Supreme Court overturns settled case law on limitation – Test Claimants in FII Group Litigation v HMRC

Written by Rosa Huang.

In the decision on Test Claimants in FII Group Litigation v HMRC handed down on 20 November 2020, the Supreme Court overturns decision of House of Lords in relation to the application of Section 32(1)(c) of the Limitation Act 1980, and unanimously allowed the appeal arising in the course of long-running proceedings known as the Franked Investment Income (“FII”) Group Litigation.

Background

The FII Group Litigation brings together many claims against the appellant, the Commissioners for Her Majesty’s Revenue and Customs (“HMRC”), concerning the way in which advance corporation tax and corporation tax used to be charged on dividends received by UK-resident companies from non-resident subsidiaries.

The respondents to the appeal are claimants within the FII Group Litigation whose cases were selected to proceed as test claims on certain common issues (“the Test Claimants”).

The Test Claimants seek repayment by HMRC of the tax wrongly paid, together with interest, dating back to the UK’s entry to the EU in 1973.

Under Limitation Act 1980, as a general rule, restitutionary claims for recovery of money must normally be brought within six years from the date on which the money was paid. In the meantime, Section 32 provides postponement of the limitation period in case of “mistake”. According to Section 32(1)(c), the limitation period for “action for relief from the consequences of a mistake” only begins to run when the claimant has “discovered the mistake” or “could with reasonable diligence have discovered it”.

In appealing to the Supreme Court, HMRC argued that Section 32(1)(c) only applies to mistakes of fact and not mistakes of law, or alternatively that the Test Claimants could reasonably have discovered the mistake over six years before their claims were first issued in 2003. Either way, HMRC contends that a proportion of the claims would be barred due to time limitations. HMRC invited the Supreme Court to depart from the decision on Deutsche Morgan Grenfell on the basis that it had been wrongly decided.

Judgment

The Supreme Court has confirmed that section 32(1)(c) of the Limitation Act 1980 (LA 1980) applies to claims for the restitution of money paid under a mistake of law. It has also ruled that time begins to run from when the claimant could have recognised that it had a worthwhile claim, not from when the true state of the law was established by a decision of a court of final jurisdiction. This is a remarkable departure from the settled case law, Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49. The Supreme Court held that House of Lords for Deutsche Morgan Grenfell was wrong in tying the date when the claimants discovered or could with reasonable diligence have discovered the mistake to the date of a decision by a court of final jurisdiction.

Comments

As we can see from the above, the mechanical test of discoverability of “mistake” in Deutsche Morgan Grenfell was based on the date of a decision by a court of final jurisdiction. In overturning the decision made by House of Lords in this case, the Supreme Court replaced the mechanical test of discoverability with a new test based on the date when the claimant could have been aware that it had a ‘worthwhile claim’ sufficient to merit obtaining legal advice and commencing the preliminaries to issue a claim.

The Supreme Court’s unanimous decision to depart from Deutsche Morgan Grenfell is less surprising, this is because limitation periods shall apply regardless of whether substance of the claim is disputed, or whether there is in truth a well-founded cause of action.

In addition, the approach adopted in Deutsche Morgan Grenfell will lead to an illogical consequence that mistakes will not be discoverable by a claimant until after he has issued a claim on the basis of the mistake.

The correct approach therefore is that time under section 32(1)(c) begins to run when the claimant discovers, or could with reasonable diligence discover, his mistake in the sense of recognising that a worthwhile claim arises.

This new test is objective. “Reasonable diligence” requires claimants to “establish on the balance of probabilities that he could not have discovered the mistake without exceptional measures which he could not reasonably have been expected to take”. The burden of proof is on the claimant.

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The Importance of Frontier Worker Permits – What are they and who can apply for one?

The Brexit transition period is over, and with the start of the New Year we find ourselves stepping into some new terrain in terms of immigration, employment and family law. While these changes in policy and rules may seem daunting, we will keep you right up to date with all the important events and news in the legal world.

One such piece of information comes in the form of the new Frontier Worker Permit which will allow certain workers from EEA countries to come and work in the UK from 1^st January 2021, even when they still reside elsewhere.

Such a permit normally allows the relevant EEA workers to carry out work which is not allowed under the normal visitor route. It is of great significance, particularly to those who have always been travelling in and out of the UK to work, yet it has not been widely publicised, which we find somewhat surprising.

Who counts as a frontier worker?

A frontier worker is a person who is an EEA national, primarily resident outside the UK, who comes into the UK to work on a frequent basis. This work can be on an employed or self-employed basis. An example could be an Irish citizen who crosses the border into Northern Ireland to work, or a French national who comes over to England frequently to fulfil employment contracts.

What are the specific requirements?

People can only apply for a Frontier Worker permit if they are from the EU, Switzerland, Norway, Iceland or Liechtenstein, and they:

live outside the UK

have worked in the UK by 31 December 2020

have kept working in the UK at least once every 12 months since they started working here.

It is important that the applicant’s home address is primarily outside the UK. How they meet this requirement depends on how much time they have spent here since 1 January 2020.

To qualify for such status, applicants will normally have spent more than 180 days in total outside the UK over the course of any 12 month period.

However, if an applicant has spent 180 days or more in the UK within 12 months, they may still be eligible if, in that 12 month period, they returned to the country they live in at least either:

once every 6 months

twice in the 12 month period

They may still be able to apply if there are exceptional circumstances meaning they could not travel to their country of residence in this period, such as an illness or accident, or under the current pandemic.

Qualifying work

Applicants may be eligible as long as their work in the UK is ‘genuine and effective’. This means it must be more than small, one-off tasks, such as:

an interview

taking part in a one-off competition or audition

signing a contract

The Home Office has published guidance on what counts as genuine and effective work which you can find here.

While each case will be considered on its own merits some key points that the Home Office will look out for when assessing whether the applicants work qualifies for the permit are:

whether there is a genuine employer-employee relationship

whether there is an employment contract specifying the employee is required to carry out work in the UK

number of hours worked in the UK

frequency of work in the UK

level of earnings from activities in the UK

Evidence of the above will need to be provided during the application process.

What benefits does a frontier worker permit have?

The frontier worker permit has the following benefits:

To allow the worker to work and live in the UK

To enable the worker to have access to some benefits and services if eligible like healthcare

It is free, and the worker does not need to pay immigration health surcharge

It is normally five years and can be extended afterwards.

The permit has limits!

It is important to note that a frontier worker permit will not lead to settlement. EEA nationals who want to settle in the UK on a permanent should ensure they apply by 30 June 2021 for pre-settled status under the EU Settlement Scheme rather than using this route. For more information on the EU Settlement Scheme, check out our article here.

It also does not allow the worker to bring his/her family member into the UK. They will have to apply for other visas in order to come.

No time to waste!

While an EEA national who meets the criteria above will be able to continue to travel to the UK for work purposes until 30 June 2021 using their current original passport or national ID card, this will not be the case forever.

From 1 July 2021, in addition to their identity document, an EEA national must hold a (digital) frontier worker permit in order to enter the UK to work.

Considering the frontier worker permit has not been well advertised, people should be forgiven for not being aware of it. It is of great importance to many people whose livelihood depends on being able to travel to the UK. We are quite surprised that the Home Office has not done more to make the existence of this permit public knowledge.

Applicants interested in such visa must apply online.

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Lockdown 3.0 will not stop Lisa’s Law!

With the new lockdown announced last night many areas of our lives are put on hold but your legal matters are not one of them. Here at Lisa’s Law we are ready and waiting to provide you with a full range of legal services to the excellent standard that our clients have come to expect.

Ready to take your case:

As with the first two lockdowns, we remain open for business as usual. We are fully operational and our lawyers are ready to take on your instructions, from small matters to complex ones! Your voice will never go unheard.

Conveyancing continues:

It may come as a surprise to some that the buying and selling of property is unaffected by the new lockdown rules. This means viewings can still take place, estate agents and moving companies can still work, and we can still help you buy or sell property! It is business as usual here at Lisa’s Law.

We are at full strength:

We have specialist caseworkers in our ranks dealing in immigration, property, family law, litigation, business law, will drafting, probate services and more. If you have an enquiry, we want to hear it.

Many ways to contact us:

Lisa’s Law is open for business. We are ready to provide you with uninterrupted legal services and there are many ways for you to contact us.

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

Email us on info@lisaslaw.co.uk. Our caseworkers are tending to their cases with the same professionalism and efficiency as always.

Use the Ask Lisa function on our website. Simply enter your details and leave a message, we will get right back to you:

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Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more! There is no need for you to leave your house at all when dealing with us.

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Thank you and stay safe!

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More Guidance on the EU Settlement Scheme – Evidence, Information, and Qualifying Periods.

The EU Settlement Scheme is of great importance for a huge amount of people now that the effects of Brexit are right around the corner. For a full rundown of the scheme you can read our article: A Clearance of the Past? – How Can You Benefit From the EU Settlement Scheme?

In this blog we will be focussing on the latest guidance regarding providing extra evidence, the correct information you need to submit, and what to do if your qualifying period has been affected by COVID-19.

Extra evidence needed?

In some cases applicants will be required to provide extra evidence to confirm nationality or identity. This is usually a passport or national identity card. In cases where this is not possible due to factors outside the applicant’s control, there are alternative options. Similarly, personal tragedy or practicality issues may be taken into consideration during the application, especially if they are related to the coronavirus pandemic.

Let’s say that a person is unable to renew their passport as they have been unable to travel, or the embassy has had to close. This could be seen as a reason for that applicant to provide alternative evidence to a passport.

First, they would need to provide sufficient evidence as to why they cannot produce the preferred documents due to coronavirus public health restrictions. This could be evidence of an embassy closure, such as a letter from the relevant national authority, or a link to an official webpage.

They would also need to provide alternative evidence of their identity and nationality, or entitlement to apply from outside the UK. These can include:

documents previously issued by the Home Office

an expired passport or national identity card

an official document issued by the authorities of their country of origin or of the UK which confirms their identity and nationality

They will need to apply via a paper application form if they need to provide alternative evidence of their identity and nationality, or entitlement to apply from outside the UK.

The paper application form can be requested here.

Emails accepted where possible

The Home Office have specified that in some instances email can be used to provide evidence, but where this is not possible they will provide ample time for evidence to be posted. They also say they will take into consideration ‘any disruption to postal services or of any reason you may be unable to post documents such as time spent self-isolating.’

Continuous qualifying period affected?

The Home Office has confirmed that applicant’s continuous qualifying period will not necessarily be affected if they were impacted by coronavirus public health restrictions.

Let’s say for example, if the applicant had coronavirus overseas and could not return to the UK, or imposed travel restrictions meant they were absent from the UK for longer than planned (providing the period does not exceed 12 months).

Absences from the UK of up to 6 months in any 12-month period

Applicants who have been absent from the UK for no more than 6 months in any 12-month period, in either a single absence or multiple absences, the continuous qualifying period will not be broken regardless of the reason for their absence(s) and they will not have to provide additional information or evidence in support of your application.

A single absence from the UK of more than 6 months but not more than 12 months

Applicants that have been absent from the UK for a single period of more than 6 months, but not more than 12 months, during a 5 year continuous qualifying period due to being ill with coronavirus, and they were unable to return to the UK because they were ill or in quarantine, that absence will not cause a break in their continuous qualifying period.

Similarly, students who were studying in the UK but have had to remain in a different country due to coronavirus will not be punished for having a break in their continuous period.

Applicants who have been prevented from travelling due to coronavirus should provide a supporting letter with the application outlining the details and the dates they were ill or were in quarantine.

It is important to remember that normally only one single absence exceeding 6 months (but not exceeding 12 months) for an important reason in the 5-year continuous qualifying period is permitted.

More than one such absence is likely to be treated as having broken the continuous qualifying period regardless of the reason for it, including if they were prevented from returning to the UK because of coronavirus. This does seem quite harsh to us, because if the circumstances are truly out of someone’s control, why should they be punished?

Absence of more than 12 months

If an applicant does not have permanent residence status under the EEA Regulations or settled status under the EUSS, an absence from the UK of more than 12 months will normally interrupt their continuous qualifying period.

In these circumstances they will need to restart their continuous qualifying period by 31 December 2020 to be eligible for status under the EUSS.

Have questions? We are open as usual!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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

Email us on info@lisaslaw.co.uk.

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Rental guidance updated! What do you need to know?

New guidance has been released for people renting property from a landlord, which attempts to give clarity to such tenants. This guidance must be provided to tenants who are in a shorthold tenancy which started any time after 1 October 2015.

The information is helpful to both the renter and the landlord, so it is well worth reading and being aware of the rights and responsibilities for each person. This article will focus mainly on the tenants’ perspective, but landlords can find plenty of information in our recent article here.

Tenancy and agreements

It is important to remember that when you enter into a tenancy with a landlord, you are essentially both entering into an agreement with each other. You will both have to keep up your own ends of the deal. The tenancy is there to protect you both and make sure you are getting what you agreed to when the arrangements were initially made.

The most important advice we can give is also the simplest: read through the contracts carefully before signing anything! If you are unsure about parts of the tenancy agreement, you can always ask us to check it over for you. Never feel pressured to sign anything you are not completely certain of.

Also, the landlord is obliged to give you a copy of the latest guidance for renters, so it is important that you read through it and understand it.

Initial things to consider

Before jumping right in to renting a property, there are some key things to have at the front of your mind.

Firstly, you should be thinking about the deposit situation. Since June 2019, the amount a deposit can legally be has been capped. If the total annual rent is less than £50,000, the maximum deposit is 5 weeks’ rent. If the annual rent is £50,000 or above, the maximum deposit is 6 weeks’ rent. If the property is left in a good condition and there has been no major issues, once the tenant leaves, this deposit must be refunded.

You should also be aware of any unnecessary charges being asked of you. There is no legal cost for a landlord allowing you to view the property, or setting up a tenancy agreement. A charge to reserve a property is permitted but it must be refundable and it cannot equate to more than 1 weeks’ rent.

You must have the correct documentation ready, as landlords will need to check your identity, immigration status, credit history and in some cases your employment status. They will also check if you have the right to rent in the UK. More information on this can be found in our article: Right to Rent Checks – What Landlords and Tenants Need to Know

Is everything above board?

You need to be sure that the landlord you plan to rent belongs to an accreditation scheme. Accreditation schemes provide training and support to landlords in fulfilling their legal and ethical responsibilities. Your local authority can advise you about accreditation schemes operating in your area.

You must have the name of your landlord and an address in England or Wales where the landlord will accept service of notices, in writing. Landlords are obliged to provide you with this information and the rent is not ‘lawfully due’ until they do so.

You should also ask, if the property is a flat, if the landlord is the owner or leaseholder of the flat. Following this, ask whether the freeholder, for example the owner of the block, has agreed to the flat being let out. If the landlord has a mortgage ask whether the mortgage company has agreed to the letting. This is of great importance. The landlord may not need the freeholder’s consent but, if there is a mortgage, the lender’s consent certainly be needed. You must be aware that you may have to leave the property if the landlord does not keep up the mortgage payments, in this situation. Do not be caught out!

Alternatively, you can rent from a letting agent, so long as they are a member of a redress scheme. You should check which independent redress scheme the agent is a member of in case you have an unresolved dispute.

It is vital, in this day and age, to be aware of potential scams. Never rush into making a decision and always consult legal advice if you feel unsure about anything.

Length of tenancy

The usual length of a tenancy agreement is either 6 or 12 months, however a longer contract can be arranged with the landlord if they are willing. Alternatively, you may be offered a weekly or monthly assured shorthold tenancy which does not last for a fixed period. Even with those tenancies, however, the landlord must allow you to stay in the property for a minimum of 6 months.

Who pays for what?

When it comes to bills such as electricity, gas, water and council tax it is usual for the tenant to pay. However, this is not always the case. This must be specified within the agreement to avoid any confusion.

Inventory

An inventory should be taken and agreed upon before you move in, so that when it is time to leave the property it is clear what belongs to the tenant and what was already there when they moved in. Photos should be taken, the inventory should be agreed upon by both landlord and tenant, and then it should be signed by both parties. Both should keep a copy for future reference.

Permitted Fees

The following is a list of the permitted fees that landlords and agency can legally charge tenants. If it is not on the list, you do not have to legally pay it. This is taken directly from the Government guidance:

Legally chargeable fees include:

rent

a refundable tenancy deposit capped at no more than 5 weeks’ rent where the total annual rent is less than £50,000, or 6 weeks’ rent where the total annual rent is £50,000 or above

a refundable holding deposit (to reserve a property) capped at no more than 1 week’s rent

payments associated with early termination of the tenancy, when requested by the tenant

payments capped at £50 (or reasonably incurred costs, if higher) for the variation, assignment or novation of a tenancy

payments in respect of utilities, communication services, TV licence and Council Tax

a default fee for late payment of rent and replacement of a lost key/security device giving access to the housing, where required under a tenancy agreement

All other fees, including the following, are banned:

viewing fees, any charge for viewing the property

tenancy set up fees, any charge for setting up the tenancy or contracts

check out fees, any charge for leaving the property

third party fees, any charge for anything that is done by someone other than the landlord or tenant but that the landlord must pay for

Once you have moved in…

This is the time to keep up your end of the deal. Rent should be paid on time and without any hassling from the landlord. You should be considerate of neighbours and the surrounding area of the flat. You cannot take in a lodger or sublet without first getting the landlords permission to do so.

It goes without saying, it is your responsibility to look after the property. If you want to make repairs or do any decorating you must first ask the landlord. If there are repairs that need doing, you must always inform the landlord. In most cases, it will be their responsibility to get it fixed. Failure to report the need for repairs could be a breach of your tenancy agreement. In extreme circumstances there may be a risk to your deposit if a minor repair turns into a major problem because you did not report it.

If you or the landlord want to end the tenancy

As a starting point, it should be noted that if your tenancy has a fixed term, neither the landlord nor you will be able to end the tenancy, unless the term has run out or the other party agrees. What we talk about below is where the fixed term of the tenancy has expired.

If the landlord wants to end the tenancy:

You must be given notice before you are asked to leave the property. In most cases, currently, this notice period is 6 months. However, it can vary from case to case. More information on this can be found here.

If you want to end the tenancy:

Your tenancy agreement should say how much notice you must give the landlord if you want to leave the property. One month’s notice is typical. If you want to leave the property, you must give notice to your landlord in writing – make sure you keep a copy of the document and a record of when it was sent.

The full guidance for renters can be found here.

Have questions? We are open as usual!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

Call us on 020 7928 0276, phone calls are operating as usual and 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/

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When it comes to whistleblowing, what is the part of protected disclosure agreements?

First off, what is a whistleblower?

A whistleblower is a term used to describe a person who leaks sensitive information, reports wrongdoings, crimes, or morally questionable practices or events that occur within their own workplace. Usually, the reports are regarding people in high positions such as management or particular duties that the person has been asked to perform. Although, this is not always the case. Certain groups within organisations, such as specific teams or departments can also be reported on by whistleblowers.

For example, the case of Edward Snowden was a highly publicised whistleblowing case. Snowden leaked sensitive information from the National Security Agency in the U.S, after his ethical concerns went unnoticed by his superiors.

What is a protected disclosure?

Protected disclosures are defined under Section 43A and 43B of the Employment Rights Act 1996. To put it simple, a disclosure of information (of or about the employer) will only be qualified as protected disclosure when the disclosing employee has a reasonable belief that the disclosure is made in the public interest, instead of for personal gains and for the following one or more purposes:

a criminal offence has been committed, is being committed or is likely to be committed,

a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

a miscarriage of justice has occurred, is occurring or is likely to occur,

the health or safety of any individual has been, is being or is likely to be endangered,

the environment has been, is being or is likely to be damaged, or

information tending to show any matter falling within any one of the above has been, is being or is likely to be deliberately concealed.

The wrongdoer of such actions can be the employer, a person for whom the employer is responsible, or any other person, or group of people, within the organisation.

Some factual information must be disclosed in order for it to become a protected disclosure. Simply voicing an opinion or complaining about something is not enough. There must be sufficient factual content to back it up.

To make sure a disclosure qualifies for legal protection, it is very important that the whistleblower person comes forward in an appropriate way and to an appropriate person. If there are procedures laid out by the employer or organisation, it is very important that these procedures be followed. Such steps are sometimes laid out in employment contracts.

Alternatively, if the disclosure relates to a specific area of concern, for example the safety of employees or the general public, then the head of Health and Safety would be a good person to speak to initially.

There are two points which are worth noting:

A disclosure is not a protected disclosure if you have to commit an offence in order to disclose it. In this case, what Edward Snowden did could be protected disclosure, as the US government believes that he breached their laws and has been seeking to prosecute him.

If information is subject to the protection of legal professional privilege, the disclosure of it will not be treated as protected disclosure. For example, you want to come to Lisa’s Law to consult about your employment right. Whatever you are going to disclose to us about your employer will not be treated as protected disclosure, as discussion between you and us will be strictly kept confidential.

It should also be noted that employees’ right of whistleblowing cannot be contracted out. In another word, any contract which purportedly tries to prevent employees from making protected disclosures is void.

Why are the protected disclosures so important?

Protected disclosures are hugely important as they essentially allow the whistleblower to provide information without having to face consequences such as being fired, demoted or treated negatively once they have done so. It is a way to allow people to report any questionable activity that may be going on in their workplace, and feel they can do so without being reprimanded. As its name suggests, it is a guarantee of protection for the worker making the disclosure.

Protected disclosures can be applied to most types of worker, such as:

Employees

Former employees

Freelancers

Agency workers

Part-time workers

People on work experience

So long as the information provided qualifies for such protection, the employee concerned will be protected from any detrimental treatment from the employer.

More than a hunch!

Where the worker believes that something will happen, but it has not necessarily already occurred, the worker must reasonably believe, based on the information they have, that it is more likely than not that the bad consequence will occur. It is not enough to have a hunch or only believe that there is a moderate risk or possibility that it will occur.

The burden of proof lays on the individual coming forward with the information.

An important factor is that the information disclosed is the interest of the public and not only in the interest of the whistleblower themselves. It is unlikely that disclosures which can be assessed as being in hopes of personal gain rather than public interest will be protected.

This issue was considered in the case Chesterton Global Verman v Nurmohamed where the following factors were considered when assessing the gravitas of the information provided:

The amount of people whose interests the disclosed information served (the higher the number, the more likely the disclosure is to be in the public interest)

the nature of the interests and areas affected by the disclosure

the extent to which those areas and interests are affected by the wrongdoing reported

the nature of the wrongdoing disclosed (deliberate, malicious wrongdoing will likely have more weight than wrongdoing brought about by error)

the identity and status of the alleged wrongdoer (the larger and more prominent the alleged wrongdoer, the more likely the disclosure is to be in the public interest)

If you have further questions about necessary belief, you can get in contact with us and we will help clarify the situation for you. It is highly recommended that if there are any doubts about making a disclosure, legal advice should be sought.

What happens if a whistleblower is still punished for making a protected disclosure?

Punishment can be by way of dismissal, demotion, or discrimination or other form of detriment to the employee concerned, like pay-cut. Such punishment will be automatically unfair and unlawful. They can be grounds for unfair dismissal.

The employee shall make a claim to an employment tribunal within 3 months of such victimisation. The tribunal will have power to award the successful employee a basic award calculated in light of the employee’s age, salary/wage as in all other unfair dismissal cases and the duration of employment and a compensatory award which is to reflect the employee’s financial losses and/or injuries to their feelings.

There are the following differences between an unfair dismissal based on protected disclosure and other types of unfair dismissal:

The former is not subject to any qualifying period, while the latter requires that a claim can only be made normally after the employee has been working for his/her employer for 2 years; and

There is no cap on the compensatory award in the case of an unfair dismissal based on protected disclosure, while in the latter case, it is capped currently at £88,519.00.

This is the whole purpose of the protected disclosure, it is there to uphold the rights of the worker and allow them to come forward with information without being punished for it, so long as the information they have qualifies for such protection.

Have questions? We are open as usual!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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

Email us on info@lisaslaw.co.uk. Our caseworkers are tending to their cases with the same professionalism and efficiency as always.

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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

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Working from home renders many commercial buildings empty, but how can they be used otherwise? Consultations on development rights have begun!

Working from home has become a normal part of life due to the Coronavirus pandemic. Some will have taken to it better than others, appreciating the lack of commute or the morning rush. However, for many it is a significant challenge, having much less social interactions, being unable to meet with clients and feeling cooped up when they would rather be out and about.

While there are many different opinions regarding working from home, it does not change the fact that it has now become a necessity to keep the pandemic at bay. While there was once offices, stores and other places of work filled with people, many of these buildings now lay vacant. So the question is, what can legally be done with them?

Consultations have begun

The Ministry of Housing, Communities and Local Government has launched consultations regarding new permitted development rights for the change of use from ‘Commercial, Business and Service’ usage to residential usage in order to create new homes. Essentially, workplaces will be turned into living spaces if they can meet the requirements.

These consultations are scheduled to run from 3 December 2020 to 28 January 2021.

Use class changes

You may remember changes to the Use Classes of buildings occurred back in September when the government published The Town and Country Planning Regulations 2020. These regulations attempt to reflect the diverse nature of high streets in the UK, and fresh demands brought on by the coronavirus pandemic, which require how properties can be developed and used in different ways as time goes on. You can remind yourself of this in our article: The Law of the Land: Use Classes See Significant Changes!

Bearing these changes in mind, the government is looking to add further flexibility in terms of how buildings can be used now that many have been left empty, due to many employees now working from home. There is now a demand for a more streamlined application process and allowances for commercial property to be changed into residential property, amongst other types of developments.

Making the changes

One of the main areas of interest here is the proposed change of a building in Class E (Commercial, Business, and Service) into a residential building. Only premises which were in use class E on 1 September 2020 will benefit from the right to alteration.

According to the current information available, the proposed changes will “significantly beyond existing rights, allowing for restaurants, indoor sports, and crèches etc. to benefit from the change use to residential under permitted development rights for the first time.”

It seems to us that the government is anticipating the work from home model that has become such a big part of life will remain throughout the pandemic and beyond, meaning many commercial buildings will no longer be needed.

Size considerations

It is currently being proposed that there is no size limit on the buildings that can be altered for residential use. The thinking here is that there is no point in a building lying vacant simply because it does not meet size recommendations when it could still be used for something. Of course, where a building is far too small to be used as a residential area, this will be taken into account, but there is currently no cut off point in terms of size. It will be discussed further as part of the consultations.

It is understood that some buildings previously used for retail or other commercial use will offer large spaces to work with, potentially giving developers the chance to build multiple residential properties in their place.

Area considerations

There will be areas that are unable to be changed to residential property for various reasons, such as the area being of historical or scientific interest, listed buildings and land within their curtilage; sites that are or contain scheduled monuments; or safety hazard areas would clearly be exempted from any alterations.

The safety and health of the potential resident once the property has been altered will be considered, which means events such as flooding, fire safety, contamination, building stability and availability of natural light will always be considered before any development takes place.

Planning is key

Any applications for prior approval is to be accompanied by detailed floor plans (or blueprints) showing dimensions and proposed use of each room, including the position of windows, information necessary for the consideration of the matters for prior approval, and an appropriate fee. The consultation proposes a fee per dwelling of £96, capped at a maximum of the fee for 50 dwellings.

What do we think?

We are pleased to see planning going into this area, as we certainly agree that buildings are better off being used for something than simply standing vacant for months or even years on end. We hope that the consultations go well and that appropriate plans are written up, and some of these commercial buildings can get turned into residential ones and serve a new purpose.

With the coronavirus hitting some harder than others, and an expected increase of homelessness potentially on the cards, we would also like to see some of these buildings put to good use for those who need some extra support. It would be pleasant to see some homeless shelters get developed as well as regular flats and houses. We will have to wait and see how it turns out!

The GOV page related to these consultations can be found here.

Have questions? We are open as usual!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

Call us on 020 7928 0276, phone calls are operating as usual and 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

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Gender Pay Gap Statistics for 2020 Revealed! What can we learn?

The Office for National Statistics (ONS) has published the latest report on gender pay gap statistics for 2020. There are some positives to take from the report, as it was found that for full-time employees, the pay gap fell 2.4% between April 2019–April 2020, and for all employees, the gap fell by 1.9% within the same period. While it is still not an even playing field, the statistics show we are heading in the right direction.

What is the gender pay gap?

To remind you, the gender pay gap is the name given to the difference between average hourly earnings of men and women (not including overtime). It is a measure across all jobs in the UK, not of the difference in pay between men and women for doing the same job.

Key takeaways from the ONS report:

It is worth remembering that the statistics for this year include the period of time when approximately 8.8 million people were on furlough due to the Coronavirus Job Retention Scheme – however the impact of the coronavirus on the gender pay gap was found to be minor, according to the ONS.

There was a 9.0% pay gap in April 2019, which dropped to a 7.4% pay gap in 2020. This is clearly a positive and an improvement on last year, but there is still plenty of room to further equality.

For full time employees under the age of 40, the pay gap was almost non-existent. However, for those older employees the pay gap was over 10%. This suggests that in the future, more equal pay is projected to occur more frequently, which is great to see.

In terms of management positions, the gender pay gap has decreased.

It was found that over the last four years, the pay gap has decreased in both small and larger (those with over 250 employees) companies. Also, since 2017, organisations which employ 250 or more employees have been required by the UK government to publish and report specific figures about their gender pay gap.

Our thoughts

Here at Lisa’s Law we are huge advocates for equality in every way, including salary. We are pleased to see the numbers are moving in the right direction, but understand that there is still a long way to go before things are completely fair. A positive part of the report, in our opinion, is how minimal the pay gap is between younger employees. We believe there is good reason to be optimistic that in the not-so-distant future, the pay gap will shrink significantly as these younger people grow into more senior positions, and the old way of thinking is slowly but surely phased out of the workplace.

The full report is available here.

Have questions? We are here to help!

We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

Call us on 020 7928 0276, phone calls are operating as usual and 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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

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Get your property back! What does the new guidance for private landlords say about the possession action process?

Property is a massive part of life. It is where families make homes, people raise children, or it can be simply a sanctuary to come back to after a difficult day. However, another huge aspect of the property world revolves around business, whereby landlords look to make money by allowing tenants to rent out their property.

What happens when issues between tenants and landlords crop up, and more specifically how can landlords get tenants to leave their property when they are refusing? New guidance from the Ministry of Housing, Communities & Local Government seeks to shed some light on this situation.

Note: this article is written in relation to how landlords can act in order to reclaim their property, a follow up article on the rights on tenants will follow.

Who is the guidance targeted at?

As you may have deduced from the above, this guidance is for landlords who are letting to tenants on an Assured Shorthold Tenancy or an Assured Tenancy. It focuses on what rights landlords have in removing tenants by way of the courts.

This article will focus on the process in place for repossession of property and the responsibilities of the landlords in this situation. The full guidance can be found here.

Can it be sorted without the courts?

It is always worth assessing whether an agreement can be struck between a landlord and a tenant prior to going through the court system. Seeking possession through the courts should only be used if and where a landlord has tried all other avenues to find a solution. Claiming possession through the court will cost between £400 and £500, before any legal fees are taken into consideration, and will likely take a relatively long time to resolve. It normally takes around 2 months but with the restrictions with COVID-19 still being felt it will definitely be much longer to be fully disposed of.

Wherever possible, landlords should ensure that they attempt to find other options to resolve their situation, as this will most likely be quicker and cheaper. Landlords should communicate with their tenants directly to discuss problems such as rent arrears or anti-social behaviour. In our experience, this can lead to an easier, cheaper and less stressful conclusion for everyone involved.

Time to notify

When communications between landlords and tenants have proved to be fruitless, it is time for landlords to officially notify their tenants that they want them to vacate the property. They can do this by serving either a Section 8 or Section 21 notice.

Section 8 notice

Landlords can give their tenants a Section 8 notice if they have a reason for wanting them to vacate the premises which corresponds with a specific ground; for instance, they have broken the terms of the tenancy.

Under the provisions of the Coronavirus Act 2020, a notice seeking possession which was given to a tenant from 26 March to 28 August 2020 must have provided them with a notice period of at least 3 months.

However, these provisions have now been extended, meaning that a notice seeking possession which is given to a tenant from 29 August 2020 until at least 31 March 2021 must provide a notice period of at least six months in most circumstances.

Where a tenant has acted in an anti-social way (such as being destructive to the property) or has provided misleading information to the landlord, or are in rent arrears of at least 6 months, this extension will likely be nullified and proceedings may be able to commence immediately. This will of course vary from case to case.

How to serve a Section 8 notice

Landlords will have to fill in Form 3 in order to serve a Section 8 notice, which can be found here.

It is important that this form is filled in correctly. Landlords can seek legal advice to help with this, which Lisa’s Law can provide. If it is not filled in accurately the landlord will experience serious delays.

Landlords must specify on the notice the specific grounds they are using to seek possession of their property.

To do this, the landlord can go down two routes:

They can use mandatory grounds. These are grounds where the judge must order the tenants to leave the property if the landlord can prove the ground. For example, if there is evidence for 8 weeks’ rent arrears or convictions for anti-social behaviour.

There is also the possibility of discretionary grounds. These are grounds where the judge can only order the tenants to leave the property if the landlord can prove a discretionary ground and the judge considers it reasonable to make an order. Examples include grounds for other breaches of the tenancy agreement, such as repeated noise complaints from neighbours.

Section 21 notice

A Section 21 notice can be served without grounds. From 29 August 2020 until at least 31 March 2021 the minimum notice period is six months. That means that there must be at least 6 months between the date the tenant receives the notice, and the date after which the landlord specifies they must leave the property.

How to serve a Section 21 notice

Landlords can only use a Section 21 notice if their tenants have an assured shorthold tenancy (which is the most common tenancy). It cannot be used it if the tenants have an assured tenancy.

Landlords can only use a Section 21 notice to ask the assured shorthold tenants to leave the property:

after a fixed term tenancy ends

during a tenancy with no fixed end date, which rolls over at particular intervals of time – for example, on a month by month or week by week basis – known as a ‘periodic’ tenancy

The form which must be filed for this type of notice to be served is the 6A form, which can be found here. As with the Section 8 form, this must be filled out correctly and legal advice is recommended.

Possession Claim

This is where things can start to get increasingly stressful for landlords. If tenants do not move out on receiving the notice or after its expiry, landlords must apply for a Possession Order.

With their applications for possession, landlords will need to provide a statement of Covid-19 impact on tenants. Such impact will be considered by the Court when deciding whether possession should be granted.

Case Review Appointment Date

Unlike the normal possession proceeding, under the current pandemic circumstances, the Court, when facing such applications, will normally set up a review date for parties to attend, instead of proceeding this case to substantive trial right away. This will provide further opportunity for parties to reach an agreement.

On the review day, landlords and tenants, or their respective legal representatives as the case may be, are expected to attend. The judge will look at the relevant issues and the parties’ current position, particularly, any Covid-19 impact report filed by landlords. The Court will expect the parties to do their best to engage each other, so that they are able to reach a settlement and avoid further litigation.

If issues like anti-social behaviour, serious rent arrears or other exceptional factors are raised, the judge will make an initial assessment of them and issue further directions for the cases to proceed.

It is encouraged that landlords be open for discussion with the tenant so that a settlement can be reached in court.

There will be a possession hearing 28 days after the review date, at which a judge will decide whether to make a possession order or give other case management directions.

Warrant of Eviction

If all else has failed and the tenant still refuses to leave the property even after a Possession Order was granted by the judge, then a Warrant of Eviction should be applied for so that bailiffs will be sent to the property to carry out the eviction.

Note: Due to COVID-19 the Government has changed the law in England to ensure bailiffs do not enforce evictions over the period of national restrictions. No eviction notices are to be served until 11 January at the earliest and, given that a minimum of 14 days’ notice is required, no evictions are expected to be enforced until 25 January 2021 at the earliest.

Our thoughts

These processes are in place for a reason, and if a person is the rightful owner of a property then of course they should be able to do what they want with it, which will sometimes mean removing people who currently live there. That being said, we also have empathy with the tenants who face eviction and any evictions that do occur must be done gradually so that the tenants have some time to arrange a new place to live and get their things in order.

We agree with the ruling for no bailiffs to be used at the moment, as the COVID-19 pandemic is still going on, and we would not like to see anyone made homeless over the cold winter months. However, the law must be respected and the relationship between landlords and tenants works best when there is a mutual respect between the two. We never want to encourage litigiousness, but are willing to fight any battle when agreements cannot be made without legal intervention.

Have questions? We are open as usual!

We are open as usual throughout lockdown! We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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

Email us on info@lisaslaw.co.uk. Our caseworkers are tending to their cases with the same professionalism and efficiency as always.

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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

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Working with children during COVID-19 – A look at the new Legal Guidance

New legal guidance regarding working with children during the Coronavirus pandemic has been released by The Children and Family Court Advisory and Support Service (Cafcass).

What do Cafcass do, exactly?

Cafcass represents children in family court cases in England. They advise courts about the best interests of children and help the voices of young people be heard during legal proceedings.

Their main concerns lies with ensuring children’s welfare is treated as a top priority. They are often asked by the court to work with certain families and then advise the court on what they believe to be the best interests of the children. They cover three main areas:

divorce and separation involving issues where parents or carers are unable to agree on arrangements for their children

care proceedings, sometimes referred to as ‘public law’, where social services have serious concerns about the safety or wellbeing of a child

adoption

You can check out their website here: https://www.cafcass.gov.uk/

What does their guidance say?

According to Cafcass, they have received the highest volume of case work in their history over the course of 2020. The problems attached to COVID-19 have trickled down to the family courts, creating a large amount of cases which cannot be handled as efficiently as they normally would be, due to all the restrictions that have affected court proceedings.

The guidance aims to provide clarity on when staff should have direct contact with children and families, what support is available to the caseworkers, how office based work should proceed and how court attendance should be handled. All this needs to be in line with COVID-19 safety guidelines.

Direct contact with children and families

Each case will come with its own set of circumstances and the necessity of direct contact will be assessed on a case by case basis. The expressed preferences of the families concerned will be taken into consideration. Seeing a child and their family in person is usually the most desirable option but there are some things which must be taken into consideration before such plans are made.

For example, if seeing one child in person will detract from time spent on other cases, it may be worth reassessing in order to find a more even way to split the time, so that no favouritism is shown.

The guidance states that:

“A combination of both professional judgement, and negotiation with children and their families will be used to inform the decision about how children are seen and as a result, how best to understand their experiences, needs, wishes and feelings in a timeframe which is in their best interests.”

In layman’s terms, communication with the family is key and the decision to move ahead with direct contact must be an informed one. The choice must be made based on information previously gained.

Also, if the caseworker falls into a category which makes them more vulnerable to catching or being seriously affected by COVID-19, then it is unlikely that they will be permitted to carry out face to face meetings.

Safety considerations while working with children

If the family members, children, or caseworkers are worried about the effects of Coronavirus then video-communications should be used in place of direct contact wherever possible. Where direct contact is preferred, face masks will be worn, hand sanitizer used and where possible the 2m social distance rule should be observed.

Office based work and meetings

All Cafcass offices are planned to re-open at the end of November 2020. The following guidelines have been issued for people visiting the offices in order to keep staff and clients as safe as possible:

Do not arrive any more than five minutes before your meeting is due to begin;

Cafcass recommend that, where possible, you make alternative arrangements for the care of your child/children if they do not need to be seen. They also request adult parties attend their appointments alone, if possible. This is to reduce footfall in their offices.

If your child/children are being seen it is encouraged that they bring any toys or items to keep them occupied with you as at present the offices do not have toys available due to cleaning and hygiene regimes;

It is advised that where possible people bring any refreshments they may require with you, again to stop the use of cups which may not be sanitary;

Upon arriving at the Cafcass office, clients will be asked to follow some simple Covid-secure procedures. This will involve;
- sanitising your hands using the station we have provided for you
- confirming your details, so that they can book you in for your appointment at reception.

You will also be guided to use the office space securely following the clear signs and floor markers in place to ensure we always maintain social distancing measures for everyone’s safety.

Attending court

The courts are now open and have completed the appropriate risk assessments. Hearings that cannot be heard by video or telephone and which cannot be delayed will be held in a priority court and tribunal building.

Currently, there is significant use of hybrid hearings where the parents or other family members attend in person together with their advocates, while the guardian, social workers and other experts attend remotely.

There have been some delays in court proceedings due to COVID-19, whereby the processing of applications can take longer than usual.

Ultimately, the decision whether to hold a hearing remotely is one for the judge in each circumstance.

What do we think?

It is good to see Cafcass being proactive in releasing this guidance, as the work they do is of vital importance. The clearest part of this guidance, in our opinion, is the rules surrounding visits to their offices, as there is a useful practicality about them.

The rules surrounding direct contact do seem somewhat vague, and essentially are laid out as a reliance on the professionalism of the case worker to decide whether or not to meet children and families directly based on evidence they procure. This is acceptable, but it would be more beneficial to see some tangible guidance here, with some key focus areas. Although, as the cases will vary greatly from one to the next, we can understand that this could be a challenge to put into writing.

We of course sympathise with all the added pressure on the Cafcass staff, as the Coronavirus pandemic has brought with is unprecedented challenges. As legal practitioners ourselves, we understand the need to work together to do what is best for the client during these times.

Have questions? We are open as usual!

We are open as usual throughout lockdown! We are ready to provide you with a fantastic legal service and there are many ways for you to contact us!

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

Email us on info@lisaslaw.co.uk. Our caseworkers are tending to their cases with the same professionalism and efficiency as always.

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/

Or, download our free app! You can launch an enquiry, scan over documents, check progress on your case and much more!

Links to download below:

iPhone: https://apps.apple.com/us/app/lisas-law/id1503174541?ls=1

Android: https://play.google.com/store/apps/details?id=com.lisaslaw

lisaslaw@web

See Full Bio

News and Insights

Background

Judgment

Comments

Have questions? We are here for you!

Who counts as a frontier worker?

What are the specific requirements?

Qualifying work

What benefits does a frontier worker permit have?

The permit has limits!

No time to waste!

Have questions? We are open as usual!

Ready to take your case:

Conveyancing continues:

We are at full strength:

Many ways to contact us:

Extra evidence needed?

Emails accepted where possible

Continuous qualifying period affected?

Have questions? We are open as usual!

Tenancy and agreements

Initial things to consider

Is everything above board?

Length of tenancy

Who pays for what?

Inventory

Permitted Fees

Once you have moved in…

If you or the landlord want to end the tenancy

Have questions? We are open as usual!

First off, what is a whistleblower?

What is a protected disclosure?

Why are the protected disclosures so important?

More than a hunch!

What happens if a whistleblower is still punished for making a protected disclosure?

Have questions? We are open as usual!

Links to download below:

Consultations have begun

Use class changes

Making the changes

Size considerations

Area considerations

Planning is key

What do we think?

Have questions? We are open as usual!

What is the gender pay gap?

Key takeaways from the ONS report:

Our thoughts

Have questions? We are here to help!

Who is the guidance targeted at?

Can it be sorted without the courts?

Time to notify

Section 8 notice

Section 21 notice

Possession Claim

Case Review Appointment Date

Warrant of Eviction

Our thoughts

Have questions? We are open as usual!

What do Cafcass do, exactly?

What does their guidance say?

Direct contact with children and families

Safety considerations while working with children

Office based work and meetings

Attending court

What do we think?

Have questions? We are open as usual!

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