High Court Rejects Legal Aid Challenge for Windrush Compensation Scheme

In a significant ruling of the case of R (Oji) v The Director of Legal Aid Casework [2024] EWHC 1281 (Admin)., the High Court has dismissed a legal challenge seeking to secure legal aid for individuals applying for compensation under the Windrush Compensation Scheme. This decision has sparked a mix of reactions from various stakeholders, ranging from disappointment among advocacy groups to approval from governmental bodies.

Background

The Windrush Compensation Scheme was established in April 2019 in response to the Windrush scandal, where many Commonwealth citizens, who had lived and worked in the UK for decades, were wrongly detained, denied legal rights, threatened with deportation, and, in at least 83 cases, wrongly deported from the UK by the Home Office. The scheme aims to provide financial redress for the suffering and losses experienced by the Windrush generation and their families.

The Legal Aid Challenge

The legal challenge was spearheaded by several advocacy organizations and law firms specializing in immigration and human rights. They argued that the complexity of the compensation process necessitated legal aid to ensure that applicants could navigate the system effectively and receive the compensation they deserved. The claimants contended that many of those affected by the Windrush scandal faced significant barriers, including language difficulties, mental health issues, and a lack of trust in the authorities, which would hinder their ability to apply for compensation without professional legal assistance.

The High Court’s Ruling

In the judicial review, the claimant, born in Nigeria in 1985, faced challenges due to the hostile environment policy, leading to difficulties in employment and accessing homelessness assistance to escape domestic violence. Seeking compensation under the Windrush scheme, the claimant’s application for legal aid was refused, leading to the challenge.

The court dismissed the challenge on two grounds. Firstly, it found that neither Article 6 nor Article 8 of the European Convention on Human Rights were engaged in the compensation scheme application. Secondly, it concluded that the discretion available under section 10(3)(b) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 did not need to be exercised, as a decision had already been made under section 10(3)(a).

Reactions

Government Response

The Home Office welcomed the High Court’s decision. A spokesperson reiterated the department’s commitment to righting the wrongs experienced by the Windrush generation and emphasized the resources allocated to assist claimants. The spokesperson stated, “We are pleased with the court’s decision, which recognizes the extensive support provided through the Windrush Compensation Scheme. We remain dedicated to ensuring that all those affected receive the compensation they are entitled to.”

Advocacy Groups

Conversely, advocacy groups and legal representatives expressed deep disappointment with the ruling. They argued that the decision failed to appreciate the real-world challenges faced by many Windrush victims. Jacqueline McKenzie, a prominent lawyer and advocate for the Windrush generation, commented, “This ruling is a setback for justice. The Windrush Compensation Scheme, though well-intentioned, is inherently complex, and many of those affected are vulnerable and in dire need of legal assistance to ensure they receive fair compensation.”

Impact on Claimants

For many individuals affected by the Windrush scandal, the ruling represents another hurdle in their quest for justice. Some have expressed concerns that without legal aid, they might struggle to complete the application process and secure the compensation they need to rebuild their lives.

Looking Ahead

While the High Court’s decision is definitive, it has highlighted the ongoing challenges within the Windrush Compensation Scheme. Advocacy groups have vowed to continue their efforts to support claimants and to campaign for further improvements to the scheme. The Home Office has also indicated that it will continue to review and refine the process to better meet the needs of the Windrush generation.

In the aftermath of this ruling, the focus will remain on ensuring that the scheme fulfils its promise to deliver justice and compensation to those who have suffered so profoundly. The possibility of an appeal remains uncertain. However, the case underscores the ongoing challenges with the Windrush compensation scheme and the persistent need for legal aid, as highlighted by Age UK’s assertion that a debt is owed to the Windrush generation, which the UK government has yet to fully address.

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Rentcharges under the Leasehold and Freehold Reform Act 2024

The Leasehold and Freehold Reform Act 2024 received royal assent on 24 May 2024. While most discussion about the 2024 Act relates to the ban on the sale of new leasehold houses and the lease extensions, this article aims to talk about new requirements and limitations in relation to rentcharges under the 2024 Act, which will come into force on 24 July 2024.

What is a rentcharge?

As defined in section 1 of the Rentcharges Act 1977, a rentcharge means an annual or other periodic sum charged on or issuing out of land, that is not rent reserved by a lease and is not payable by way of interest.

Rentcharges are usually paid by freeholders to a third party who has no other interest in the property. Most rentcharges originated in the late 19th and early 20th century when landowners sold their land for development but would retain a legal interest in the land and charge an annual fee.

Current law relating to rentcharges

Under the Rentcharges Act 1977, no new rentcharges can be created since 22 August 1977 except for:

estate rentcharges;
rentcharges created in relation to certain family trust arrangements
rentcharges created under statutory acts in connection with the execution of works or commutation of such works obligations and
finally, rentcharges created by or in accordance with a court order.

The 1977 Act also provides historic rentcharges to be extinguished on the later of 22 July 2037 or the expiry of 60 years from the first payment date of the rentcharge. However, rentcharges that can be created under the 1977 Act remain enforceable after 2037. For example, estate rentcharge can still apply to certain new build developments where the freehold homeowners are obliged to pay the estate rentcharge for maintaining or repairing communal areas.

If the homeowner fails to pay the rentcharge or any part of it for 40 days after it is due, statutory remedies are available to the rentcharge owner under section 121 of the Law of Property Act 1925:

Section 121(3) provides that the rentcharge owner has right to enter into possession of the property, and take the income from it until all arrears together with all costs and expenses are fully paid;

Section 121(4) provides that the rentcharge owner may grant a lease of the property to a trustee who must try to raise enough to pay the arrears together with the costs and expenses arising from non-payment of rentcharges.

The rentcharge owner does not need to make any legal demand for unpaid rentcharges before exercising these remedies. This creates problems due to the unforeseen consequence if the homeowner fails to comply with the rentcharge provisions. Mortgage lenders are reluctant to lend against properties subject to estate rentcharges unless the rentcharge deed includes a provision requiring the rentcharge owner to give a minimum 40 days’ notice to the lender before taking the enforcement action or excludes the statutory remedies under section 121 of the 1925 Act.

Changes under the Leasehold and Freehold Reform Act 2024

Under section 113 of the 2024 Act, the rentcharge owner cannot exercise their enforcement under section 121 of the Law of Property Act 1925 unless the rentcharge owner has served the homeowner with a 30 days’ notice demanding payment of the arrears and such notice complies with the requirements set out in the provision. For instance, the demand for payment must set out the following details:

the name of the rent owner;
the address of the rent owner;
the amount of the rentcharge arrears;
how that amount has been calculated; and
details of how to pay that amount.

Moreover, the rentcharge owner no longer has any of remedies for recovering and compelling payment of unpaid rentcharge on and after 27 November 2023. The rights to take possession / to grant a lease have been removed.

Nonetheless, the above changes only apply to “regulated” rentcharges which could not be created in accordance with section 2 of the Rentcharges Act 1977 i.e. historic rentcharges. The changes do not extend to estate rentcharges. The homeowner subject to estate rentcharge and the mortgage lender still have to deal with draconian rights available to the rentcharge owner. Therefore, the homeowner should still be aware of how rentcharge operates and the consequences if they fail to comply with rentcharge provisions.

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Standish v Standish: Court of Appeal Clarifies Asset Division in High-Value Divorce

A recent Court of Appeal case (Standish v Standish) resulted in an unequal division of property on divorce. The family’s total wealth was £132 million, yet the judge awarded the wife only £25 million after a 15-year marriage. Notably, the parties did not have a prenuptial agreement, and during the marriage, the husband transferred £77 million to the wife as part of a tax planning scheme. The case has significant implications for the sharing principle of asset division by providing clear guidance on this matter, particularly around the concept of non-matrimonial property.

What was the background?

The case involved a husband and wife who married in 2005 and had two children together. After moving to England from Australia, they purchased an estate in Hampshire. The husband had acquired the vast majority of his wealth prior to the marriage and held the majority of his wealth in his sole name until 2017. He retired in 2007, two years after marrying his wife.

In 2017, as part of a plan to settle the money into trusts to protect the family from inheritance tax, the husband put roughly £77m into the name of his wife. However, prior to the setting up of any trust, the wife commenced divorce proceedings.

At the time the case went to trial, the wife said that this money had become her separate property. Despite this, the wife said that she would be willing to share the money, as well as everything else, equally with her husband. Nevertheless, it was argued by the husband that the money should be returned to him as part of his non-matrimonial property.

In his decision, the judge found that while there had been matrimonialisation of the transferred money, the asset division should be unequally favoured toward the husband due to his previous wealth. He made the same decision for the farm business, whose shares had been partly transferred to the wife for tax efficiency.

On the other hand, the judge found that farmland was non-matrimonial property, and should not be included in the sharing principle. However, he found that the sharing principle did apply to the Hampshire estate, which was worth £21m.

Overall, this meant that the value of the transferred assets, which included the farm business and matrimonial home, was divided 60/40 in favour of the husband, with the farmland also left with the husband. This meant that, overall, £87m (66%) of the assets went to the husband, while £45m (34%) went to the wife.

The wife argued for half of the assets based on the importance of title, autonomy, as well as the absence of a nuptial agreement. However, the husband’s appeal involved him seeking a reduction to £25m for the awarding of assets to the wife.

Why did the Court of Appeal decide that the judge was incorrect in his decision? Let’s take a look.

Court of Appeal

After being referred to the Court of Appeal, the Lord Justice made the decision that the trial judge was wrong to have held that the transferred funds had been matrimonialised. This decision was made on the basis that the mere title had been transferred.

The Court of Appeal found that this transfer of title was an irrelevant consideration. Instead, the source of the asset was the critical factor. In practical terms, this means that he held that the fact that the 2017 Assets were non-matrimonial were not diminished purely because they were transferred to the wife. Furthermore, Lord Justice Moylan found that the way this had been applied was an extension of the concept of matrimonialisation itself.

Lord Justice Moyaln went on to say that “The sharing principle is founded or based on each party, in accordance with the objectives of fairness, equality and non-discrimination, being entitled to an equal share of their matrimonial property, namely the “fruits of the partnership” or the wealth built up by the parties’ endeavours during the marriage.”

In other words, the Court of Appeal held that the sharing principle for the 2017 assets should only have been applied to the portion between the marriage and the husband’s retirement in 2007. The way in which the trial judge had applied the sharing principle therefore resulted in an unjustified division of the wealth in favour of the wife.

By applying the sharing principle in what the Court of Appeal held was the correct way, this would have resulted in the wife receiving £25m in wealth instead of the £45m which the trial judge concluded.

The decision over whether the £25m would meet the wife’s needs was referred back to the trial judge to assess.

Our thoughts

There is a common understanding that matrimonial assets should be shared equally, regardless of the parties’ respective roles in the family, whether as a homemaker or a moneymaker. However, as demonstrated in this case, the sources of funds are clearly relevant to capital distribution. Not all assets held by the parties at the time of divorce are subject to equal division. To achieve overall fairness, equality, and non-discrimination, only the “fruits of the partnership”—the wealth accumulated through the parties’ efforts during the marriage—are subject to equal sharing. Non-matrimonial property, such as pre-marital wealth and inheritance, is excluded from sharing, although it may be relevant to meet needs if required.

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High Court Declares Electronic Monitoring Unlawful

The High Court has ruled that the Home Secretary’s use of electronic monitoring of four claimants was unlawful, a decision which has broader implications for future similar cases. However, the court upheld the Home Secretary’s right to use data from electronic monitoring to make decisions on leave applications for individuals who have been tagged. This ruling comes from the case ADL & Ors v Secretary of State for the Home Department [2024] EWHC 994 (Admin).

Background

On June 15, 2022, the Home Office initiated a pilot scheme for electronic monitoring which targeted individuals who arrived in the UK via perilous journeys, such as those arriving by small boats. The pilot scheme concluded on December 15, 2023.

Quarterly reviews of the use of electronic monitoring on individuals were mandated, but a backlog was noted by the Independent Chief Inspector of Borders and Immigration in July 2022. By February 2023, the backlog had reached 1,912 cases, decreased to 348 by May 2023, but rose again to 970 by October 2023. The backlog was attributed to staff shortages, delays in implementing a new IT system, and a guidance error requiring higher executive officer authorization for maintaining electronic monitoring.

The Claimants

Four claimants were involved. These included:

ADL: Monitored from July 14, 2022, to October 31, 2022.
Fabio Dos Reis: An EU national monitored from March 7, 2022, to October 27, 2022, later granted settled status.
BNE: Monitored from May 26, 2022, to November 7, 2022.
PER: Monitored from July 19, 2022, to the hearing date, with a switch to a handheld device on October 26, 2023.

Three claimants were deportation cases; one was not. One had been granted bail by the First-tier Tribunal, and the others by the Home Secretary. Representations made on behalf of ADL before monitoring were ignored, and quarterly reviews were delayed in three cases.

Judicial Review

The review challenged the imposition, review, and data retention from electronic monitoring. During the proceedings, the Information Commissioner issued an enforcement notice for data breaches, and the Upper Tribunal ruled on a related case.

The High Court addressed several issues:

1. Decision-Making and Reasons for Monitoring: The Home Secretary failed to consider whether imposing monitoring was impractical or violated human rights (ADL and PER). The failure to provide reasons affected BNE and ADL.

2. Quarterly Reviews: The court refused to amend grounds on the lack of quarterly reviews.

3. Article 8 Rights: The failure to provide reasons did not make monitoring unlawful, but not considering representations or practicality did for two claimants.

4. Necessity and Proportionality: Monitoring was deemed unnecessary beyond a certain period for ADL and BNE.

5. Retention of Trail Data: The Home Secretary was not required to make individual decisions on retaining trail data.

6. Use of Monitoring Data: The use of data for leave applications was lawful.

7. Proportionality of Data Retention: Retaining data was deemed unlawful for Dos Reis and ADL due to specific circumstances.

Our thoughts

The court’s decision on electronic monitoring’s lawfulness provides critical guidance, though concerns remain about using potentially inaccurate monitoring data in leave applications. Practitioners should review the Nelson decision and consider recommended steps for clients in similar situations.

Have questions? Get in touch today!

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10 things that should be at the front of first time buyers’ minds

Here at Lisa’s Law, we deal with many different types of cases from both the residential property and commercial property sectors. However, a particularly important demographic that our solicitors find it rewarding to work with are first time buyers.

While it is particularly difficult for young people to buy their own home now, due to astronomical house prices, lack of housebuilding, and stagnant wages, the dream for young people of owning their own home remains paramount for many.

We have compiled a list of key points that first time buyers should be considering when they make the choice to purchase a home of their own.

Why is the property on the market?

This can be an important question to think about from a few different angles. Are there any faults with the property which may make the current owners want to move away? Be sure to ask questions about how the house functions, from its plumbing to its phone signal reception and everything in between. Is it in an area with good transport links? What are the sellers like, and what is their current situation? If they want to sell the property quickly then it may be a good chance to put in a lower price offer, you never know!

Is it taking a long time to sell?

There can be many factors that influence the time it takes for a property to be sold, and just because a property has been on the market for a long time doesn’t always mean there is something wrong with it. On average, a property takes between 60 and 70 days from when it is put up for sale to when a buyer is secured – but this number tends to fluctuate year on year. If a property has been on the market for 6 months or more, it is likely that you can put in a lower offer and it will be considered. It is smart to ask if there have been previous offers on the property.

Know your budget

Most lenders will ask for proof of your income so that they can assess whether or not to give you a loan, as well as how much they will lend you. You will usually need a deposit of 10% of the properties value and then take out a mortgage to pay the rest.

Nevertheless, you may also be eligible for the mortgage guarantee scheme. This is an equity loan from the government which can reduce your deposit to five per cent. Another option is shared-ownership, where you buy a percentage of the property and rent the rest, usually from a housing association.

You must also think about stamp duty depending on the value of your property, as well as solicitors’ fees. These will easily add a few thousand pounds to your bill and can’t be added to your mortgage.

What’s the parking situation?

If you have a car and need to use it often then it is important to be aware of the parking situation before committing to a property. Do you need a parking permit? Does the property have its own dropped curb or driveway for you to use? This must be considered if you are someone who drives a lot.

Looking out for damages/cover ups

If the house generally doesn’t look like it has been refurbished for a while, keep an eye out for freshly painted walls. It may mean that the owners are trying to cover up some damage, so if you notice anything usual it’s best to ask why the work was done. At the same time, it’s also worth checking for damp. This can cause a major headache in any property, leading to both damage to your health and home.

If there is a basement, keep an eye out for water. If it’s been quite rainy in the days leading up to your viewing, and the basement looks dry, it’s good news. However, if it’s been dry, and the basement appears damp, you should ask what the issue is and figure out where the water is coming from.

Check the windows as well, as good windows can save you a lot of money in heating bills!

Think about what you already own!

You must take into consideration the size of the rooms in relation to the furniture that you own. It can be easy to misjudge the size of a room when it doesn’t have anything in it, so if you want to be completely certain that the property is big enough for your needs there is no harm in bringing a tape measure with you to the viewing, along with the measurements of your main furniture.

How old is the roof?

This is an often forgotten but very important question. Roofs are can be very expensive to replace and the building work is an absolute nightmare. Newer roofs have a life expectancy of only 15-20 years, depending on the materials. If the roof is flat be sure to check that it is all sealed properly to avoid any leaks in the future.

Check out the plumbing

Run the taps when you are looking in the bathrooms and kitchen, and see for yourself what the water pressure is like. Even check the shower too. Ask about the radiators and how old the boiler is. Older tanks are usually stored in the roof, so if that’s the case bear in mind that you will may have to replace it soon.

Assess the area

Is there a pub nearby that’s open late, meaning lots of noise? How close are schools, will they cause lots of traffic in the mornings when you are trying to get to work? Are you underneath a flight path? Is there a dump nearby that might cause an unpleasant smell?

These are all things that so many people find out AFTER they have already moved into the property. Don’t make the same mistake as them!

Does it feel like it could be your home?

If you do find a property that you really like, be sure to visit it more than once. Go there a few times, ideally with a couple of different people who may notice things you miss. Have viewings at different times of the day and really explore the surrounding area. Try to envision yourself living there for a long time; it’s a big commitment to buy a house and you have to be 100% sure that it is the right one for you.

That’s all for our article about 10 tips for first time buyers. Subscribe to our newsletter for more!

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

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James Cook

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Labour Party Unveils 2024 Election Manifesto: Comprehensive Plan for Secure Borders and Efficient Asylum System

The Labour party has released its manifesto for the General Election being held on 4 July 2024, presenting a robust strategy to address national security, secure borders, and economic stability amidst a volatile global landscape. Here’s a summary of the key Labour immigration policies.

Labour emphasises the need for controlled and managed borders, highlighting Britain’s history of welcoming those fleeing persecution. However, the current system is deemed chaotic, with criminal smuggler gangs fuelling the small boats crisis and costing lives.

With Labour seen as the favourites to win the general election, at an average of 20 points ahead in the polls, greater scrutiny may be applied to their policy over the other parties. What is clear is that there would be a different approach to immigration and asylum to the Conservative Party’s strategy over the past 14 years.

Labour Immigration Policies

Border Security Command: Labour proposes the creation of a new Border Security Command. This unit will be staffed with hundreds of specialist investigators, intelligence officers, and cross-border police officers. It will be funded by ending the costly Migration and Economic Development partnership with Rwanda. The new Command will have counter-terrorism style powers to disrupt and arrest criminal gangs involved in human smuggling.

International Cooperation: Labour plans to negotiate a new security agreement with the EU to access real-time intelligence and lead joint investigations with European counterparts.

Reforming the Asylum System: Labour aims to restore order to the asylum system, ensuring it operates swiftly, fairly, and firmly.

Asylum Backlog: Labour will hire additional caseworkers to clear the existing backlog of asylum cases created by current policies. They will end the use of hotels for asylum accommodation, saving taxpayer money.

Returns and Enforcement Unit: A new unit with an additional 1,000 staff will be established to fast-track removals to safe countries for those without the right to stay in the UK. Labour will negotiate more returns arrangements to increase the number of safe countries that failed asylum seekers can be sent back to.

Addressing Root Causes: Labour will work with international partners to address the humanitarian crises that lead people to flee their homes, strengthening support for refugees in their home regions.

Key Measures

Clear the Asylum Backlog: Increase caseworkers and create a Returns and Enforcement Unit.

End Hotel Use: Stop using hotels for asylum accommodation to reduce costs.

Scrap Rwanda Scheme: Immediately terminate plans to send asylum seekers to Rwanda.

Humanitarian Support: Collaborate internationally to tackle humanitarian crises and support refugees locally.

Our thoughts

Labour’s manifesto presents a comprehensive and pragmatic approach to managing immigration and asylum. By focusing on dismantling criminal smuggling operations and enhancing border security through a dedicated command unit, Labour addresses the root causes of the small boats crisis. Their commitment to scrapping the costly and ineffective Rwanda scheme in favour of direct action against smuggler gangs demonstrates a shift towards practical, on-the-ground solutions.

The proposed reforms to the asylum system, including additional caseworkers and a new returns unit, aim to clear the backlog and ensure that the process is fair and efficient. This focus on efficiency, coupled with plans to end the use of hotels for asylum seekers, could save significant taxpayer money and improve public perception of the asylum process.

However, the success of these policies will hinge on effective implementation and international cooperation. Negotiating new security agreements with the EU and addressing humanitarian crises require robust diplomatic efforts and sustained commitment.

Overall, Labour’s plan seeks to balance compassion with control, ensuring that the UK remains a safe haven for those in genuine need while maintaining secure and orderly borders. This approach may appeal to voters looking for a more humane yet practical immigration policy.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

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What are the immigration policies in the Conservative Party’s 2024 manifesto?

This week, the two major parties, Conservative and Labour, launch their election manifesto. On Tuesday, it was the turn of the governing Conservative Party to announce their plans about what they would do if they were to beat the odds and win next month’s general election. Let’s take a look at the Conservative Party immigration policies.

While the Conservatives have repeatedly pledged to reduce the levels of migration during their 14 years in office, it has continued to rise, peaking at 1.2m in 2023, a net migration figure of 685,000. However, recently introduced measures such as banning the majority of international students and care workers from bringing dependants, increasing the salary threshold and minimum income for the skilled worker and family visas, as well as the abolition of the 20% going rate salary discount for shortage occupations are likely to have an impact.

As a London law firm which specialises in immigration law, we will take you through the Conservative Party’s immigration policies to keep you informed about your choice ahead of the upcoming general election on 4th July.

Illegal migration

The Rwanda plan

The Rwanda plan forms a key plank of the Conservatives’ plan to tackle illegal migration, particularly the crossing of small boats. Rishi Sunak has championed the plan since becoming Prime Minister, despite it being fraught with legal challenges, including a decision by the Supreme Court in November 2023 which found the plan to be unlawful. Despite this decision, the Safety of Rwanda (Asylum and Immigration) Act 2024 declared Rwanda a safe country and overruled the courts.

The Conservatives have stated that they would begin flights of so-called illegal migrants to Rwanda, starting from this July. Some have questioned whether this is true, given that Sunak decided to call the general election prior to the point when the Rwanda plan came to fruition.

The manifesto also addresses the potential of challenges at the European Court of Human Rights by stating that, ‘if we are forced to choose between our security and the jurisdiction of a foreign court, including the ECtHR, we will always choose our security’.

Illegal Migration Act

The Conservatives will also bring the Illegal Migration Act into force in order to attempt to prevent challenges against removal, clear the asylum backlog, end the use of hotels and process all claims in six months.

The Act means that anyone arriving in the UK via ‘irregular’ means, such as crossing the English Channel in a small boat, will have their asylum claim declared “inadmissible”. It also places a legal duty on the Home Secretary to remove anyone arriving irregularly to their home country or a “safe third country”, Rwanda.

Other policies

They also plan to:

Crack down on organised immigration crime through the National Crime Agency and intelligence services in order to “disrupt supply chains and people smugglers”
Reform asylum rules by working with other countries to introduce laws to tackle what they call an “age of mass migration”.
Restrict visa access from countries that don’t work with the UK to combat illegal migration
Give parliament control of the number of places offered on safe and legal routes, as well as introduce a cap based on capacity of local areas

Legal migration policies

The Conservatives also wish to significantly cut legal migration. Further to recent changes which have been made, they would:

Increase all visa fees and remove the student discount for the Immigration Health Surcharge (IHS) in order to fund public services
Raise the Skilled Worker visa threshold and Family Visa income requirement with inflation automatically
Require migrants to undergo a health check in advance of travel. If they are likely to be a burden on the NHS then their IHS would be higher, or they would be required to buy health insurance

Legal cap on migration

In order to reduce legal migration, the Conservatives would introduce a legal cap on migration for work and family visas. This cap would be set at a level which “explicitly takes into account the costs and benefits of migration” and would fall every year of the next Parliament.

Parliament would also be given an annual vote on the level of the migration cap, and they wouldn’t allow any form of free movement to return.

Our thoughts

Clearly, the Conservative Party have announced an immigration policy platform in their manifesto which is designed to appeal to voters who wish to see a significant reduction in migration, both legal and illegal. There are no real surprises in the manifesto when it comes to migration, with policies like the Rwanda Plan and Illegal Migration Act front and centre.

Nevertheless, while the Conservatives may talk a tough game in their manifesto about migration, their record in this area means that they will find it difficult to convince voters. After all, net migration was around 250,000 when they came into office in 2010, and now stands at 685,000, down slightly from the previous year’s record of 764,000.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

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James Cook

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Personal Representatives – what are they?

Today, we are going to follow up our article on what steps to take when someone dies by informing you about the duties of personal representatives, otherwise known as executors and administrators. Personal representatives are people who have the personal responsibility and legal authority to ensure that the deceased’s estate is distributed correctly.

While ‘personal representative’ is used as a general term, it is important to point out a key distinction between executors and administrators.

An executor is directly appointed by a valid Will or a codicil as someone charged with the responsibility for administering the testator’s property and carrying out the provisions of the Will. They are the person who will be seeking to obtain what is termed a Grant of Probate. On the other hand, an administrator is relevant in situations where there is no Will involved. Without a Will, the person responsible for dealing with the deceased’s estate is the administrator, usually the next of kin. However, there are a few other ways in which an executive may be appointed without being expressly appointed in a will.

Miss the previous article in which we discussed what the first steps to take are following a death? Click here.

What is a personal representative responsible for?

A personal responsibility is legally responsible for the money, property and possessions of the deceased from the date of death until the assets have been distributed to the beneficiaries.

You may have to deal with the following during the aforementioned administration period:

The payment any debts left by the person who died
Sale of assets such as properties or shares
Pay Income Tax on things like rental income from property, profits from a business or interest from investments
Pay Capital Gains Tax on profits from selling shares, investments or property
Reporting of the estate value, income and tax liability to HM Revenue and Customs

How can a personal representative be appointed?

There are a few methods in which a personal representative can be appointed. These include the following:

In the Will
Implied within the Will
Or by a person nominated in the Will to appoint an executor. If this person is nominated in the Will, they may be able to appoint themselves as an executor
Through the chain of representation
By the court

However, the executor must still accept the office of executor in order for the grant of representation to be issued to them. If an executor does not wish to take a grant then they may have so-called ‘power reserviced’ or renounce the office.

The chain of representation

The chain of representation is an important aspect of estate administration which ensures that the deceased’s wishes are honoured in the event that personal representatives die before completing their role.

Let’s look at the following case as an example:

1. John, the Executor: John is named executor in Paul’s will and starts administering the estate.

2. John Dies: John dies before the administration of Paul’s estate is complete

3. Mary, the Successor: John’s Will names Mary as his executor, so she takes over.

4. Mary administers the estate: Mary can administer John’s estate under the chain of representation, as well as Paul’s.

However, if an executor who is in the chain dies without a valid Will in place, then Rules of Intestacy will determine the person with the authority to administer the Estate.

What are the powers of personal representatives?

Once the executor has confirmation of their authority to act via the grant of probate, or grant of letters of administration for an administrator, they have a number of powers, duties as well as the responsibility of renumeration. Their powers include the following:

sell, mortgage or lease
insure
postpone distribution
appropriate
accept receipts for a minor’s property
pay money into court
invest
compromise
maintain a minor
advance capital
run the deceased’s business
employ an agent
employ nominees and custodians

Although this may seem like a monumental task, personal representatives have the choice to delegate all of any of these responsibilities to an agent. Our family law team have the experience to help you all with all manners of probate, including obtaining a grant of probate, responsibilities of being an executor, as well as administration of an estate.

Liability of personal representatives

https://www.rothleylaw.com/articles/personal-representatives-duties-and-responsibilities/

Personal representatives should also be aware that they may be held personally liable for mistakes which are made while administering the estate. In terms of the personal representative’s dealings with third parties, beneficiaries of the deceased’s Will, and beneficiaries on an intestacy, they may find themselves liable through their actions or omissions.

During the period where the estate is being administered, personal representatives are personally liable for the following:

Meeting their obligations under any contracts they enter into
Any torts they commit
Any losses to the estate resulting from their breach of duty

It is advised that PRs should take all possible steps to obtain the details of creditors and beneficiaries of the estate before administering. This will help to ensure that they are not left open to personal liability as a PR.

As a result, notice of the PR’s intention to distribute the estate must comply with section 27 of the Trustee Act 1925 to protect them from liability. The distribution of the estate must be advertised in the London Gazette as well as any newspaper which is based in the area where the deceased lived or carried out their business.

Our thoughts

As you can see, personal representatives play a crucial role in estate distribution and administration. Without a Will, your personal representatives will be chosen according to intestacy rules, which may not reflect your wishes. Creating a Will allows you to specify who you want to administer your estate. It’s advisable to appoint someone you trust and who is capable of managing your estate effectively. Ideally, you should appoint at least two executors, and in some cases, professional executors such as solicitors might be a suitable option. If you have any questions about this, please feel free to contact us.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

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Mediation: Court Stresses Again on the Importance of Dispute Resolution in Conway v Conway & Anor

This property dispute involves a barn. In this case, the claimant wanted a declaration that the defendants did not have the right to enter the barn they were converting. Initially, there was an oral agreement for the claimants to sell the barn to the defendants, who then made significant renovations. However, the relationship soured when they could not formalise the agreement in writing. The claimant argued that there was an agreement giving him the option to repurchase the barn. Learn more about this case and the important role which can be played by dispute resolution, which was rejected by the defendants.

The Issue and the Law

The main issue in this case was whether the Defendants had the right to demand the transfer of the property known as “the Barn” from the Claimant, who also owns a larger property called Church Farm. If the court ruled in favour of the Claimant, the question arises whether injunctions requested in the claim should still be granted, considering the likelihood of the Defendants trespassing. Similarly, if the Defendants succeeded in their counterclaim, the necessity of the relief sought needed to be evaluated. The court should consider the guidance from Gestmin SGPS S.A. v Credit Suisse (UK) Limited on how to assess evidence, especially the importance of contemporaneous documents.

While the Claimant and his witness believe there was an agreement for a buy-back option, documents from solicitors suggest otherwise. The court therefore had to weigh the oral evidence against the written documents to determine the true agreement between the parties.

The Judge dealt with the law and interaction between proprietary estoppel, constructive trust and s. 2 of the Law of Property (Miscellaneous Provisions) Act 1989. He then analysed his inspection on the evidence provided by both parties in detail, in order to establish the intention of the parties.

The Conclusion and Warning on use of Mediation

The court has ruled in favour of the Defendants in this case. The claim has been dismissed, and the Defendants are entitled to enforce the terms of the oral agreement through specific performance. The court believes that granting any lesser relief would not be appropriate, considering the nature of the agreement and the significance of the Barn to the Defendants.

Notably, the Judge mentioned the recent decision of the Court of Appeal in Churchill v Merthyr Tydfil County Borough Council, stressing again the importance of mediation and dispute resolution, as well as concern over the Defendants’ rejection of mediation in this matter. The Judge indicated that he will deal with outstanding matters and costs when the judgment is handed down. It might mean that the Defendants’ costs claim being reduced due to the rejection.

The judgment was published on 31 May 2024.

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

See Full Bio

Leasehold and Freehold Reform Act Finally Passes: Will It Transform the Leasehold System?

The long-awaited Leasehold Reform Act has finally escaped Parliament’s legislative maze and become law. We briefly touched on the passing of the Leasehold and Freehold Reform Bill, now the Leasehold and Freehold Reform Act, in an article summarising the parliamentary “wash-up” period before the general election.

Find out more about some of the other important bills that passed before the dissolution of Parliament here.

Today though, we take an in-depth look at the Leasehold and Freehold Reform Act. Despite the drumming up of the act by the government as a landmark piece of legislation, it has been beset by hurdles since its inception. Originally touted as a bill to fundamentally reform, and eventually abolish the leasehold system, it has been significantly watered down over time.

Particularly controversial has been the failure to reduce ground rent to zero, a feature which formed part of the Conservative Party’s 2019 election manifesto. But what changes does the Leasehold and Freehold Reform Act make to the leasehold system?

Let’s find out.

Banning the sale of new leasehold houses

Leasehold, which dates back to feudal society, means that leaseholders own their property but not the land it is on. For flats this is arguably a more logical arrangement than it is for houses given that those who live in flats share the land they live on with others.

Many leasehold new build houses have ground rents which double every ten years, something which can lead to costs spiralling out of control for owners. For example, ground rents may start at £1000 a year, but after 40 years of doubling every decade they could be costing someone £16,000 a year!

To tackle this, the government included a ban on the sale of new leasehold houses in the act other than in “exceptional circumstances”. The intention of this is to ensure that every new house in England and Wales will be freehold from the outset. Scotland, on the other hand, fully abolished leasehold in 2012.

Make it cheaper and easier to extend a lease or buy the freehold

Another major change is the announcement that the Act will make it cheaper and easier for existing leaseholders who live in houses and flats to both extend their leasehold and buy the freehold for the property.

It will also see the introduction of a new standard lease extension term of 990 years for leasehold flats and houses, up from the current 90 years. This will give greater security of ownership for leaseholders by ensuring they do not have to worry about future lease extensions.

Furthermore, leaseholders will no longer have to wait two years to benefit from the aforementioned changes as this stipulation is being removed. This will be greatly welcomed by leaseholders by giving them greater rights over their property from day one of ownership.

Expands rights for leaseholders to manage their building

The Leasehold and Freehold Reform Act will also supposedly make it cheaper and easier for leaseholders to take over the management of their building.

At the moment, leaseholders who live in mixed-use buildings (ones which are both residential and non-residential), are unable to collectively buy the freeholder or take on the right to manage the building if more than 25% of it is non-residential. This is now being increased to 50%, meaning a greater number of leaseholders will be able to take on the right to manage their building.

Greater transparency for leaseholders

Another aspect of the Act is giving leaseholders greater transparency over their service charges. This will be done by ensuring that freeholders and managing agents issue their service charges in a “standardised format” which can be more easily scrutinised and challenged by leaseholders.

Scrapping the presumption that leaseholders pay their freeholders’ legal costs

Currently, leaseholders who wish to challenge poor practise by freeholders face the barrier of being the party which is presumed to have to pay the freeholders’ legal costs.

The Leasehold and Reform Act subsequently removes this presumption.

Expanding rights of redress

Rights of redress will also be greatly expanded by extending access to redress schemes for leaseholders to challenge poor practise. Freeholders who manage their building directly will be required by the government to belong to a redress scheme, allowing leaseholders to challenge them directly.

Furthermore, homeowners who own leasehold properties on private and mixed tenures estates will be granted comprehensive rights of redress by the Leasehold and Freehold Reform Act. They will also receive more information about the charges they pay and the ability to challenge how reasonable those charges are.

What happens now the Leasehold and Freehold Reform Act has passed?

It is our observation that despite that the leasehold bill has been passed into law, key measures such as banning leasehold houses and abolishing marriage value will not come into force for up to two years. Ground rent for existing leaseholders remains unchanged, and there is no ban on the forfeiture of long residential leases. Additional legislation is needed to fill in the gaps, with potential implications for lease extension costs. The bill is seen as a starting point, with ongoing concerns about leasehold contracts and costs that may need to be addressed by the Competition and Markets Authority.

While the changes have become law, it’s important to point out that the Leasehold and Freehold Reform Act has not yet taken effect. Nor is it yet known exactly when they will. The course that the future of the leasehold system takes is largely dependent on the outcome of the upcoming UK general election on the 4^th of July.

How do the two main parties differ on leasehold reform?

While the governing Conservative Party previously pledged to scrap ground rent, which failed to come to fruition, the Labour Party have consistently promised to fundamentally transform the system entirely. Nevertheless, the dropping of their previous pledge to abolish the leasehold system within 100 days will cause a certain amount of consternation for leaseholders.

The Labour Party continue to maintain that they plan to replace leasehold with a ‘fairer’ system like commonhold, however it remains to be seen what measures will be included in both parties’ election manifestos.

Of course, we at Lisa’s Law will do our very best to keep you updated on any changes. Until then, subscribe to our newsletter so you don’t miss anything!

Have questions? Get in touch today!

Call us on 020 7928 0276, phone calls are operating as usual and we will be taking calls from 9:30am to 6:00pm.

Email us on info@lisaslaw.co.uk.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you: https://lisaslaw.co.uk/ask-question/

For more updates, follow us on our social media platforms! You can find them all on our Linktree right here.

James Cook

See Full Bio

News and Insights

Background

The Legal Aid Challenge

The High Court’s Ruling

Reactions

Government Response

Advocacy Groups

Impact on Claimants

Looking Ahead

What is a rentcharge?

Current law relating to rentcharges

Changes under the Leasehold and Freehold Reform Act 2024

What was the background?

Court of Appeal

Our thoughts

Background

The Claimants

Judicial Review

Our thoughts

Why is the property on the market?

Is it taking a long time to sell?

Know your budget

What’s the parking situation?

Looking out for damages/cover ups

Think about what you already own!

How old is the roof?

Check out the plumbing

Assess the area

Does it feel like it could be your home?

Labour Immigration Policies

Key Measures

Our thoughts

Illegal migration

The Rwanda plan

Illegal Migration Act

Other policies

Legal migration policies

Legal cap on migration

Our thoughts

What is a personal representative responsible for?

How can a personal representative be appointed?

The chain of representation

What are the powers of personal representatives?

Liability of personal representatives

Our thoughts

The Issue and the Law

The Conclusion and Warning on use of Mediation

Banning the sale of new leasehold houses

Make it cheaper and easier to extend a lease or buy the freehold

Expands rights for leaseholders to manage their building

Greater transparency for leaseholders

Scrapping the presumption that leaseholders pay their freeholders’ legal costs

Expanding rights of redress

What happens now the Leasehold and Freehold Reform Act has passed?

How do the two main parties differ on leasehold reform?

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