The most talked about proposal is probably the suggestion that employees will be required to have 2 years continuous service (as opposed to the current one year requirement) before they can claim unfair dismissal.  There are fears that this may disproportionately affect certain groups in the workforce, e.g. young people or mothers who have taken career breaks.  However, the government believes this step will encourage hiring of more staff and increase flexibility whilst maintaining fairness.   According to government figures, this should reduce unfair dismissal claims by between 3,700 – 4,700 annually

Other proposals include:

• Requiring all claims to be submitted to ACAS before they go to tribunal so that there is a period of up to one month to allow for pre claim conciliation to take place.

• Increasing the situations in which employment judges may decide cases alone, without the assistance of the wing members.

• Publication of an employer’s charter telling businesses what they can and can’t do.

The consultation closes on 20 April 2011.

For more information please contact: Neil Emery, Associate

The use of a suitable set of standard terms and conditions of business offers a number of clear advantages for a business. It offers the convenience of having a set of terms in place which can be used regularly, avoiding the time and expense involved in drawing up specific terms for each individual transaction and providing certainty that the business will be trading on broadly consistent terms in each case. It enables a business to introduce contract terms that are advantageous to it, in a format that leaves little room for negotiation. It can also allow the development of standardised contracting procedures, which in turn means that more junior staff can be trained to handle and conclude contracts.

Where goods or services are regularly provided on credit, a tailored and well drafted set of terms and conditions can help to reduce instances of late payment, enable charges to be imposed for late payment and reduce the costs and time required for debt collection and for resolving disputes.

When looking to update or implement new standard terms and conditions, it may be tempting to search the internet and download a template. Several pages of legally worded clauses might appear like a good solution. However, this option will invariably have two inherent flaws: 1) the commercial terms in the template, for example payment terms and how delivery is to be effected, might not have been customised to your industry sector and might not correctly reflect the way you conduct your business in practice; and 2) the template is likely to include a fair number of clauses that are either not needed or not up to date with current law. Without knowing exactly why, when and by whom the terms were drafted, how will you know that you can rely on them to work in practice? Will they be upheld in court in the event that you need to enforce them?

Even the best set of terms and conditions drafted specifically for your business will only be effective if it can be shown that both parties intended for such terms and conditions to form part of the contract. Seeing as standard terms are not often signed by the contracting parties and are typically set out on the reverse of other documents used in relation to the transaction, such intention is not always easy to demonstrate. Bringing your terms and conditions to the attention of the other party at the earliest opportunity, in as much of your pre-contract and contract documentation as possible, is therefore essential. This could be in brochures, catalogues and quotations, and on purchase order forms, acknowledgements or confirmations, delivery notes, invoices and websites.

Where both parties try to contract on their own standard terms by referring to them in their transaction documents, this is known as the ‘battle of the forms’. In these circumstances, the ‘last shot’ doctrine usually applies to determine which terms govern the contract, so that the last document or statement exchanged by the parties that was not explicitly rejected by the recipient will prevail.

Solicitors specialising in commercial law will be able to draft new terms and conditions, or check and update your current terms and conditions, at a reasonable cost. With knowledge of recent commercial and consumer protection legislation, they will be able to ensure that your terms and conditions are up to date and compliant with current law. They will often be able to advise also on drafting and procedural tactics your business can employ in order to help strengthen the chances of contracts being regularly formed on the basis of your own (and not the other party’s) standard terms and conditions.

For more information please contact: Haggai Peri, Associate

Vicky joins Whitehead Monckton’s Commercial Property Team and will be focussing on the twin areas of property development and rural business.

Stephen Beck, Managing Partner at Whitehead Monckton, said: “The partners are delighted to welcome Vicky to both the partnership and the firm. Non-contentious planning is a growing specialism for Whitehead Monckton and we look forward to Vicky’s substantial experience and skills bringing a new dimension to our property teams across the firm as a whole.”

Vicky’s addition to Whitehead Monckton’s partnership takes the number of partners at the firm to 14.

For more information please contact: Vicky Stoodley, Partner

Staff at Whitehead Monckton were asked to vote for the charity they would like to fundraise for during 2012, with the majority of votes being cast for chYps, Kent’s longest established Children’s hospice service and the first in the country to provide hospice care in the home.

Whitehead Monckton kicked off its fundraising in January with fundraising Zumba classes at the firm’s Maidstone office and continues throughout the year with drinks receptions, fitness challenges and a charity quiz. An impressive 14 members of staff are running The British 10k London Run in July and the firm’s aim is to raise £5000 for chYps during 2012.

Staff are also organising, funding and staffing this year’s chYps Christmas party, meaning all young patients and their siblings will enjoy a fantastic festive celebration and receive a gift from Santa.

Kerin Speedie, Partner and Head of CSR at Whitehead Monckton, added: “We are delighted to be supporting chYps during 2012. Whitehead Monckton’s CSR team is committed to raising vital funds and we are looking forward to involving our staff, clients and friends in our efforts.”

For more information please contact: Kerin Speedie, Partner

An impressive 15 teams were put together by various companies comprising of Burgess Hodgson, McBrides, Lloyds Bank, Reeves, Stiddard Financial, Nelsons, BTF, Bison Print, Dendy Neville, Brightmans, Haines Watts, UHY Hacker Young, Day, Smith & Hunter, Barclays Bank and Nat West Bank. Raffle prizes were generously donated which included a £50 Amazon voucher, a family ticket to the Hop Farm, a Grade D event admission for two at Brands Hatch and a £30 treatment voucher with Tony Woodhams – Relaxation Therapist .

A silent auction was also held on the night. The auction prize winners were: Gail Hall from Whitehead Monckton who won a Spa Day at Eastwell Manor, Tim Lavey from Reeves who won a four-ball Golf day at the Weald of Kent Golf Club, Jennifer Williamson from Reeves who won a wine tasting for two at Chapel Down Vineyard and Glen Thomas from Day Smith Hunter who won a 20 minute Helicopter flight from Polar Helicopters

The winning quiz team on the night were our accountants Reeves. However, the losing team was our Bank, Lloyds!

Special thanks go to A – Z Fisheries who did a tremendous job in organising the food for us for the evening.

For more information please contact: Kerin Speedie, Partner

Staff will be taking turns on an exercise bike and rowing machine in Fremlin Walk, Maidstone and hoping to cover the length of the river (some 70 miles) over the course of the day.

The event starts at 11am and finishes at 3pm. Members of the firm and chYps would very much like to see members of the public come along and support their efforts!

chYps Children’s Hospice has been providing world-leading care to families in West Kent and the London Borough of Bexley for 18 years. Instead of taking the child to the hospice, chYps takes the hospice to the child, where they provide full treatment and care in the family home. Children living with serious and life-threatening conditions often face long stints in hospital but chYps enables families to stay together in the family home in the comfort and security of familiar surroundings. Parents and carers in West Kent and the London Borough of Bexley have access to the charity’s all-encompassing service all day, every day. If ever a family is in need, a dedicated team of specialist chYps nurses are only a phone call away. In addition to medical care, chYps provides support for the whole family through respite, counselling, play and music therapies, youth groups and coffee mornings, spiritual care and bereavement support. chYps currently care for around 120 children and young people. It costs around £1 million a year to run this service, they get some funding from government but the majority they have to source through fundraising, grants, and legacies etc.

For more information please contact: Kerin Speedie, Partner

For more information please contact: Kerin Speedie, Partner

For more information please contact: Kerin Speedie, Partner

?

If only we had a crystal ball that we could each look in to in order to see the future. This month the hot topic, or should I say wet topic, has to be the weather; if the weather forecasters cannot foresee the torrential rain that hit the county, then we mere mortals stand little hope.

At the beginning of April, drought warnings were being issued, and many growers were concerned about the level of water they would have to maintain their crops. Two weeks later, and with a dramatic change to the weather, growers were worried that there was too much rain, and that the plants would suffer.

Although we are left with an uncertain situation at present, hopefully in the future, the effects of the weather can be mitigated. The rest of the team and I were luckily enough to see some of the exciting work being carried out at the East Malling Research Centre, when we were invited to attend the BIFGA (British Independent Fruit Growers Association) spring farm walk on 25 April.

Despite the rain which soon descended on us, we all had a great afternoon with the BIFGA members, and particularly enjoyed the guided tour around the concept pear orchard (before the rain drove us back indoors). Once you see the trickle irrigation system they have in place, and the probes that they use to see exactly how much moisture there is, it becomes clear that science is taking prediction to a new level.

As lawyers, we at Whitehead Monckton often wish we could predict the sometimes difficult situations that our clients may find themselves in. With no crystal balls to hand, however, we tend to look to prevention instead, and aim to ensure that our clients have the most up to date advice and guidance in the law as it affects them.

One area of law which has changed substantially over the last few years is in the field of employment.

After the spring walk, Neil Emery, our employment specialist, gave a talk on the Agency Workers Regulations 2010, which came into force on 1 October 2011 and granted agency workers several new rights, including those which apply immediately on their starting work, and the others which agency workers gain after 12 weeks.

For growers or farmers who hire agency workers, the implications of these regulations are serious and need to be reviewed with some care. Neil has prepared a short note of his talk, a copy of which is available on our website entitled "The Agency Workers Regulations 2010".  If you have any queries or concerns, Neil would be happy to go through these with you.

For more information please contact: Marsha Marriner, Senior Conveyancing Executive

What are agency workers?

For the purposes of the Agency Workers Regulations 2010, an agency worker is somebody who:

• Is supplied by a temporary work agency to work temporarily for and under the supervision of the hirer; and
• Has a contract with the temporary work agency which is either:

            -  A contract of employment with the agency; or

            -  Any other contract to perform work personally.

We are not talking about people whom you employ yourself, through an agency, although there is always the temptation to say that you “employ” agency workers. Try to get out of this habit and say that you have “hired” them, instead.

New rights for agency workers

Under the Agency Workers Regulations 2010, there are now two new rights for agency workers – the first which apply immediately on starting work for a hirer, and others which agency workers gain after 12 weeks.

Day one rights

From the start, agency workers have the right to equal treatment, compared with directly recruited employees in respect of:

• Collective facilities, including such things as

             -  a canteen; 

             - a workplace crèche; 

             - transport to and from the workplace; or

             - a staff room; 

             - a prayer room; and 

             - car parking (although they cannot jump a waiting list).

• A right to be given the same information about relevant vacancies as the hirer's comparable employees and workers.
• The right not to suffer a detriment for asserting rights under the Regulations.

Rights after 12 weeks

After 12 weeks, agency workers have an additional right to the same basic working and employment conditions as if they were directly recruited by the hirer. If an agency worker moves to a new role within the same organisation after the 12-week qualifying period they will retain the right to the same basic employment conditions as if they had continued in the same role after 12 weeks, unless the work or duties that make up the majority of the new role are substantively different.

Some absences will have the effect of breaking service, but certain breaks taken by the agency worker will only pause the time during which the worker accrues service during the qualification period. Breaks between assignments with the same organisation will pause the clock if they last for six weeks or less. Some other absences, such as sickness absence, jury service and annual leave, will also pause the clock.

This equal treatment only applies to:

• Pay;
• Working hours;
• Night work;
• Rest period; and
• Annual leave.

Pay includes:

• Basic pay;
• Fees and commission;
• Overtime and shift allowances;
• Bonuses based on performance (rather than bonuses paid to encourage long-term service); and
• Vouchers (for example for childcare or eye tests).

In the event that this entitlement is breached, the hirer will be liable to pay an award to the extent that the employment tribunal finds that it is responsible for the breach.

How would an agency worker know?

Agency workers have the right to request information to ensure that they are receiving equal treatment under the Agency Workers Regulations 2010. If a hirer receives a request from an agency worker for information about collective facilities and amenities, or permanent vacancies, which he or she is entitled to access from day one of the assignment, the hirer must respond within 28 days of receiving the request. It must provide a written statement setting out:

• all relevant information about the rights to which comparable employees have access; and
• the reasons for the agency worker’s treatment in relation to those rights.

An agency worker can request information about equal treatment in relation to basic employment terms and conditions by contacting the agency at any time after he or she has completed the 12-week qualifying period. If the worker does not receive a response from the agency within 30 days of making the request, he or she can request the information from the hirer. The hirer must respond within 28 days of receiving the request with a written statement setting out information relating to the relevant basic working and employment conditions of its workers.

Rights not granted to agency workers

The Regulations do not confer on agency workers a general protection against unfair dismissal, and agency workers are not entitled to equal treatment in relation to all terms and conditions. For example, the right does not include occupational social security schemes, such as company pension and occupational sick pay.

The Agency Workers Regulations 2010, however much they may attempt to put agency workers on a par with employees, do not give agency workers employee status for statutory of contractual purposes.

That said, all workers, including agency workers, are entitled to:

• National Minimum Wage (updated 1 October 2011):

             - £6.08 - the main rate for workers aged 21 and over

             - £4.98 - the 18-20 rate

             - £3.68 - the 16-17 rate for workers above school leaving age but under 18 Agricultural workers are 

               covered by the National Minimum Wage Act 1998, but may also be entitled to higher minimum rates of

               pay set from time to time by the Agricultural Wages Board.

• Not to be discriminated against
• Health and Safety protection

Anti-avoidance

Where a hirer structures an agency worker's assignments with the intention of preventing him or her from completing the 12-week qualifying period, the worker will be treated as having completed the qualifying period from the time that he or she would have completed it but for that structure, provided certain conditions are also satisfied.

To come within the anti-avoidance provisions, the "preventing structure" must be where an agency worker has:

• completed two or more assignments with the hirer;
• completed at least one assignment with the hirer and one or more earlier assignments with hirers connected to it (such as an associated company); or
• worked in more than two roles during an assignment with the hirer, and on at least two previous occasions has worked in a role that was substantively different to his or her previous role (ie not the "same role").
• In addition, the most likely explanation for the structure is that the hirer intended to prevent the worker from acquiring (or retaining) the right to equal treatment, which the worker would have been entitled to, but for that structure.

An employment tribunal will take various matters into account when determining whether or not the structure of an assignment or assignments shows that the most likely explanation for it, is that the hirer intended to prevent the worker from acquiring or retaining the right to equal treatment.

Where an employment tribunal finds that a hirer has breached the anti-avoidance provisions, the tribunal may make an additional award of up to £5,000 to the claimant. This award can be in addition to any other compensation awarded to the claimant under the Regulations.

An example of conduct that may constitute avoidance would be where a hiring employer engages an agency worker for a period of 11 weeks before terminating his or her assignment and re-engaging him or her after a break of seven weeks for a further 11 weeks.

Transfer fees

The Conduct of Employment Agencies and Employment Businesses Regulations 2003 continue to allow employment businesses to charge a transfer fee, often known as a "temp to perm" fee, when a work-seeker supplied by them accepts an offer of employment made by the hirer.

The employment with the hirer does not have to be permanent: only that the worker has a direct contractual relationship with the hirer. However, any term in the contract between the employment business and the client employer that relates to the imposition of transfer fees will be unenforceable unless the contract provides that, instead of paying the transfer fee, the employer may, by notice, choose to continue hiring the worker for a period of time specified in the contract, at the end of which the worker will transfer to the hirer's employment. There is no limit on this agreed period of hire or the level of the transfer fee.

Once an employment agency has been notified by the client employer that one of its temporary workers is to be taken into the employer's permanent employment, and that the employer has opted to continue hiring the worker for the duration of the extended period, the agency must continue to supply that same worker to the employer for the entirety of this period, on terms no less favourable to the hirer than those that applied prior to its giving this notice.

The client employer can also avoid paying a transfer fee once a certain period of time has elapsed after the end of a worker's assignment with it. This period is 14 weeks from the start of the assignment or eight weeks from the end of the assignment, whichever ends later. After this period the employer is free to hire the individual directly.

If there is a gap between two temporary assignments that a worker has with a client employer, where the gap is 43 or more days the 14-week period begins on the date that the second assignment begins. If the gap is 42 days or less it begins on the start date of the first assignment.

For more information please contact: Neil Emery, Associate

Between them a distance of 70 miles was covered, and some rain at the end of the day didn’t discourage the plucky lawyers from making the final push to complete the challenge.

LA Fitness in Maidstone provided the equipment, staff and well needed bottles of water which helped the event run smoothly on the day.
 

This brings the main total raised to date for chYps to £2,768.68
 

Between them a distance of 70 miles was covered, and some rain at the end of the day didn’t discourage the plucky lawyers from making the final push to complete the challenge.
 

Kerin Speedie, Partner and Head of CSR at Whitehead Monckton, added: “We are delighted to be supporting chYps during 2012. Whitehead Monckton’s CSR team is committed to raising vital funds and we are enjoying involving our staff, clients and friends in our efforts to make this a fundraising year to remember.”

For more information please contact Kerin Speedie, Partner

Well, as long as you’re not selling papers let’s ignore the grey skies (difficult I know) and look optimistically to bettering our businesses by working together for growth.

Consider this:

It’s Spring. Your lawn is looking patchy after a wet Autumn and dry Winter. The moss has set in – what do you do?

Do you sit and wait to see if it improves – no you don’t. You go speak to someone who knows about lawns, take their advice, buy the right stuff, do a little extra work (but with the adrenaline now pumped up by fresh ambition) and this Summer, you’ll enjoy the fruits of your labour.

For SME business owner and manager, the ‘day job’ is not far removed from this scenario.

There are people you can ask, advice you can take, and tools you can apply.

Janet Goode is one such person with experience and contacts at her disposal. Janet is a long-standing member of the executive, a Notary and a Partner at Whitehead Monckton, solicitors in Maidstone, Kent where she heads the Commercial Department. Her association with intime PROFIT is the latest of a very long list of corporate advisory attributes

Janet has an excellent understanding of SME activity and needs in the South East, locally, nationally and in its role as corridor to Europe. Company and Banking Law are her specialties – company acquisitions, disposals and reorganisation; shareholder arrangements and corporate refinancing are some of the advisory strength she delivers, helping businesses of all persuasion, understanding their needs whether a national bank or family run firm.

Consensus now has us in a double dip recession, but it is a ‘W’ shaped dip with a flat base and we are in the 3rd Wave (below). This is the best time to make a difference – a difference to your business and a difference to you.

Janet has been impressed with intime PROFIT’s approach to supporting business owners and managers with methods and procedures to help release profits that are trapped (for many reasons), just waiting for technique, impetus, fresh thinking, market direction to help unlock them.

Through Whitehead Monckton, Janet is to establish a ‘partnership service’ to provide coaching skills to help corporate clients in their particular time of need.

There is an enormous amount of talent in and around Kent. Business leaders can harness some of these skills to take ideas, inspiration (adrenalin) and advice back to their offices.

There’s also the opportunity to sign up to more focussed, one to one support.

Like the lawn, you have to do something yourself. Make the first move and ask for your FREE 1 to 1 meeting. We can introduce you to the techniques and methodology that could help unlock your own profitability.

Why now?

At this stage on the Economic Clock, you are in the best position to ride the third wave: re-organise the way you work; re-evaluate strengths and weaknesses; apply the methodology to improve and manage sales – do this now and you’ll be ready to pick up on the benefits of general economic growth.

As larger businesses and manufacturers adjust, trim and re-direct assets, the changes they make have a knock on effect, down UK’s production line to their customers and businesses who you might serve.

As their needs change, so your opportunities grow.

But you have to make changes too, changes that will enable you to take advantage of those moving goalposts we call ‘market opportunity’.

Don’t wait to see what happens in Greece or read (those gloomy papers again) where the Euro might be heading.  Keep it local, in proportion, deliverable, achievable. 

For more information please contact Janet Goode, Partner

The example given was some friends who had a daughter at Exeter University who were planning to buy a property.

The proposal was that their daughter, and probably three friends would share the house and the friends would pay rent.

They would each have their own bedroom (although another person could be squeezed into another room if necessary) and they would share the kitchen, bathroom, living room etc.

The answer to the question “Is there anything from a “legal perspective” that we should be aware of?” was, “Yes, quite a lot actually”. To recap:

The proposed arrangements are potentially subject to both licensing and planning requirements as the house will be “a house in multiple occupation” (HMO).

They do not constitute a “single household” and although they may only occupy the house for part of the year (and live at home with their parents for the remainder), they are treated as occupying it as their only or main residence.

This is particularly important as it is a criminal offence to manage or have control of an HMO which should be licensed, but is not.

It is compulsory to licence any HMO that is three or more storeys and is occupied by 5 or more people. Some Councils require smaller HMOs to be licensed and this should be checked.

It will, of course, be a question of fact as to how many storeys the building is and how many people are sharing and this would need to be considered.

Moving on to the planning requirements, it will be classified as a house in multiple occupation under Use Class C4.

If the house has previously been used as a single dwelling, then they will need planning permission to change it to an HMO.

Rather perversely, once their daughter has finished University, if she decides to carry on living there on her own, or with a partner/husband, then she will not need planning permission to revert back to Class C3 as a dwelling house.

It would, of course, be possible to buy the house in her sole name as she could then be an owner/occupier and take in two full time lodgers without planning permission but, perhaps, unsurprisingly, they were not sure they wanted to let her have total control over such a valuable asset just yet!

The friends decided to go ahead and buy but if they were to ask the same question now there would be additional issues to consider:

Even though you may be letting to friends, a proper tenancy agreement should be signed and a deposit taken. That deposit must be protected through a recognised scheme.

If the property is subject to a mortgage, you may need the consent of your mortgage provider before you can let out the property and they may impose conditions.

Changes have been suggested by the government to give local authorities more flexibility to charge full rates of Council Tax for second home owners.

If the daughter and her friends plan to watch or record television programmes, whether online or on a TV or even on a laptop, it is likely that each of them will need their own television licence.

The rent paid by the tenants will be treated as income and taxed accordingly.

So, having told them the pitfalls, the answer to the question, “is it a good idea?”, would be the classic lawyer’s response “Maybe”

For more information please contact: Vicky Stoodley, Partner

A fine example of the lack of knowledge in this respect:-

Upon receipt of instructions for a residential freehold sale, it was noted that the property benefited from a single storey rear extension, being a utility/shower room. It soon became apparent from the floor plan provided by the estate agent’s memorandum of sale that approximately three feet of the rear extension had been constructed outside the boundary of the property. The extension was added to the property some fifteen years prior to the current proprietors’ ownership and this information was not brought to their attention at the time of their purchase. Planning consent had been obtained by the previous owners and at that time, the adjoining neighbour had been served notice by the Local Authority of the proposed construction and there had been no objection.

When the current owners purchased the property, they were advised by their solicitor that the property had been extended and the necessary planning consent was produced accordingly. The solicitor could not be held negligent in this respect, as of course they had not viewed the property and no query from the clients as to the extent of the boundary had been raised.

Although approval was granted for the extension, it is not the responsibility of the planning officer to ensure that the proposed extension would be constructed fully within the curtilage of the property. Floor plans were not provided at the time the current owners purchased and therefore, having been provided with the appropriate consents for the extension, it was not apparent that part of the extension had been constructed over neighbouring property. Their buyers’ encountered difficulty with their mortgage lender and withdrew from the matter. An offer was made to their neighbour to purchase the small area of land within his boundary but the neighbour was elderly and refused to sell any part of his land. He was unable to confirm any knowledge as to the matter.

Eventually, the owners were successful in finding a cash buyer at a reduced price and in doing so also had to bear a high premium fee for a bespoke indemnity policy to provide future insurance for the defect.

The fact that planning consents are approved by a Local Authority will not provide clarification that external additions to a property fall within the boundaries and it is prudent to satisfy any concerns in this respect prior to entering into an agreement to purchase.

Conveyancing matters of this type may be resolved by claiming the land to acquire ‘Possessory Title’ to the land in question. An application for adverse possession of the land can be submitted to H M Land Registry by persons who have been in possession of the land for at least 10 years (where the estate has registered Title). Such application will be supported by statutory declarations. The Land Registrar will then serve notice upon the owner of the registered land. The applicant is required to prove their interest in the land forming whole or part of the registered estate and if the application is not opposed, the applicant is likely to be successful.

However, if a recipient disputes such application then the matter may need to be resolved by an ombudsman. The applicant will need to submit sufficient evidence to claim their right for adverse possession of the land in question.

The claim for adverse possession when land is ‘un-registered’ is generally more successful. Possessory Title can be acquired through a similar process to registered Title and a process of factual possession is necessary over a period of time, which is at least 12 years.

To conclude, upon purchase transactions, if any doubt arises with regard to the extent of the boundaries to the property, further investigations at the Land Registry to be made to satisfy your concerns.

For more information please contact: Paula Savage, Conveyancing Executive

The law in the form of the Children Act 1989 already identifies parental responsibility as the foundation of good parenting. The law as it currently stands recognises mother and father from entry on a child's birth certificate as having responsibility for the child or children. Furthermore it is the right of the child not the parents that the law recognises to be cared for by both parents. What will the government's proposals do to change that?

It is arguable that there is already an assumption in law that both parents are fit to and should be free to exercise parental responsibility whether together or separate. This only changes if there is clear evidence found that one or both parents are not acting in the best interests of their child. Of course the difficulty is the subjectiveness of that test. Parents take it upon themselves to determine this from birth for themselves. It is often when the stability of the family is threatened by parental separation that the behaviour of the parents rather than the law needs to adapt. However dealing with this effectively is the real problem that needs addressing. This will not happen all the time the court  and CAFCASS system remains riddled with delays due to underfunding.

Our role as lawyers is to aid understanding of the legal principles and help them to be applied appropriately. Discerning family lawyers who are members of Resolution have been working for more than 25 years to construct opportunities to minimise harm to the most vulnerable people affected by parental separation - the children. It is doubtful that the government's announcement  to change this area of law will reduce conflict that those children will witness but the family team at whitehead Monckton are committed to trying to make a difference for families exposed to these problems"

For more information please contact: Dawn Harrison, Partner or Graham Jones, Partner

ChYps is Kent’s longest established Children’s hospice service and the first in the country to provide hospice care in the home.

Louise Wright, Senior Corporate Fundraiser for chYps said both Tony and herself were astounded by the support given from the guests during the evening.   This brings the main total raised to date for chYps to just over £4,000.00.

Kerin Speedie, Partner and Head of CSR at Whitehead Monckton, added: “We are delighted to be supporting chYps during 2012.  Whitehead Monckton’s CSR team is committed to raising vital funds and we are enjoying involving our staff, clients and friends in our efforts to make this a fundraising year to remember.”

For more information please contact Andrea Houston, Partner

This is a dramatic, indeed draconian, remedy which can have the effect of holding the tenant to ransom and is usually affected by the landlord instructing a bailiff to attend the premises to seize goods.  In the right circumstances, it can be a remarkably effective remedy for a landlord.

Distress has been heavily criticised in modern times.  The law has not been the subject of any major reform for more than 100 years, since the enactment of the Law of Distress (Amendment) Act 1908.   In 1998, a consultation was launched which eventually led to the creation (in theory) of a new statutory regime under the Tribunals, Courts and Enforcement Act 2007 known as Commercial Rent Arrears Recovery – also called “CRAR”.  However, CRAR has yet to come into force. 

Recently there have been moves to resurrect CRAR.  On 17 February 2012 the Ministry of Justice started a new consultation on distress called “Transforming Bailiff Action”.  This will probably lead to further changes in CRAR but it does now appear likely that CRAR will finally be used.

If and when CRAR does come into force, it will abolish the law of distress for rent arrears and replace it with a system which still enables the landlord to seize goods, but with curtailed powers to do so.  It appears that the following are likely to be features of the new CRAR scheme:

1. Only “real” rent (plus VAT and interest) will be the subject of the scheme, i.e., it will not be possible for the landlord to claim other sums owing, such as insurance and service charges.
2. A minimum amount of at least 7 days’ rent arrears must be due.
3. The landlord must first serve a Notice of Enforcement before entering the premises.  This is the subject of further consultation, but CRAR as originally envisaged, would require at least 14 days’ notice to be given to the tenant.
4. To prevent tenants from removing their goods during the notice period, it is possible that the Court will have the power to reduce the period.  However, critics say that if it is a requirement for the landlord to give the tenant notice of his application to the Court, it may run the risk of defeating the object of the exercise.
5. What is currently well known as the “walking possession agreement”, by which the bailiff does not immediately remove the goods he has seized, will become a “controlled goods agreement”.
6. The bailiff is likely to be able to enter the premises on any day of the week between 6am and 9pm, as well as outside these hours, if the premises are open for trade or business.
7. It will be necessary for the tenant to be provided with a written valuation of the goods before they can be sold with a delay of at least 7 days before the sale.

If and when CRAR finally comes into force, whether or not it is a desirable reform of the law, will largely depend on whether you are a landlord or a tenant.  It is after all, the present ability of the landlord to enter the premises without any prior warning which makes it so effective.

Landlords will fear that the requirement to give notice may severely hamper the effectiveness of the remedy.  On the other hand, tenants who are struggling but are trying their best to keep going, will be relieved that it seems they will be given a window in which to try and find a way to pay.

For more information please contact: Christopher Longden, Partner

Throughout 2012, staff at Whitehead Monckton solicitors have been working towards a fundraising target of £5,000 for their nominated charity chYps.   Following events such as the Quiz night, Bluebell run, cheese and wine tasting and rowing/running the equivalent length of the river Medway on gym exercise equipment, this latest event has seen the year’s fundraising target exceeded within 6 months.

For more information please contact Kerin Speedie, Partner

Pensioners moving into care homes, who are not entitled to state funding, will be given state loans so they do not have to sell their properties immediately, under new plans.  People will be able to borrow money from the councils at a nominal interest rate, with the sum being paid back after death.  This scheme which is to be introduced across England in April 2015 is intended to help around 40,000 people a year who are forced to sell their homes to cover care costs.  Some local authorities already operate a similar system, but provision varies widely across the country.

This “universal deferred payment” scheme for care homes was first proposed by a Royal Commission more than a decade ago and since then councils have been able to offer interest free loans to people who face selling their home to pay for care. The new scheme, however, will order councils to provide the loans.

This announcement is part of a raft of proposals being published by the Health Secretary Andrew Lansley.  He is releasing a white paper and draft bill on social care, as well as a report detailing the progress towards solutions on key issues.

Many believe one of the key issues to reforming the system is the recommendation of placing a cap on the amount anyone pays towards care during their lifetime at £35,000.  The cap is viewed as an essential part of getting the public to plan for old age and to also encourage the insurance industry to start developing policies for them.  The cap will not be included in the white paper but will be included in a separate “progress report”.  An agreement is yet to be reached how the cap will be funded and the final decision is likely to be delayed at least until 2014.

The social care proposals are also expected to include initiatives to help careers and give people greater control over their own care.  The Government is keen for more pensioners to be looked after in their own homes, rather than go into nursing homes.

For more information please contact: Yvette Ratchford, Senior Solicitor

June 2012 saw Great Britain mark 60 years of the Queen’s reign and the Diamond Jubilee celebrations took place throughout the extended weekend. It seemed that not even the British weather could dampen the Great British public’s spirits.

My clients have been kept busy trying to find breaks in the weather to continue with spraying or for many of my grower clients, having to assess the level of damage that the weather has caused on this year’s crop.  

The end of May marked the return of the Heathfield show. The show is a great advocate for encouraging and advancing the knowledge of the countryside to local people in the southeast. It is also a chance for local farmers and agricultural specialists to get together and discuss the latest updates available in the market and, not forgetting, my favourite past time sitting and admiring the largest tractor on site…

This month I attended a course highlighting various issues concerning agricultural land.  Given that in the summer months the southeast countryside is inundated with stalwart ramblers, I listened with great interest when public rights of way were discussed and the mine field that seems to surround them.

For many farmers they are difficult to manage and furthermore the paths which historically have been used don’t always match up with the definitive maps and statements. For many famers they are unaware that public rights of way at common law can be acquired by lack of permission. 

So when dealing with uninvited visitors here is what you can do to protect your interest:-
 

1. Ensure that where there has been access over unauthorised routes that you erect signs advising the public that this route is private.  The wording needs to be clear and specific – simply stating this is private land will be found by the courts to be too ambiguous.
    
2. Check over the definitive map to ensure that the routes on the ground match with these and deposit with the local authority a statement in which you confirm what the public rights of way over your land are.
    
3. If signs have been de-faced or torn down over private areas replace these to continually advise the public that the area is private.  Take a recording of the defacing and deposit this information with the local authority.  By doing this you are working towards protecting yourself against any claim

For more information please contact: Marsha Marriner, Senior Conveyancing Executive

So with the rate of Inheritance Tax set at 40%, there are still perfectly legitimate steps you can take now to help mitigate this. The use of Pilot Trusts for Inheritance Tax planning has been available ever since the tax came into being in 1986, but are often forgotten or overlooked.  This is a shame as they can help to save very significant amounts of Inheritance Tax when used properly.

Pilot Trusts are best used to help protect assets which are currently exempt from Inheritance Tax to ensure that they continue to be enjoyed by your family whilst remaining tax free.

There are commonly three types of assets that can benefit from these trusts, although to be fair they can also be used in many other circumstances as well:

• Pensions
• Death in Service payments
• Business and agricultural assets

The use of the trusts is best explained with an example:

Paul has a death in service benefit valued at £500,000. When he dies, he would like his wife Victoria to benefit from this.

The tax position if Paul took no action

If Paul gets the funds paid to Victoria when he dies, there will be no Inheritance Tax at this point as it is spouse exempt. However, the funds will form part of Victoria’s estate for Inheritance Tax when she dies. Her estate already includes the family home of £300,000 and savings of £200,000. This brings her total estate to £1,000,000. Assuming her estate can benefit from Paul’s tax-free allowance, then her combined tax-free band will be £650,000.  However, you can see there will still be Inheritance Tax to pay on the excess of £350,000 at 40% giving a tax bill of £140,000 which will go straight to the tax man rather than their children.

If Paul had created Pilot Trusts

Paul creates two Pilot Trusts during his lifetime.  These are discretionary trusts created with just a £10 deposit. They are like shelf companies with nothing substantial in them, sitting there waiting for money to be deposited into them at some point in the future.  However, the crucial point is that each Pilot Trust has its own tax-free band, currently worth £325,000. The value of these two nil-free bands held by the Pilot Trusts more than covers the value of the death in service payment of £500,000.

Therefore, on Paul’s death, he directs his benefit to be divided equally between his two Pilot Trusts. These trusts can pay income and/or capital to his wife Victoria during her lifetime and/or their children. These family members do not personally own the assets in the trusts, so on Victoria’s death, their value does not form part of her estate for Inheritance Tax and can pass to their children tax free. On her death, Victoria’s estate still includes the family home and savings worth £500,000, but this value is covered by the combined tax-free bands of hers and Paul’s estates and will therefore also pass to the children tax free.

Therefore by using these Pilot Trusts, Paul and Victoria have increased the value of their children’s inheritance by £140,000 and the tax man will receive nothing.  An extremely good outcome and all perfectly legal!

For more information please contact Stephen Beck, Partner.

1. Ask a local estate agent or letting agent to provide a valuation on the property so that you can find out the best market rent available to you.
2. Get consent to let. If there’s a mortgage on the property, then you’ll need the mortgage lender’s agreement before you let. If the property is a long leasehold then under the lease the landlord’s consent may be required.
3. Check with your insurer that your buildings insurance will cover the property if it is let out. If not arrange appropriate cover.
4. Decide whether you want to let the property out yourself, or get a lettings/estate agent to manage the property for you. Sometimes it will be appropriate to find a lettings agent as it takes the hassle away from you, however they will charge a fee.
5. Make sure the property is in good working order. New regulations state that all gas appliances must be maintained and in good order, and you must also keep a record of all safety checks on the property. It is prudent to have all electrical appliances PAT tested. Also, ensure that any furniture and furnishings you supply meet the fire resistance requirements in the Furniture and Furnishings (Fire) (Safety) Regulations 1988.
6. Put together a list of fixtures and fittings that will be in the property at the outset of the tenancy. This will need to be agreed by the tenant when the tenancy begins.
7. Get an Energy Performance Certificate for the property. This is normally done by a surveyor.
8. Now you are ready to find a tenant!
9. Draw up a letting agreement. It is not legally necessary for the agreement to be written down if the tenancy is for less than 3 years however it does save arguments in the long run. Not only that, it’s not wise to put your most valuable asset at risk by letting without a properly drafted agreement.
10. Always use an assured shorthold tenancy to give you as the landlord more security. It allows you to regain possession of the property 6 months after the beginning of the tenancy, provided you give two months’ notice that you require possession.
11. Agree a deposit with the tenant and arrange for it to be put into a safe deposit scheme. As a general rule, it is best not to make the deposit larger than 2 months’ rent as otherwise it may be seen as a premium giving the tenant the right to sublet the property or give the tenancy to someone else.
12. Finally as a landlord you must allow the tenant exclusive possession. It is possible to enter the property to do repairs or an inspection; however you should give the tenant 24 hours written notice of this. The tenant is entitled to quiet enjoyment of the property.

A couple of disclaimers! Letting out your property is never quite as straightforward as 1, 2, 3. Make sure in all circumstances that you take legal advice on drawing up a letting agreement, and if you need any more advice or information, contact Whitehead Monckton’s Residential Property team on 01622 698000.

For more information please contact Emma Venables, Trainee Solicitor

Perhaps you made a Will when you were single, at the beginning of a new job, or the purchase of a first property.  Well, getting married will automatically revoke that Will, so if you were to die after the marriage having not made a new one, you would be “intestate” (more on intestacy later).  Make an appointment to see your solicitor to update your Wills with your new spouse as soon as possible.  It is also possible to make a Will in contemplation of marriage, so you could get it ticked off the list before you even jet away on that once-in-a-lifetime honeymoon.

So what happens if someone dies without a Will?  Their estate is distributed according to the rules of intestacy, which may not be how you would have chosen.  Depending on the size of the estate and whether there are any children alive, then the surviving spouse may inherit the majority of the estate. But if the estate exceeds £250,000 then they will only have a ‘life interest’ in half of the value of the estate, being only entitled to the income, and not to the outright capital.

The intestacy rules do not benefit step-children, more distant relatives, friends or charities.

By making a Will, you ensure that your wishes are made clear and that you have appointed people you trust as your executors to carry them out on your behalf.  Without a Will, neither is guaranteed.

You should be aware that a Will can only deal with property you own, either in your sole name, or jointly with others.  For example, perhaps you co-own a property with someone other than your significant other; you may be ‘joint tenants’ or ‘tenants in common’ of that property.  If you are joint tenants then upon your death it will pass automatically to the surviving co-owner(s) and not in accordance with your Will.  So when you make a Will, I would also advise that you ensure you check how you own property to be able to leave your share of it to your chosen beneficiaries.

But once you have made your Will, don’t stop there.  Your circumstances will constantly evolve, and other life changing events may occur (sometimes sooner than you expect!) like children.  At times like these, I would recommend that you review your Will again to ensure that you have made provision for appointing guardians for your children, and that you are leaving your estate as you wish to reflect your new circumstances.  You should consider at what age you would be happy for your children to inherit; do you think they will need the money at 18, perhaps for university funding, or would you be more comfortable with them being older?  Who would you want to be their trustees, who would look after the money for them in the meantime?

In today’s age of evermore complicated families, with second marriages and step families, it is even more important to make a Will.  You may want to ensure that your spouse does not inherit all or the majority of your estate without making provision for safeguarding your assets for your own children.  This can be done through the use of Trusts, where your spouse can have the right to the income from your assets, or the right to reside in any property, for the rest of their life, but the capital is preserved for your children. 

Having a Will is important, but so is ensuring that it is up to date, so don’t delay.  It is as important as all those other items on your wedding to do list, and will provide you and your growing family with security and peace of mind.

For more information please contact Katie Broadfield, Solicitor

Here are just some of the things you could do to plan for this eventuality:

1:  Plan in advance of requiring care to protect your assets

You should plan for care fees long before actually requiring care. Most people own their property, which they want to give to their family when they die. Early planning during your lifetime should be considered in order to help protect it from being sold to cover care fees. The right type of trust arrangement can protect your home from being sold to cover care fees.

Whilst it is possible to give away your home during your lifetime, this should only be undertaken after taking specialist legal advice and only by using lifetime trust arrangements that protect your right of occupation. Care should also be taken that you are not seen as deliberately depriving yourself of the asset for care fees purposes, otherwise you could be assessed on a notional basis as still owning the asset.

2:  Complete your Will

If you own your property jointly, usually but not limited to your spouse, you may wish to complete your Will to provide for the co-owner to continue to live in the property on your death rent free for the rest of their life.  This can be done by creating a trust in your Wills, which we call the Family Protection Trust. This protects part of the value of the property from care fees, should the survivor need care.

3: Get your affairs in order – Lasting Powers of Attorney (LPA)

It is extremely important that you consider giving authority to someone to deal with your affairs during your lifetime. This can be done by completing a Lasting Power of Attorney, in which you nominate a member of the family or a trusted adviser of your choice to deal with your affairs in the event that you become mentally or physically incapable, or in the event that you simply no longer want to manage your own affairs.   There are two types of LPA, the first covers property and finances and the second health and welfare decisions.   If you are going into a care home, it would be sensible to complete LPAs to ensure smooth payment of your fees and ease of dealing with your accounts and investments.

4 – Talk with your family

It will be simpler and less stressful for both you and your family if you have already discussed what should happen if you need care. Would you want your family to arrange additional care at home via a particular care provider, or would you prefer to move to a care home, and if so, which one? 

How should your care be funded?  If you own your property and have not protected it via a trust arrangement, would you want the property to be sold or rented?   If you have reasonable pension and investment income with only a small monthly shortfall on your care fees, then you may decide to make up the shortfall from renting the property, there are some issues you will need to consider, such as checking with your insurers that it will cover the property if it is let out, and gaining consent from the mortgage company to rent out the property.

If you wish or need to sell the property to cover your fees, ensure that you take advice as to how the net sale proceeds should be dealt with. Seek advice early on from an Independent Financial Adviser who specialises in care fees planning to provide appropriate advice on suitable investments and not simply your bank advisor.  Speak to friends or family that are have gone through the same process and ask them to recommend an advisor.  

If you would like any further information on lifetime or estate planning, Wills, trusts or Lasting Powers of Attorney, please contact one of Whitehead Monckton’s expert lawyers or IFAs on 01622 698000.

For more information please contact Garry Warman, Partner

With the Festival of British Eventing, held at the Princess Royals’ Gatcombe Park estate, having to be recently abandoned due to waterlogged ground, there are huge concerns whether the ground at Greenwich will be able to withstand the conditions.

The FEI Regulations for equestrian events at the Olympic Games outlines that “competitions must not take place in extreme weather conditions if the welfare or safety of the Horse may be compromised”. The organisers have stressed that they are pleased with how well the park is draining in spite of the unprecedented levels of rainfall we have received this summer. The Olympic schedule does allow for the eventing to be put back a single day in an emergency and spectators can move around the cross-country course wholly on tarmac or watch the action from the main arena on screens to preserve the ground conditions.

Obviously, organisers of the Olympics will have carried out a full health and safety risk assessment on all events and venues, just as the organisers of similar events (albeit not on that scale) to the Olympics will have to do, whether that event be The Kent County Show or much more local events such as beer festivals or village fetes. Unfortunately, the organisers of The Kent Show had to make the tough decision to restrict access to the car park in order to prevent serious incidents occurring.

All entertainment events are classed as “work activities” and are therefore subject to the Health and Safety at Work Act 1974 and various regulations and Codes of Practice. A duty of care is imposed on the organisers for the people who will work and attend the event. Planning for an event requires preparing strategies for crowd management, fire, first aid as well as major incident and contingency planning. A full evaluation of all risk must be carried out.

With the enormity of the health and safety strategy at London 2012 the coalition government have made a commitment to ensure that we encounter a “safe and successful games”. However, the proof of the pudding will be in the eating and whether or not Greenwich Park will be able to cope with weather conditions like those experienced at The Kent County Show remains to be seen. I shall be taking my umbrella anyway!

For more information please contact Sadie Webb, Trainee solicitor.

While there are shoots of recovery in the sector it is true that all both my landlord and tenant clients are always anxious to ensure that they are getting good value from the rents that they agree and the mechanisms for reviewing the rent in commercial leases. In that regard I was interested to read the judgment in the recent case of Scottish Widows Fund and Life Assurance Society v BGC International 2012 as the Court of Appeal were asked to interpret a complex rent review clause where the parties had not envisaged a decline in the open market rental value.

In 2006 Scottish Widows took on the sub-underlease of two floors at One America Square in London for a term of 20 years with five-yearly rent reviews. As this lease was taken out in the height of the financial market, the premises were substantially over-rented with the initial rent being substantially higher than the market rent. Scottish widows subsequently negotiated a sub-sub-underlease with BGC International, as they no longer needed the premises for its own use, which mirrored the sub-lease lease expect for the payment of a subsidised initial rent and provisions to gradually increase the rent. BGC’s lease stated that the rent review was to be calculated in part by reference to the open market value on the immediately preceding rent review date.

In a rising market, it was intended that the rent structure agreed between the two parties would have eventually aligned the varying rents under the two leases. However the downturn in the market resulted the 2006 reviewed rent being lower than the 2001 reviewed rent and Scottish Widows continued to receive a shortfall from BGC.

Scottish Widows issued proceedings for construction or rectification of the BGC lease. The Court of Appeal held that for rectification to be available, it has to be shown that the document did not reflect the agreed intention of the parties. In addition, there has to be clear evidence of what the actual intention of the parties was so that the necessary wording can be introduced to the document to put right the error.

Since the wording of the sub-sub underlease was plain and unambiguous in providing for the 2006 market rent to apply, the Court of Appeal was not prepared to construe it by reference to the 2001 rent. Therefore, the lease remained as drafted and Scottish Widows will have to meet the shortfall for another four years or so.

The message from the Court in this case was that they will not readily correct documents that have been drafted by experienced and skilled solicitors.

It is therefore essential that when you instruct your property lawyer to draft or negotiate a commercial lease, that you make sure the drafting of the rent review provision is carried out accurately. It is vital that the possibility of further downwards movement in market rental values isn’t overlooked and it must be entirely clear how the rent will be treated in such a scenario.

For more information please contact Jonathan Stallard, Senior solicitor.

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At the time of writing this, the weather is truly glorious. Not a cloud in the sky, a gentle breeze and it is a comfortable 24 degrees. Hopefully it will be the same when you are reading this and it is a beautiful summer day.

The word ‘summer’ conjures up scenes of long relaxing days in the sunshine and children playing happily in the garden. An idyllic setting and one we will look back at fondly in the dark days of December.

Sadly this is not always the reality. More accidents happen in the summer time and during school holidays than at any other time of year and if you are unlucky the summertime isn’t spent sipping a cool drink but instead in your local A&E.

Nobody is suggesting that we need to lock ourselves indoors, covered in bubble wrap whilst clutching a first aid kit. People just need to use a bit of common sense.

At this time of the year when the weather gets a bit better everyone wants to get out and catch up with their DIY, so with all this extra work going on you can expect extra accidents.

Think carefully about every project, allow the correct amount of time so you are not rushed and plan it properly. Ensure you are using the right equipment and follow instructions and guidelines

We all love to potter in the garden, the garden can be the scene of accidents and injury if we are not careful. Always use the right tools for the job and when you have finished put them away. They are dangerous objects which are easy to trip over. Wear gardening gloves to protect from cuts and chemicals and keep your children and pets away if you are using any chemicals in the garden. 

As people are out and about more, you need to be safety aware when driving. Slow down. Obey the speed limit even if everybody else isn’t; wear a seatbelt. This is a must; Avoid distractions when you are driving. Easier said than done when you have kids in the car; never drive tired. Take a break.  Finally never drive if you have been drinking, you put yourself, your passengers and everyone else at risk.

The last word of caution relates to that summer favourite, the BBQ. When choosing a barbecue, stability is essential - ensure the one you choose is strong and sturdy. Never light a barbecue in an enclosed space. Prepare the barbecue early to ensure it is at the right temperature by the time you want to cook. Never pour petrol, meths or other accelerants on to a barbecue. Some of the most serious barbecue-related accidents happen when people do this and the barbecue “explodes” in their face. Don’t leave children unsupervised near a barbecue. Make sure the barbecue is fully extinguished before you leave it. Take care when getting rid of a disposable barbecue, or barbecue coals - ensure they have cooled down before placing them in a bin.

If it all seems just too much, then you may just want to get away from it all. Which leads on to the dangers of going on holiday, but we’ll have to leave that for another time. 

For further information please contact Michaela Hills, Senior Solicitor

 What is the current law?

The law in the form of the Children Act 1989 already identifies parental responsibility as the foundation of good parenting. The law as it currently stands recognises the mother and father from entry on a child's birth certificate as having responsibility for the child or children and allows them to make decisions about their welfare and upbringing. When parents are together these decisions are made often with little problem, however on separation problems can often arise that need legal intervention and it is often the dad who feels he is on the losing end. It is important to remember that it is the right of the child not the parents that the law recognises, to be cared for by both parents. The court can be called on to decide under the terms of the Children Act what is in the child’s best interests. That decision may not coincide with either parents view. The government does not appear to have addressed this and at face value could raise false expectations that they are supporting equal shared parenting.

What happens at the moment?

It is arguable that there is already an assumption in law that both parents are fit to and should be free to exercise parental responsibility whether together or separate. This only changes if there is clear evidence found that one or both parents are not acting in the best interests of their child. Of course the difficulty is the subjectiveness of that test. Parents take it upon themselves to determine this from birth.  It is often when the stability of the family is threatened by parental separation that the behaviour of the parents rather than the law needs to adapt. However dealing with this effectively is the real problem that needs addressing. This will not happen all the time the court and Court Welfare system remains riddled with delays due to underfunding. The court will only get involved at present if the parents are unable to reach an agreement or if the court is of the view that what they are proposing is not in the children’s best interests.

Does the proposal have any teeth?

Is the government suggesting that the parent’s right should be strengthened over that of the child? This would be against the spirit of the Children Act. Parent’s rights should be protected in so far as they coincide with the interests of the child. What needs to be ensured is that those interests are properly assessed and addressed. Our role as lawyers is to aid understanding of the legal principles and help them to be applied appropriately. This does not mean heading straight to court as the forum to resolve such issues. Other agencies such as mediation, family therapy and counselling can be a less confrontational arena to review the competing needs of parents and children. Discerning family lawyers who are members of Resolution have been working for more than 25 years to construct opportunities to minimise harm to the most vulnerable people affected by parental separation - the children. It is doubtful that the government's announcement to change this area of law will reduce the conflict that those children will witness. The announcement is a nice government soundbite and whilst in many cases the right of the child to spend a reasonable amount of time with both parents will be the desirable outcome (as it is now) it can never be an all prevailing rule.  It should remain the interests of the child that are the court’s paramount consideration. As long as these coincide with the interests of the parents an acceptable solution should be available.

For further information please contact Graham Jones, Partner and Financial Director

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One final reference to the weather is that as a planning specialist I am only too aware that the planning system certainly fits in with the saying “it never rains but it pours”.

In addition to the numerous other changes, Community Infrastructure Levy (“CIL”) will be coming to a local authority near you sometime soon, well soonish.

If you intend to apply for planning permission on any developments, CIL could prove an additional financial hurdle to your proposals. Traditionally developers’ contributions to infrastructure have only been payable as part of bigger schemes and have not affected single residential units.  All of this is set to change with the introduction of CIL.

It will be a gradual process as local authorities need to find the funding to produce their Charging Schedule to be examined.  All this from an already overstretched budget.  The government has suggested this is possible by April 2014.

CIL will be charged on all developments of more than 100 square metres of internal floor space including any new dwelling.   However, any existing floor space on a conversion will be excluded from the calculation.

How much you pay will depend on each local authority, with charges currently ranging from no charge per square metre to £125 per square metre, so it could be a significant extra cost.  It is likely that payment of CIL will be on commencement of the development and will therefore be yet another cost to be met prior to any financial benefit being realised from the site.

If you’re considering a future development, it’s certainly worth looking at submitting your application before the new CIL takes effect.  Early signs indicate that even for a scheme which currently attracts a developer’s contribution, it will be more expensive under CIL.

For more information please contact Vicky Stoodley, Partner