Bailiffs are getting ready to comply with new rules on their behaviour which came into effect on 6 April 2014. 

The changes put in place new mandatory training and certification requirements for bailiffs and simplify the fees that they are allowed to charge for their services.

They also impose rules on how and when bailiffs can pursue debts, including:

  • Stopping bailiffs entering homes when only children are present;
  • Banning bailiffs from visiting debtors at night – they are only be allowed to enter between 6am and 9pm;
  • Banning landlords from using bailiffs to seize property for residential rent arrears without going to court;
  • Preventing bailiffs from taking essential household items, such as a cooker, microwave, refrigerator or washing machine, which are deemed to be reasonably required to satisfy the basic domestic needs of the debtor;
  • Ensuring a notice period of seven days is given to the debtor before bailiffs take control of the debtor’s goods;
  • Banning bailiffs from selling goods removed from a debtor, unless seven days have passed from the date the goods were removed;
  • Making bailiffs responsible for proving to a court that there are, or are likely to be, goods of the debtor on the premises before being granted the power to use reasonable force to gain entry.

Before a warrant is granted, bailiffs must give the court information on the likely means of entry, the amount of force required and how the premises will be left in a secure state afterwards.

There are some very good, reputable bailiffs around, but there is also some bad practice out there that needs to be dealt with.   While the new rules are designed to reduce bad practice by a minority of bailiffs, they do not reduce the overall role or powers of the bailiffs to act in respect of persistent debtors.

If you would like assistance in relation to a debt issue, call Andrew Geddes on 01638 661116.

 

Posted 15/04/2014

 

 

 

 

 

The judge in a nuisance case relating to noise generated by a local business raised some very interesting issues which could have relevance to anyone considering similar action.

In this case, a resident complained about a noise nuisance from a speedway venue situated close to their property. The speedway had originally been built, and planning permission granted, in 1975 although there had been some issues since then relating to its use vis-à-vis the original activities for which planning permission had been granted.

The complainant’s residential property was situated 500m from the venue and had been purchased by them in January 2006. Three months later, they contacted the local authority about the noise nuisance with the result that a noise enforcement notice was served on the speedway requiring it to make various modifications to mitigate the noise. However, this did not resolve the problem and the matter ultimately ended up in court.

The court examined the arguments and came to some very interesting findings, that:

- it is not a defence to a claim in nuisance to show that the claimant had acquired, or started to occupy, their property after the nuisance had started: that is, it is no defence that “the claimant had come to the nuisance”.

- it might be a defence for the defendant to argue that as it was only because the claimant had changed the use of, or built on, their land that the defendant’s pre-existing activity was claimed to have become a nuisance, the claim should fail (although this argument was not applicable in the present case).

- it is not a defence, in and of itself, to a claim in nuisance that the activity which is said to give rise to the nuisance has the benefit of a planning permission, although this would be taken into account (in this case, in relation to the noise levels referred to in the original planning permission).

The court found for the complainant and issued an order for damages and placed an injunction on further operation of the speedway venue in its current form (allowing for the injunction to be lifted if certain specific changes were made).

This judgement gives hope to the beleaguered and also sends a message to local businesses not to rest simply on the paperwork for their planning permission. As the judge said, the speedway venue had not achieved the right by dint of its planning permission to make noise.

If you would like assistance in relation either to a planning application or to a nuisance complaint, call Andrew Geddes on 01638 661116 for further information.

 

Posted 15/04/2014

The Supreme Court ruled in a recent case that payments made by a company into a retirement benefits scheme in favour of one of its directors did not constitute earnings for national insurance purposes and the company was not, therefore, liable to make national insurance contributions in respect of the value of the payments.

The main point at issue was whether payment of company money into a retirement benefits scheme was a payment of earnings to the member of the fund within the rules set up by the Social Security Contributions and Benefits Act 1992. It was accepted that it was for his benefit but was it ‘earnings’ as HMRC argued?

Part of the court’s response related to timing. It was argued that a person could not earn remuneration both when his employer paid money into a trust to create a fund for his benefit and again when, at a later date, that trust fund was paid out to him.  It was also argued that ‘earnings’ should equate more to ‘payments made’ which, in this case, would be deferred until the trust fund paid out.  

The court therefore concluded that the transfer to the trust was not payment of earnings to or for the benefit of the member within the meaning of section 6(1) of the 1992 Act and, as such, would not make the company or the recipient liable for associated national insurance contributions.  This ruling is a valuable clarification of the rules on when National Insurance payments must be made. 

Earnings, taxes, pensions and their various relationships is a complex area and advice in setting up schemes, especially where they are non-standard, is essential.  If you would like assistance in relation to an employment issue, call Andrew Geddes on 01638 661116 for further information.

Posted 24 March 2014

In the past year more than 200 licences have been removed from rogue personal injury claims firms which have flouted the rules, as the Government continues to crack down on companies which abuse the system.

Action against claims management companies which have failed to comply with industry standards has been stepped up over the last 12 months, as part of wider action to clamp down on bad practice, including bombarding the public with misleading advertisements and cold calling.

New statistics show the Claims Management Regulation Unit at the Ministry of Justice revoked 200 licenses last year, taking the total of closed firms to more than 1,100 since the start of regulation in 2007. Government action has also seen the total number of claims management companies drop by more than 1,000 since a peak of 3,367 in 2011 to 2,254 in November 2013.

Tougher rules to further protect customers taking on the services of claims management companies also include bringing an end to all verbal contract arrangements between consumers and claims management companies agreeing written contracts before any fee can be taken, banning firms which offer cash or gifts for profitable claims and an order that firms must inform clients within 14 days if enforcement action has been taken against them.

Claims management companies are often an unnecessary extra layer of administration in a case and can lead to an increase in costs. The new rules to regulate such companies have been a great help in protecting clients from rogue operators. A client’s most efficient and cost effective route when making a claim is to go direct to their local solicitor.

If you would like assistance in relation to a personal injury matter, call Anthony Scott  on 01638 712243 for further information.

Posted 24 March 2014

 

If you run a business with employees, a recent case at the Tax Tribunal has underlined the need to maintain a log of the dates that you send your PAYE payments to the Revenue.  So found a company in a recent case where they challenged an HMRC late-payments fine of £25,000.

The case revolved around the Effective Date of Payment logged by HMRC which, in this case, showed payments being anything from a few days to a few weeks late.  HMRC argued that all post was dealt with and cheques banked on the day of receipt. The company director, however, argued that all post was posted on the day the respective cheque was dated and that this always took place two to three days before the due date, i.e. in plenty of time.

The court found the company director to be a credible witness, with paperwork (cheque dates) and office procedures which backed up his version of events.  On this basis the court reasoned that either the post office was less efficient than reported (it claims that 93% of first class mail is delivered by the next day) or that HMRC did not always manage to log its post on the day it arrived.  Given the influx of mail that HMRC must receive on the common PAYE payment date each month, the court decided that the latter was the more likely and accepted the company’s challenge.

The court is generally sympathetic to HMRC and, without contrary argument, would have accepted its position.  However, the result of the case was a welcome success for common sense.

If you would like assistance in relation to disputes with HMRC, call Andrew Geddes on 01638661116 for more information.

Posted 24 March 2014

 

An application for change of use of a property from agricultural to residential was recently turned down because the applicant had deceived the Local Authority.  

The applicant had bought land in the green belt and had successfully applied for planning permission to build a barn.  The barn was then covertly converted into a house, although to outward appearances it still looked like a barn, and the applicant lived there in secret for four years.  He then applied for a certificate of lawfulness of use of the building as a dwelling house, on the basis that the building had been used for that purpose unchallenged for the past four years. (The four-year statutory period is designed to give a planning authority time to discover an unlawful building operation.)  

The case came to court and it was found that the applicant’s conduct throughout had been calculated to mislead the Council and to conceal his wrongdoing, albeit that he had done nothing illegal.  The application for change of use was ultimately rejected.  

This case demonstrates that deception and dishonesty should never be used as a way to achieve planning goals.  If you would like assistance in relation to a planning application please contact Andrew Geddes or Jacqueline Spencer on 01638 661116.

Posted 10/12/2013

A recent legal ruling has found that the High Court has jurisdiction to order the “return” to England of a small child, born in another country who had never lived or visited England, on the basis that he had British nationality. In other words, a person born outside the United Kingdom is a British citizen if at the time of their birth their father or mother was a British citizen.

In this case, the parents had married in Pakistan then settled in England where their three older children had been born. They then spent some time in Pakistan where the fourth child was born. The marriage broke down and the mother moved back to England leaving her children in Pakistan.  The mother then started proceedings to have the children returned to her.  All four children were made wards of court and their return to England was ordered. A subsequent appeal by the father was disallowed in relation to the first three children but allowed by the Court of Appeal in relation to the fourth child who had never been to England.

However, the mother was given leave to appeal to the Supreme Court, where it was ruled that a habitual residence could exist in a state which was the home of the family unit of which the infant was part and was where he would be but for force majeure.  Accordingly the court ordered the return of the fourth child.

Custody proceedings where parents live in different countries can be difficult but this case falls on the right side of an important boundary. If you would like assistance in relation to this or any other matters of Family Law, please contact Anthony Scott on 01638 712243.

Posted 04/12/2013

 

A recent Court ruling has found that many air passengers may have been denied their rightful compensation for flight delays.

Courts in England and Wales will allow compensation to be paid out for flight delays dating back six years but some airlines have been telling customers that under the Montreal Convention they only need to consider claims for delays that happened within the last two years. As a result, some passengers will have been fobbed off when entitled to compensation for avoidable flight delays that occurred more than two years ago and are unaware that they would be likely to win in court.

UK resident James Dawson, brought a claim to court last December, almost six years after he was delayed by eight hours on a flight to the Dominican Republic from Gatwick because there was insufficient crew to operate the flight.   Whilst airlines can turn down compensation in the event of delays caused by extraordinary circumstances, such as extreme weather, industrial strikes, and unexpected technical faults, they must have made all reasonable efforts to get the plane away on time.  Airlines based in, or taking off from, an EU country are liable to pay compensation of up to €600 if a flight has been delayed by more than three hours.

To avoid paying out compensation, some airlines have been using a legal argument that would simply not stand up in court.  If you would like assistance in relation to a compensation claim, call Anthony Scott on 01638 712243 for further information.

Posted 04/12/2013

 

Recently a client came to see me for advice on Asset Protection.  She had been approached by a company offering to arrange her affairs should she go into, or be taken into, residential care and decisions would have to be made as to whether to sell her home or rent it to cover care fees and other expenses.  Although only in her late sixties she has few family locally so it is wise to consider these matters early and to make appropriate provision.

My client informed the salesman that she already had a solicitor so would not need his services but he made a point of saying how very expensive solicitors were and how much better off she would be with his company.  Wisely, my client chose to investigate this before making a decision.  After discussing with me what would need to be done – this would amount to the transfer of property into a Trust, a Trust Deed and Lasting Power of Attorney - she asked me what my fees would be, but before telling me what the salesman quoted to her.  She was very surprised to learn that our fees were less than half the figure she was quoted.

A lesson to be learned here is never to take anything on trust, make sure you contact a solicitor before committing yourself, otherwise you may be paying well over the odds for what amounts to basic services. This also applies to Will Writers and to Bereavement Services offered by banks, both of which can be extremely costly, the latter usually not even handled by the banks themselves but by companies to which they are commercially linked.  If you would like further information on this or related matters please contact me, Andrew Geddes on 01638 661116.

Posted 03/12/2013

Dog owners will be safe from prosecution under revised dangerous dogs laws if their pet attacks someone trespassing in their home – even if the “intruder” is doing a good turn. This is an important clarification of the law relating to animals as dogs cannot be expected to “ascertain the intentions” of those entering a property before reacting.

The clarification comes in response to MPs scrutinising proposals to update the law in England and Wale where the Government plans to extend the existing 1991 Dangerous Dogs Act to cover dog attacks in homes. Currently, the act covers only attacks by dogs in public places and private areas where animals are barred, such as a neighbour’s garden or a park.

The change would extend the scope of the law to enable a prosecution to be brought against anyone whose dog injures someone, or acts aggressively, in a private place where they are permitted to be, such as the owner’s home. But dog owners will not be able to be prosecuted if the victim was trespassing in their home.

More than 200,000 people a year are estimated to be bitten by dogs in England, based on research for the British Medical Journal.

If you would like assistance in relation to the legal status of your pets or their behaviour, call Anthony Scott on 01638 712243 for further information.

 

Posted 15/10/13