prosecutions against pubs which create excessive noise between 11pm and 7am, which can lead to fines of up to £5,000. If necessary, a noise abatement notice can be issued. Failure to prevent noise nuisance after the issue of a noise abatement notice can lead to a fine of up to £20,000 and/or six months’ imprisonment for the licensee.
Two other potential weapons are also available. The council can apply for an anti-social behaviour order, if class A drugs are dealt or used on the premises or if there is serious nuisance or disorder. If granted, this can lead to the closure of the pub for up to three months. The local authority or environmental health officers can also close a pub for up to 24 hours on the grounds of noise nuisance, as can the police on the grounds of public nuisance. The long stop is the council’s licensing committee, which will no doubt look less favourably on renewal applications for ‘problem pubs’.
If your neighbourhood suffers from excessive night time noise or rowdiness, we can advise you as to your best course of action. Contact <<CONTACT DETAILS>>.
Option Agreement Binding on Landlord Despite Rent Arrears
A landlord whose lease contains an 'option to buy' clause cannot avoid selling the property if the tenant exercises the option, even if the tenant is behind with the rent.
A recent case saw a landlord, who refused to sell the freehold of a property to a tenant on these grounds, ordered by the court to complete the sale.
The tenant had a five-year lease over the property which contained an option to buy clause. The tenant wrote to the landlord stating that he wished to exercise the option to purchase the property. The landlord refused to accept the notice and issued proceedings for possession of the property because of the arrears of rent. The tenant went to court for an order of specific performance over the property purchase. A specific performance order is used in cases involving breach of contract, where one party to the contract refuses to perform its obligations under it. The order requires them to perform their contractual obligations as set out in the contract. In this case, the performance required under the contract was the sale of the property to the tenant under the option agreement.
The landlord argued that the tenant’s notice was not validly served and that a clause in the option agreement, which stipulated that the purchase must be completed within two years, was not complied with.
The court rejected these arguments ruling that the option notice was validly served by the tenant and that the clause which said the purchase had to be executed within two years was only part of the legal mechanics of the agreement. Furthermore, the arrears of rent were not relevant.
Accordingly, the landlord was ordered to sell the property to the tenant under the option agreement. On appeal, the Court of Appeal confirmed the judgment.
Parents to Pay for Children’s Bad Behaviour
The Government has announced that it is to press on with its policy of introducing parental compensation orders (PCOs), which will allow the victims of property damage inflicted by children to claim up to £5,000 in compensation from the parents of the children responsible.
The Home Office guidance on PCOs stresses that the orders will have to take into account the means of the parents when setting compensation levels.
It is also considered that the willingness of parents in such circumstances to undertake parenting classes and of the child to write an apology could be mitigating factors in determining the level of compensation payable.
Initially, a pilot scheme to test the efficacy of the measures will be launched in ten areas throughout the UK. If the scheme proves effective, it will then be rolled out nationwide.
Poorer Spouse Must Have Proper Representation
Most of the divorce cases featured recently in the press have been ones where the settlement involved the division of substantial assets between independently wealthy spouses.
In some cases, however, there is a disparity of assets between the divorcing couple and one of the spouses has insufficient funds to obtain proper advice. In such cases a ‘costs allowance’ may be made against the other spouse, requiring them to provide funds so that the other party can be legally represented.
A recent case dealt with such a situation. In this case, the ex-wife was considerably better off than her ex-husband and she had been ordered to make periodicalpayments to him. She wished to change this and to negotiate a ‘clean break’ agreement, by the making of a single ‘one-off’ payment. The court decided that the ex-husband did not have sufficient assets to obtain proper legal advice, so the judge ordered his ex-wife to pay an additional £10,000 per month for four months to provide him with sufficient money to finance his legal representation until the end of the financial dispute resolution process.
She appealed. She alleged that her ex-husband owed her £36,000 in respect of costs and that he had impoverished himself through unwise litigation. She also alleged that he had not made a full disclosure of his financial affairs.
The chief issue before the Court of Appeal was whether the ex-husband had demonstrated that he could not reasonably obtain appropriate advice and representation without the costs allowance being granted. For example, if he had assets, he would need to demonstrate that they were not realisable or could not be used as security for a loan. Also, the court had to be sure that he was not eligible for public funding of his legal costs.
Although the question of the debt owed to the ex-wife carried weight, the Court of Appeal was of the view that facts had been properly considered by the judge in the lower court and it would not seek to overturn that ruling.
This case illustrates the point that the courts are primarily concerned with making sure that where there is a significant disparity of assets in such cases, the ‘weaker’ spouse does not suffer as a result of being unable to secure proper legal representation. Furthermore, the Court of Appeal is unlikely to change the decision of a lower court provided it has taken proper regard of the facts made available to it.
The Court of Appeal judged that the restriction of the costs allowance to the end of the financial dispute resolution process was a deterrent to spinning out the dispute and did not amount to an improper inducement to settle prematurely.
Says <<CONTACT DETAILS>>, “In divorce proceedings, having less wealth than your spouse should not prevent you from getting proper legal support.”
Right to Buy – The Present Position
The right of secure tenants to buy their homes was established under the Housing Act 1980. The original rules have subsequently been amended, however, mainly owing to a growing number of abuses of the system. These mainly involved property speculators who made agreements with secure tenants to the effect that they would acquire their properties under the right to buy provisions, using finance provided by the property speculator who would then purchase the property and rebate to the tenant some of the discount they had received.
The discounts applicable when a tenant exercises the right to buy range from 35 per cent to 60 per cent in the case of flats and from 50 per cent to 70 per cent in the case of houses, although there is sometimes a cap on the maximum discount that can be given.
More recently, the right to buy of tenants subject to an anti-social behaviour order has been limited through the establishment of a ‘demoted tenancy’.
Secure tenants will acquire the right to buy their property after five years but the right to buy with a discount is not without limitations. Firstly, the tenant must covenant not to sell the property within five years, subject to loss of the discount. The amount of discount to be repaid is calculated with reference to the value of the property at the date of resale, so that rising property prices will not produce a windfall profit for the purchasing tenant if they sell in the first five years.
Also, in a bid to prevent property speculators from cashing in on the discounts, a deferred agreement to resell the property to someone else, entered into before the right to buy is exercised or during the five-year period after purchase, will trigger a repayment of the discount.
Furthermore, the right of first refusal to purchase the property remains with a social landlord for ten years after the purchase.
There are a variety of other measures which aim to prevent other abuses of the
right to buy legislation.
If you are a secure tenant and are considering the purchase of your home, contact <<CONTACT DETAILS>> for advice.
School Which Follows Procedure Has Right to Expel
A recent case has illustrated the point that the courts will not interfere with a private school’s right to exclude ‘problem’ students where it has acted reasonably in so doing.
The case involved a pupil at prestigious Marlborough College. The boy had a long record of unsatisfactory conduct. He was accused by the school of a catalogue of misbehaviour including smoking, drinking and bullying. He had amassed a record of indiscipline which was far worse than that of any other pupil and the college had written to his parents on several occasions indicating in general terms that his behaviour was unsatisfactory, that his academic progress was unsatisfactory and that substantial improvement would be necessary if he were to continue at the school.
The school summoned the boy’s father to a meeting at which it was explained to him that it had decided to require the boy to leave at the end of the term, which it was permitted to do under a clause in its standard terms and conditions. The relevant clause permits the school to remove a student after consultation with the student’s parents if, in the judgment of the headmaster, the pupil is ‘unwilling or unable to profit from the educational opportunities offered’.
The boy’s father claimed that the college had agreed that his son’s entry into the sixth form would be conditional on his achieving a minimum level of success in the GCSE examinations and he had exceeded the minimum standard set. The boy claimed that he was not given any intimation by the school that his behaviour would warrant expulsion.
The father argued that in the circumstances, the college’s action amounted to a breach of contract. He claimed that the process by which it informed him of his son’s misbehaviour was not sufficient to amount to a proper process of consultation. He also considered that letters to him concerning his son’s misbehaviour were not detailed enough to allow him to understand the gravity of the problem.
The father lost his case and so took it to the Court of Appeal, which dismissed his appeal. The judgment confirmed that the college had clearly complied with its standard terms and conditions. These conditions are common in contractual agreements between private schools and parents throughout the country, so the ruling effectively confirms the right of a school which follows its procedures correctly to exclude problem students without having to give a list of all infractions.
Trustee Exemption Clauses – New Approach
The Law Commission has recommended the adoption of a new approach to clauses in trust deeds which limit the liability of paid trustees.
The recommendation requires paid trustees and the persons drafting the relevant trust deed to ensure that the settlor of any trust assets is made aware of any clause in the trust document which excludes or restricts the liability of a trustee for any loss to the trust as a result of breach of trust. This must be done before the trust document is created but will not apply where the settlor has the benefit of independent legal advice or where the trustee is acting in the normal course of business, for example when the trustee is a pension trustee.
The relevant professional bodies (the Law Society, the Institute of Chartered Accountants in England and Wales, etc.) will implement the ruling by making a change to the rule books of their members. The Society of Trust and Estate Practitioners has already done so.
The rule only applies to paid trustees. However, a trustee who receives an indirect benefit as a result of his position could well be considered to be a paid trustee. This might make some unpaid trustees subject to the new regime, possibly without their being aware of it.