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Extension to the Job Support Scheme

On 24 September 2020, the Chancellor announced the Job Support Scheme (“JSS”), as explained here. In its original form, the JSS would not provide support to businesses that are legally required to close their premises due to Covid-19 restrictions, meaning that employees are unable to work. Therefore, on 9 October, the Chancellor announced an extension to the scheme.

The extension will also apply from 1 November and will help businesses that are legally required to close their premises as a direct result of local or national Covid-19 restrictions, including those businesses that are required to provide only delivery and collection services. The extension will not apply to businesses that are required by local public health authorities to close following a specific workplace Covid-19 outbreak.

Currently, there is no exclusion for large employers based on a financial assessment test (as applies under the original JSS), but there is an expectation that large employers will not claim if they are doing well enough to make capital distributions.

For the extended JSS to apply to an employee, they must be off work for a minimum of seven consecutive days following an instruction from their employer to cease work as a result of restrictions applicable to the employer's premises. In addition, a Real Time Information (“RTI”) submission notifying payment to that employee to HMRC must have been made on or before 23 September.

The government will fund two thirds of eligible employees' normal pay, up to £2,100 per month, with payments to employers being made in arrears and subject to tax. The payments will only be made in respect of periods that an employee has ceased work altogether. The only contribution required from employers under the scheme will be to cover employer national insurance contributions and auto enrolment pension contributions, but employers may make additional the payments if they wish – and, indeed, they should bear in mind that as was the case under the Coronavirus Job Retention Scheme (“CJRS”), unless they have the benefit of a contractual lay-off provision which entitles them to do so, they will need the agreement of the employee, or otherwise appropriately effect an amendment to their employment terms, if they are to lawfully make reduced payments.

An employer does not need to have made claims under the CJRS to make a claim under the extended JSS.

When its premises re-open, an employer can claim under the original JSS if it meets the criteria applicable to that part of the scheme.

As applies in the case of the original JSS, an employee cannot be made redundant or put on notice of redundancy during the period in respect of which their employer is making a claim.

HMRC intends to publish the names of employers that have used the JSS, so that employees will be able to find out if their employer has claimed for them. This has not been a feature of the CJRS.

The extension will sit alongside the original JSS and the Job Retention Bonus scheme. The online claims service is expected to be available from early December 2020.

HM Treasury has published a factsheet with some of the details as to how the extended scheme will work. However, clarification and guidance from HMRC is needed on both parts of the scheme, with detailed HMRC guidance and a Treasury direction yet to be published. For example, it remains to be seen how the two parts of the JSS will work together for employers that re-open and exactly what rules will apply to large employers in respect of the different parts of the scheme.

This leaves employers with little time to put appropriate arrangements in place by 1 November. However, we are assisting employers with arrangements based on the information currently available, to include reserving their position in respect of any developments in the way the JRS is to operate.

Guidance on the Job Retention Bonus

On 8 July 2020, the Chancellor announced that employers will be paid a £1,000 Job Retention Bonus (“JRB”) for each employee they bring back from furlough under the Coronavirus Job Retention Scheme (“CJRS”) and continuously employ through to January 2021. The Chancellor advised that, for businesses to be eligible for the bonus, the employee must be paid at least £520 on average in each month from November 2020 to the end of January 2021 (equivalent to the national insurance lower earnings limit).

The government published a policy paper on the JRB on 31 July 2020 that provided further detail on the JRB and advised that further guidance would be published by the end of September 2020. In fact, the guidance was published on 2 October, in the form of claim guidance and minimum income threshold guidance.

On the same day, the Treasury published its fourth direction on the Coronavirus Job Retention Scheme (CJRS) (dated 1 October 2020). Treasury directions set out formal, legally binding rules as to how the CJRS operates. The fourth direction modifies the CJRS to establish the JRB. It also confirms that all CJRS claims must be made no later than 30 November 2020.

Eligible employers

The claim guidance advises that employers are eligible to claim a JRB in respect of an employee if they have furloughed the employee and made an eligible claim under the CJRS.

The fourth Treasury direction states that a qualifying employer for the purposes of the JRB is one who has:

  • A PAYE scheme registered on HMRC’s real time information (RTI) system for PAYE.
  • Made a CJRS claim in respect of an employee.
  • Delivered the required information to HMRC.

The required information is the PAYE information for relevant payments made by the employer in the period beginning on 6 April 2020 and ending on 5 February 2021.

Employers can still claim if they have made a claim for the employee through the [Job Support Scheme] (JSS).

However, the claim guidance states that employers cannot claim the JRB where they:

  • Have repaid the full CJRS grant to HMRC, regardless of the reason.
  • Made an incorrect CJRS claim in respect of the employee and they were not eligible under that scheme.

Further, no JRB claim may be made “if it is abusive or is otherwise contrary to the exceptional purposes” of the CJRS or the JRB.

Eligible employees

Employers can claim the JRB in respect of employees who:

  • Were previously furloughed and an eligible claim under the CJRS was made in respect of them.
  • Were continuously employed from the end of the last CJRS claim period the employer made in respect of them until 31 January 2021.
  • Are not serving a contractual or statutory notice period in respect of the termination of their employment on 31 January 2021. (The guidance states that this includes employees serving notice of retirement, and on the face of the wording of the Treasury direction it includes notice for any reason, whether provided by the employer or the employee.)
  • Meet the minimum income threshold.

Claim can be made in respect of individuals who are not employees, such as office holders or agency workers, as long as there was a claim under the CJRS in respect of them and the other eligibility criteria of the JRB are met.

Minimum income threshold

Employees must have been paid a total of at least £1,560 gross during the three relevant tax months:

  • 6 November to 5 December 2020.
  • 6 December 2020 to 5 January 2021.
  • 6 January to 5 February 2021.

Employees must have been paid at least one payment of taxable earnings (of any amount) in each of the relevant tax months.

The minimum income threshold criteria apply regardless of:

  • How often an employer pays its employees.
  • Any circumstances that may have reduced an employee’s pay in the relevant tax periods, such as being on statutory leave or unpaid leave.

Only payments included as taxable pay will count towards the minimum income threshold. Taxable pay is the amount reported to HMRC through Full Payment Submissions via RTI. HMRC will check the information submitted through RTI to ensure that employees claimed for have been paid at least the minimum income threshold.

Further guidance on whether an employee will meet the minimum income threshold is set out in the minimum income threshold guidance, which includes examples of different employee scenarios.

TUPE

The claim guidance advises that employers may be eligible to claim under the JRB for employees of a previous business who transferred to them where:

  • The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) applied to the transfer.
  • The PAYE business succession rules applied.
  • The employees were associated with the transfer of a business from the liquidator of a company in compulsory liquidation where TUPE would have applied had the company not been in compulsory liquidation.
  • The employer claiming the JRB furloughed and successfully claimed for the employee under the CJRS as their new employer, and the employee meets all the eligibility criteria for the JRB.

An employer can therefore not claim the JRB for any employees who transfer to it after the CJRS closes on 31 October 2020.

How to claim

Employers will be able to make a claim for the JRB between 15 February and 31 March 2021.

The claim guidance states that it will be updated by the end of January 2021 with details of how employers can access the online claim service on gov.uk.

Before employers can claim the JRB, they will need to:

  • Have reported all payments made to the relevant employees between 6 November 2020 and 5 February 2021 through RTI.
  • Still be enrolled for PAYE online.
  • Comply with their obligation to file PAYE accurately and on time under RTI reporting for all employees between 6 April 2020 and 5 February 2021.
  • Keep their payroll up to date and make sure that they report the leaving date for any employees who stop working for them before the end of the pay period that they leave in.
  • Use the irregular payment pattern indicator in RTI for any employees not being paid regularly.
  • Comply with all requests from HMRC to provide any employee data for past CJRS claims.

When will payment be received?

No information has been provided as yet of how quickly HMRC will process claims. However, the claim guidance states that if HMRC are still checking an employer’s CJRS claims, it can still claim the JRB, but payment may be delayed until after those checks are completed.

Who keeps the payment?

The guidance makes it clear that employers do not have to pay the JRB over to the employee – and, indeed, the indication from the outset has been that JRBs are intended to be paid for the benefit of businesses and that they will therefore indirectly benefit employees by supporting their employer, as opposed to it being intended that they are to be passed on to employees.

Tax treatment

Employers must include payments they receive under the scheme as income when calculating their taxable profits for income tax and corporation tax purposes. However, individuals with employees that are not employed as part of a business (such as nannies or other domestic staff) will not have to pay tax on JRBs.

Shielding - Updated Guidance

Public Health England (“PHE”) has updated its guidance on shielding and protecting people who are clinically extremely vulnerable from Covid-19.

Shielding for the clinically extremely vulnerable was paused in England on 31 July and in Wales on 16 August. On 13 October, PHE updated its Guidance on shielding and protecting extremely vulnerable persons from Covid-19 (“the Guidance”). It aims to strike a better balance between keeping the clinically extremely vulnerable safe and reducing some of the potentially harmful impacts on their mental and social wellbeing associated with the previous strict shielding guidance. The Guidance sets out the steps clinically extremely vulnerable people can take to protect themselves at each local Covid alert level. The conditions automatically covered by the definition of "clinically extremely vulnerable" remain unchanged.

The corresponding guidance in Wales remains unchanged.

The government has stated that it will only reintroduce formal shielding advice for England in the very worst affected local areas for a limited time. This is to only apply to some, not all, very high alert level areas and is to be based on the Chief Medical Officer's advice. The government will write to individuals to inform them if they are advised to shield.

Those required to travel into a different local Covid alert level area for work should follow the guidance for whichever area has the higher alert level.

The clinically extremely vulnerable are advised to work from home where possible, but otherwise go into their workplace – unless they live or work in an area where formal shielding advice is in place and they have received a new shielding notification letter, in which event statutory sick pay will be available to those who qualify for it.

Those who are not advised to shield who cannot perform their normal role from home are advised to discuss temporarily changing their role or working pattern with their employer, for example, to avoid travelling in rush hour.

The Guidance includes a reminder that employers are required to take steps to reduce the risk of exposure to Covid-19 in the workplace, and that in the event that they fail to do so, the Health and Safety Executive and local authorities can take action which can range from the provision of specific advice, issuing enforcement notices, and stopping certain work practices until they are made safe – backed up by the potential for prosecution in the event that employers fail to comply with enforcement notices.

A point not spelt out in the Guidance, but which employers should keep in mind, is that a failure to make reasonable adjustments to enable a clinically extremely vulnerable employee to continue working might constitute a breach of the Equality Act 2010. There is reference, though, to the fact that employees with disabilities who need support to work at home or in the workplace can apply to Access to Work – which can also help assess whether an employee’s needs can be met through reasonable adjustments. Assistance may include a grant to help cover the costs of travel to and from work or practical support in the workplace (which can include the employee’s home); and confidential mental health support is also available.

Divorce Trauma Akin to PTSD? Try Collaborative Law!

The Mail Online today (16 October 2020) tells the traumatic account of the 53 year old consultant from Telford called Sarah who was diagnosed with PTSD type symptoms following her divorce. Sarah says her body had been "catapulted into trauma mode" after experiencing her divorce. She felt in a perpetual state of terror. She says she is envious of anyone who can divorce amicably and that she had a terrifying thought that, if she and her estranged husband could not resolve their differences and the matter had to go to Court, it would cost thousands in legal fees. Happily Sarah is now managing her stress levels with the help of alternative remedies but she is stuck, with the Decree Absolute being delayed by lockdown, and struggling to reach agreement over terms of financial settlement with her husband.

The online article suggests looking into a broader support network of family, friends and counsellors, but it does not mention collaborative law or any other form of alternative dispute resolution for couples going through relationship breakdown. Helen, another woman cited in the article, says the current legal system only fuels hostility and puts families in huge amounts of debt. Kirstine, another woman featured, refers to taking antidepressants and being unable to sleep for worrying. The message from these women's experience is "if you don't prioritise your own mental and physical health, the whole family suffers. So put your own oxygen mask on first".

What a pity none of these ladies had the opportunity of resolving their relationship breakdown through the collaborative law approach. For Sarah especially, in view of there being a group of specialist solicitors in Shropshire actively practising the collaborative law approach, it might have made all the difference.

Under the collaborative approach, couples meet (yes, even in COVID-19’s restricted times!) each with their collaborative lawyer for support, agree not to go to Court and sign a Participation Agreement to that effect. Through a series of face-to-face meetings, they work through their own agendas to agree the best outcome for their family as a whole in a non-confrontational, respectful fashion.

The couple have access at all times to a family therapist and can choose at any time to suspend their meetings, to work through issues affecting their children, or learn coping mechanisms for processing the grief of the relationship breakdown itself. Couples take ownership of their process, working at their pace and identifying the issues they want on their agenda. Experts in pensions, mortgages and financial planning can join the meetings to explain the best options available for the family and help them to find fair, tax efficient and cost-effective methods to divide assets and plan incomes post separation. Specialist solicitors advise on what the principles of divorce law are, how they apply to the couple’s circumstances and assist them in discussions leading to a mutually agreed solution.

These discussions can be as wide-ranging as the couple wish, to include arrangements for the children, how assets are to be split, how pensions and incomes are to be shared and even arrangements for pets. Nothing is off limits, it is the couple’s process. This removes the worry and anxiety as the couple sets the agenda, there is transparency of advice and they can come out of the process with a Financial Order, granted by the Court and their Decree Absolute, in a much shorter timescale than if matters had to go through the Court process, especially during COVID times. It is a fraction of the price of Court proceedings too.

Communication is promoted which makes co-parenting easier and the children thrive seeing their parents continuing to work together, often attending school events and relating to the in-laws just as happily as previously.

I am a specialist family solicitor of 24 years and have been a collaborative lawyer for over 10 years and the collaborative practice has transformed my work for the good and I would recommend it without a shadow of a doubt to every client. For more information please go to www.shropshirecollaborativelawyers.co.uk.

Shop Local - Conwy Promotes Local Shops/Cafés

#buylocal
The message to support our local businesses is nothing new, but has been brought into sharper focus by Covid-19. People might be restricted from travelling during lockdowns, or might be reluctant to use public transport or be among strangers in busy high streets and shops. Many of us just want to recognise our local businesses for the support they gave to people in these difficult times, such as setting up armies of volunteers to take free deliveries to those shielding or self-isolating, or staying open and providing a takeaway service when we all needed a Lockdown Pick-Me-Up.

Some time ago I read a statistic which said that if you shop in an independent shop, 94 pence in every pound will go back into the local community, whereas only 16 pence in every pound spent in a chain store will be recovered locally.

I’ve never been much of a shopper, I do a couple of big outings to Chester per year and you can always spot me, I’m the one with a detailed list and a face that says, “Don’t come near me, I am a woman on a mission and I might mow you down in my bid to get out of town”. It’s fair to say I’m not one of Nature’s Browsers!

However, recently I have been able to spend a couple of really nice Saturday mornings in Llanfyllin far more enjoyably than I would after doing battle with a Park & Ride and crowds and, at the same time, I can fulfil my #buylocal mission.

One such morning recently involved brunch with my mum, walking into Llanfyllin in the sunshine and starting at the lovely little vegan café that Kim has opened, Vegan Goodies Wales. I’m not a vegan but can’t eat dairy and Kim does the world’s best soya hot chocolate with swirly cream and marshmallows, something I thought I would never be able to have again. I bought a slice of her amazing cherry lattice tart (because cake counts as a balanced meal on a Saturday, right?) which she put in a takeaway box made of compostable vegetable waste. We had our usual chat about her dogs and her family (my order of priorities!) and then crossed the road to Siân’s wonderful café, Something Tasty.

She is kindly very open to me bringing my soya drinks in to have with my breakfast there and she and her smiling staff make sure we can sit inside safely, or outside in the sunshine, and have a lovely brunch to suit any taste. My hash browns habit is indulged by her without judgement!

Off then to Wyvern Woofterz, a small shop selling local-made wax melts and with a dog-grooming business attached. More dog talk with the lovely guys who own it and then sniffing around in a way even the dogs in the grooming parlour would think excessive, at all the gorgeous scented melts and being easily persuaded that I need a pack of these in my life.

Daisy Blue, a little boutique on the square, was open – selling not only clothes but lovely scarves, bags and jewellery, even I could start to see the attraction of clothes-shopping! It is spacious and thoughtfully set out and the bamboo socks with cats on have had a firm seal of approval from my friend’s 15-year old daughter, high praise indeed…….

Into Wishing Well to browse their selection of beautiful artisan cards and buy a birthday present for a friend (an ornament now taking pride of place on her hearth). My mother bought a reusable face mask that she texted later to say was the most comfortable one she owned then recovery from all the excitement of the morning with one more cup of tea!

With Christmas shopping season fast approaching, thoughts will be turning to how to manage it according to our budgets and local restrictions. More than ever, we need those unusual little surprises in our lives, to make us smile and remind us we will get through this, and that, in the meantime, there is fun to be had. I’d suggest you will find all the ingredients of fun and surprise in your local shops and, in the process, you will be making sure that virtually every penny goes back into your local community.

Happy shopping!

Law Amended so Co-habitees Can Claim Bereavement Damages

When a close relative dies in circumstances where a civil action can be brought, the law is governed by the Fatal Accidents Act 1976. This Act specifies the categories of relatives who can bring claims for bereavement damages and loss of financial dependency. The statute already allowed co-habitees to bring claims for financial dependency, however bereavement damages were only permitted for a surviving husband or wife or civil partner.

In the case of Smith v Lancashire Teaching Hospitals NHS Foundation Trust and Others the Claimant Ms Smith and Mr Bulloch lived in the same household as man and wife for a period of 11 years prior to his death. They never married and it was accepted by the court that the relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.

Mr Bulloch died as a result of the admitted negligence of the Defendant Hospital Trusts. Because the Fatal Accidents Act did not cover a claim for bereavement damages for a co-habitee the Secretary of State for Justice was joined as a Defendant on the basis that the government had failed to enact law that was compatible with the European Convention on Human Rights. As a result of Ms Smith’s case the Judge found that the Fatal Accidents Act was incompatible with the European Convention by excluding two years plus co-habitees. However the Judge was unable to award damages leaving Ms Smith with a claim to the European Court of Human Rights.

I have long been a critic of the amount of the award of bereavement damages which is currently fixed by law at £15,120. The award falls towards the upper end of the bracket for simple fractures of the forearm. I am pleased, however, to note that following the Smith decision, parliament has just passed legislation, which will mean that co-habitees will be able to claim bereavement damages for claims arising from deaths from 6 October 2020.

It is necessary for the co-habitee partner to prove that they:

  • were living with the deceased in the same household immediately before the date of death; and
  • had been living with the deceased in the same household for at least two years before that date; and
  • were living during the whole of that period as the wife or husband or civil partner of the deceased.

Cases involving co-habiting partners can be complicated if there have been periods apart and each case also needs to be carefully considered on its facts. I hope that this change in law will assist bereaved partners to at least have some recognition of their bereavement in those circumstances.

If you need advice, please contact our personal injury team.

Frequently Asked Questions about Pension Sharing in Divorce

Will I Have to Share My Pension?
This partly depends on when your pension was accrued. If it was accrued during the marriage or during cohabitation immediately before the marriage, then it will be considered a matrimonial asset, which is open to be shared. If your pension, or part of it, was accrued before the marriage or cohabitation period, then it may be excluded as a non-matrimonial asset.

However, a judge could still decide that is necessary to share part or all of a pension accrued before the marriage, if it is necessary for a fair outcome. Ask your Family Lawyer for advice tailored to your specific circumstances.

What Does It Mean If My Pension Is Shared?
Pensions can be shared in two ways. One way is for a proportion of your pension income to be paid directly to your ex-spouse by your pension provider. The payments only start upon your retirement when you start to receive your pension income. This is known as a “pension attachment order”.

The second way is for a percentage of your pension’s capital value to be transferred out of your pension pot into a pension in your ex-spouse’s sole name. The transfer takes place immediately, so that your ex-spouse can invest their share in a pension product of their choice and you can continue paying into your pension pot to build it back up before retirement age. This is known as a “pension sharing order”.

Your Family Solicitor can advise you about the pros and cons of these options.

How Much of My Pension Will I Have to Share?
The amount of pension to be shared will depend partly on the extent of your ex-spouse’s pension, the other assets in the marriage, and all the circumstances of the case, including how close you are to retirement. Speak to your Family Lawyer for guidance about how your specific circumstances may affect your case.

It may be possible to “offset” pension sharing against other assets in the marriage. For example, a wife may be able to keep all of her pension if the imbalance is offset by her husband taking more of the capital from the family home. A judge will only allow “offsetting” in this way if the overall outcome meets both parties’ needs, balancing pension needs with housing needs and income needs.

It may be necessary to have a pensions actuary prepare a report, to show what share would provide equality of income on retirement, and what is fair in terms of “offsetting”. Your Family Lawyer will be able to advise you on your best options for pension sharing.

For more information, please contact us.

Financial Abuse and Lasting Powers Of Attorney

In 2018 it was reported in the Law Society Gazette that investigations into the actions of attorneys and deputies appointed under the Lasting Power of Attorney (LPA) procedure had soared by more than 40% in the previous year. According to figures from the Office of the Public Guardian (OPG) 1,729 investigations into the actions of attorneys and deputies were carried out in the 2017/18 financial year- up from 1,119 the previous year. The figures were published after a Freedom of Information request and led to a call for more education about what people can and cannot do under a power of attorney.

A Lasting Power of Attorney is a legal document (“LPA”) that lets an individual (known as “the donor”) appoint one or more people (known as “attorneys”) to help them make decisions or to make decisions on their behalf.

What Are the Two Types of LPA?

1. Property and financial affairs, and

2. Health and welfare.

This article relates primarily to property and financial affairs.

The donor has to be 18 or over and have mental capacity when they make their LPA. The attorney needs to be over 18. They could be a relative, friend, professional or partner. Choosing an appropriate attorney is extremely important because the LPA gives them power to make decisions about the donor’s money and property, including the donor’s bank/building society accounts and property/investments. The donor must be able to trust the attorney to make decisions in their best interests.

Sadly, not all attorneys do act in the best interests of the donor, whether through their own ignorance of the rules governing LPAs, or because of deliberate financial abuse. In both cases, their actions usually affect elderly and/or vulnerable donors, and can also sometimes have implications for others.

What Are the Rules for an Attorney?

There are strict rules relating to what an attorney is able to do with the donor’s money and other assets under an LPA. The most important principle is that the attorney must act in the best interests of the donor at all times.

An attorney must generally keep the donor’s finances separate to his own. The attorney can use the donor’s money for the following purposes only:

1. To look after the donor’s home and buy anything they need day to day, for example, food, and

2. They can spend reasonable amounts of money on gifts or donations.

There are strict limits on gift giving. An attorney can spend money on:

  • Gifts to a donor’s friend, family or acquaintance on occasions when they would normally make such gifts, for example, birthdays and Christmas, and
  • Donations to a charity the donor would not object to, for example, a charity they have donated to before.

For any other type of gift or donation the attorney must make an application to the Court of Protection, even if the donor has given them before. These include: letting someone live in the donor’s property without paying market rent (anything they pay below the market rate is a gift); interest free loans (the lack of interest is a gift), or selling the donor’s home for less than the market value.

It is essential that the gift is proportionate to the size of the donor’s estate, i.e. it should be comfortably within what the donor can afford. Relevant considerations will include the following:

  • Did the donor used to give gifts of this value when they had mental capacity?
  • Would the gift affect the donor’s ability to meet their living expenses, including care costs, now and in the future?
  • Will the donor have enough funds for the remainder of their life?
  • Does the gift reflect what the donor has said they want to leave people in their will?

If the donor has mental capacity, they should decide whether to give a gift. If an attorney is unsure whether the donor does have capacity to make a gift, they could arrange a mental capacity assessment by a GP or psychiatrist to find out whether the donor has capacity to make their own decisions. This may be particularly important when deciding to give gifts of some value. The OPG may ask what steps the attorney took to establish whether the donor had mental capacity.

Conflict of Interest

An attorney must not take advantage or gain personal benefit from their position. A potential conflict of interest could arise for the attorney, for example, if arranging a loan to himself from the donor, which will also necessitate an application to the Court of Protection.

If the attorney is buying and selling property he will need to obtain legal advice if he is selling the donor’s property for less than the market value, or they want to buy the property themselves, or they are giving it to someone else.

Attorneys cannot give the donor’s assets away as gifts, or spend their money on gifts, to avoid care home fees, or so that they qualify for state benefits. This is known as “deprivation of assets”.

If an attorney gives a gift on the donor’s behalf that is not of reasonable value they could be breaking the law.

It is important for an attorney to keep records, including about any gifts that they make on behalf of the donor, and to document their actions and decisions.

Powers of the OPG include: launching an investigation; giving the attorney a warning; asking the attorney to pay back money or return gifts; applying to the court to have the attorney removed, and reporting the attorney to the police or other organisations. Abusing your position as attorney might amount to a fraud.

Possible ways of trying to combat financial abuse by an attorney could include contacting the OPG if financial abuse is suspected. The OPG may launch an investigation. Frequently, however, possible financial abuse only comes to light after the donor’s death, in which case it may well fall to the donor’s executor to investigate the attorney’s actions and, if necessary, take appropriate action to try to recover monies on behalf of the deceased’s estate. It is not just the donor who may be impacted by any financial abuse on the part of his attorney, but also the beneficiaries of his estate, who may find that their inheritance has been significantly reduced as a result of the attorney’s wrongful actions.

For useful and practical guidance relating to LPAs and the rules relating to attorneys, click here.

Planning for the Future: Reforms to Watch Out For

With less than a month left to respond to the consultation on the Planning for the Future White Paper, now is a good time as any to remind ourselves of the major proposals for change and their practical implications.

The Current System

At the core of the current system is the principle that planning permissions should be decided in accordance with local planning policies, contained in local plans and other development planning documents, and material planning considerations.

Planning applications are usually decided by planning committees or senior planning officers, depending on the size of the development. When determining planning applications, planning committees have the benefit of officer’s reports which contain a technical planning assessment of the application and a recommendation of what the committee’s decision should be.

Members of the public, government departments and bodies, as well as various interest groups, have a right to make their views known, through consultation and representations when local plans are being made and individual planning applications are being decided. Planning determinations can be subjective and committee members, being elected councillors, can take into account the concerns of their electorate as long as they relate to relevant planning considerations. Therefore committee members can, and frequently do, deviate from their officer’s recommendations as to whether an application should be approved or rejected.

Unsuccessful planning applicants can appeal decisions to the Secretary of State for Housing, Local Government and Communities. Appeals are administered by the planning inspectorate known as PINS.

Development often creates need, in terms of infrastructure and this is met by developer contributions by way of Community Infrastructure Levies or infrastructure agreements – the most common of these are Section 106 Agreements, named after the same section in the Town and Country Planning Act 1990.

There is so much more to the planning system but the above should help people read the government’s reforms in context.

Here are seven proposed changes everyone should be aware of:

1 Rules Based System

The paper proposes a rules-based system whereby, the authority’s area will be divided up in the local plans into areas of growth, renewal or restriction. In growth areas, specific types of development will benefit from automatic outline planning permissions, which is an approval of the principle of the development. Developers of land in growth areas will only have to apply for approval of the detail of the development.

In renewal areas, developers will still have to apply for planning permission but will benefit from an assumption that suitable development, as set out in the local plan, will be approved. Also, if proposals in renewal areas comply with design guides and other criteria, they too could benefit from automatic or fast-track consents.

Development will still be restricted in areas such as the Green Belt, Areas of Outstanding Natural Beauty, conservation areas, local wildlife sites, areas of significant flooding risk and important areas of green space which could include gardens.

Currently local plans contain allocations as well as general policies on how to determine planning applications. The main difference with these proposals is the availability of automatic outline permissions for growth areas. The content of local plans will be limited to designations and standards specific to those designations while general development management provisions will be contained in national policy and guidance.

It is therefore crucial that everyone has a chance to participate in the local plan process as they will not be able to debate the principle of development at application stage in growth areas, and this is recognised by the government in the paper.

2 Local Plans

The government also wants to simplify and streamline the plan-making processes. This includes subjecting draft local plans to a single test of soundness instead of the current legal and planning tests and simplifying the environmental assessment procedures.

The paper outlines a five-stage process which is supposed to lead to the plans being adopted in 30 months instead of the usual up to five years. The paper also debates abolishing the right to be heard on the local plan and the possibility for Councils to assess plans themselves subject to auditing processes by PINS.

Local plans are proposed to be produced on a standardised digital model which will include an interactive web-based plan where people can search an area to find out what development is proposed within.

The obvious point is how the government factors increased engagement in the local plan into a more streamlined process.

3 Decision Making

The changes are geared towards dealing with planning applications more quickly and efficiently. Planning permissions have to be determined within certain statutory time limits. The government wants to curtail the right to extend those time limits by agreement, as is frequently the practice now.

The government also somehow wants to “integrate” the submission of planning applications with the validation process although it is not clear what they really want to do. Planning applications are validated when the authority has received all the information it needs to make a planning decision and the clock starts ticking in respect of the statutory time limit. It is unclear whether the intention is for the statutory time period to start when applications are submitted even if the information received is insufficient to make a decision.

The government is also considering whether applicants should receive a refund of their application fee if the applications are recommended for approval by officers, rejected by committee and successful at appeal. This would be a way of deterring committees from side-lining planning considerations in favour of the public views.

Other changes include reducing the amount of information received for major applications and expedited processes for routine and sympathetic changes to listed buildings and other historical assets.

4 Consultation

The government seeks to increase the level of consultation and public participation in local plans while minimising disruption caused by objections to planning applications. The proposals include a switch to digital methods of consultation. This will for instance, include a digital template for planning notices.

5 Digitally Driven

The government will support the use of digital tools for publicising applications and local plans. The aim is to make it easier for people to understand, using visual and digital tools, the impact of proposed development in their area and for them to give their views through social media and other digital methods. Local plans will be produced with a standardised digital model. The government also wants to make sure that all planning information is available online.

6 Developer Contributions and Affordable Housing

The government intends to replace the Community Infrastructure Levy and Section 106 Agreements with a new national Infrastructure Levy. Section 106 Agreements are seen to be complicated and uncertain since each agreement has to be negotiated between the developer and the authority in circumstances where every authority has slightly different rules. The Community Infrastructure Levy is more standardised but is dependant on an individual authority deciding to use it and is also complex in terms of the legislation governing it.

This new levy will be a uniform national rate set for development above a certain level. The aim is for it to be more user-friendly as the authority will not have to prove a direct link between each development and the expenditure of the levy and authorities will be able to borrow against the receipts of future levies to fund infrastructure projects.

The levy will also be wider in that it will apply to some permitted development rights and a proportion will be reserved for other functions of planning departments such as plan-making and enforcement.

It has always been difficult to deal with affordable housing by contributions alone because of the need for covenants to govern how the housing is to be provided on site. One option in the White Paper is for the developer to deliver the affordable housing on site using standardised agreements. The developer’s obligation to pay the levy would then be reduced by the difference between the market price of the house and the discounted price it is sold for to an affordable housing provider. If the on-site affordable housing cannot be sold because of its poor quality, the developer may have to pay the levy anyway. If there is a market fail, the authority could allow the units to revert to market housing and the developer would then have to pay the rest of the levy to the Council for affordable housing.

7 Design

The proposals are centred around a renewed effort to increase the importance of design and to generate development which is ‘beautiful’ as opposed to just being not harmful. On a national level, the government wants to produce a national design code, building on the design guide which they published in October 2019, as well as a revised manual for streets.

Local authorities will be required to produce design codes which will be binding on planning decision makers. Each planning authority will be expected to have a chief officer for design and place making. Design guidance will be required to be prepared locally with community involvement in order for them to be binding on decision makers. Where there are no local design codes, the national design code will be used for decision making.

From a development control perspective, there will be a "fast track for beauty” which is to be implemented in three ways. Firstly, the NPPF will state that compliance with the design code should lead to a swift approval. Compliance with local design codes could be a condition of a permission in principle. Finally, certain permitted development rights will be linked with compliance with design codes.

Paying for It All

The proposals include allowing a small proportion of the income derived from development contributions to cover overall planning costs including the preparation and review of local plans, design codes and enforcement activities.

The government also recognises that though it wants the majority of the new planning costs to be funded by landowners and developers, good planning also benefits the general public and therefore some of the reforms can be funded by general taxation.

Alternatives

It should be noted that many of the above proposals come with less radical alternatives.

Summary

It is difficult to deny that many parts of the planning system are unpredictable and complex. However, part of the reason for that is that local democracy is built into the system. Another reason is the inevitable tension of building enough houses and understanding the desire of local people to reject development which they feel impinges on their amenities.

Local plans have for a long time had policies stating what development goes in certain places, so the designations of sites is not exactly new. What is a shift is the fact that those designations will be more determinative. At the moment, the general test is to go along with the development plan unless material considerations indicate otherwise.

A significant part of the government’s task in implementing these reforms is to maximise engagement of local people as well as stakeholders in the local plan process and balance that against their ambitions to streamline the process.

In my view, this will require maximising non-digital as well as digital methods of consultations as people should not be excluded, based on their ability or desire, to access certain technologies.

Resourcing is an important issue in light of reduced funding to local authorities. Although streamlining the system may make it more cost-effective in the long run, the changes will need an initial boost in terms of staff and funding. It is reassuring that this is recognised by the government.

Whether you are a voluntary, developer, landowner or member of the public, everyone is affected by planning so there is still time to make your views known! At Lanyon Bowdler, we have the expertise to help you make sense of the rules, current or proposed, and to assist you in engaging the planning system.

New Coronavirus Regulations - What Employers Need to Know

The Health Protection (Coronavirus Restrictions) (Self-Isolation) (England) Regulations 2020 came into force in England on 28 September 2020. They make certain failures in relation to self-isolation criminal offences.

The focus of initial reporting has been on the fact that individuals can be fined if they do not self-isolate following a positive test result for Covid-19, or if they are instructed by NHS Test and Trace (but not via the NHS Covid-19 smartphone app) to self-isolate because they have had close contact with someone who has had a positive test result. Also, if a person tests positive for Covid-19, it will be an offence to knowingly provide false information about their close contacts to NHS Test and Trace. Failure to comply with these requirements may result in a fine of up to £10,000.

Employers should also note, however, that (under regulation 7) it will be an offence for them to knowingly permit a worker, including an agency worker, who

  • has tested positive for Covid-19;
  • has been notified by that they have come into close contact with a person has tested positive for Covid-19; or
  • is required to self-isolate upon entry to the UK

to work, other than at home. Any employer who fails to do so will face a fine, starting at £1,000.

There is also an obligation (under regulation 8) on workers to tell their employer that they are self-isolating in such circumstances.

Self-isolating agency workers are required (under regulation 9) to inform either their agency, the principal (i.e. the party with who they are placed to provide services) or, if they are employed, their employer of the requirement on them to self-isolate under the new regulations. The regulations require whoever has received such a notification to pass the information on to the other parties.

Employers in England should remain mindful of the wider public health guidance that applies in England in respect of self-isolation from time to time; and, notwithstanding that (at least for the time being) there is no equivalent of the new regulations in Wales, employers in Wales should be mindful of public health guidance that applies in Wales.

It is an employer's duty to protect the health, safety and welfare of their employees and other people who might be affected by their business; and employers must do whatever is reasonably practicable to achieve this. If an employer knowingly allows any individual to attend work during a period when they should be self-isolating in accordance with public health guidance it may be in breach of that duty, even if it is not a criminal offence. Suspension may still be an option, but employers should consider whether they have a right to suspend in these circumstances. In the absence of an express contractual right to suspend, legal advice should be sought.

The Job Support Scheme

HM Treasury has published a factsheet to explain how the new Job Support Scheme, that was announced by the Chancellor of the Exchequer on 24 September, will work.

The new scheme will replace the Coronavirus Job Retention Scheme (”CJRS”) after that ends on 31 October, and will run for 6 months from 1 November.

Under the new scheme, employers will continue to pay employees for time worked but the cost of hours not worked will be split between the employer, the Government (through wage support) and the employee (through a wage reduction). Employers are to be liable for all employer’s national insurance contributions and pension contributions, including on the element of the wages funded by the State.

The Government will pay a third of hours not worked up to a cap of £697.92 per month, with the employer also contributing a third. This will mean that employees will receive 77% of their normal wages, where the Government contribution has not been capped.

The factsheet states “Our expectation is that employers cannot top up their employees’ wages above the two-thirds contribution to hours not worked at their own expense”. It seems odd that employers will be prohibited from making higher payments to employees at their own expense if they are to access the scheme, so query whether this comment was intentional and, in any event, whether it will stand.

The scheme will only apply in respect of employees who are working at least 33% of their usual hours and who were on the employer’s PAYE payroll on or before 23 September. This means a Real Time Information (“RTI”) submission notifying payment to that employee to HMRC must have been made on or before 23 September 2020. Employees will be able to go on and off the scheme and do not always have to be working the same pattern, but each short-time working arrangement must cover a minimum period of 7 days.

Eligible employers will be able to use the scheme irrespective of whether they have previously furloughed employees under the CJRS. Employers who have utilised the CJRS will still be able to claim the Job Retention Bonus in respect of employees who are subject to the new scheme, if the eligibility criteria are met.

Unlike the CJRS, the new scheme will not be open to all employers. All small and medium sized enterprises (“SMEs”), usually defined as businesses with up to 250 employees, will be able to access the scheme, but larger employers will only be eligible if their turnover has reduced as a result of the pandemic. Further, larger employers who access the scheme will be prohibited from paying dividends to shareholders. This goes some way to addressing a criticism of the CJRS that it benefited some businesses which continued to generate strong profits.

A further criticism of the CJRS, from some quarters, was that it can be utilised in respect of employees who are being made redundant in order to fund notice pay. In contrast, employers will not be able to give employees notice of redundancy while claiming under the new scheme.

The factsheet makes the point that “Employers must agree the new short-time working arrangements with their staff, make any changes to the employment contract by agreement, and notify the employee in writing. This agreement must be made available to HMRC on request”. Some employers will already have short-time working provisions in place upon which they will be able to rely in order to apply the scheme – but most will not. Those who do not already have short-time working provisions who wish to utilise the scheme are encouraged to obtain our advice in order to protect against such claims as for failure to consult collectively (where 20+ employees are affected at one establishment), breach of contract, unlawful deduction from wages and unfair dismissal.

The factsheet states that more detailed guidance will be published shortly.

Training Contract Selection

After all the late nights, coffee and frantic searches of your workshop notes trying to recall the cost consequences of failing to beat a defendant’s Part 36 offer, the obligatory LinkedIn graduation posts, you finally wave farewell to the academic period of your legal career. Then, if you’re anything like me, the search to secure your training contract begins.

You hunt for the upcoming application deadlines, subscribe to all the latest commercial awareness newsletters you can find and join the ranks of your fellow graduates in the search to find the golden ticket that is your training contract.

The Application

When I began applying to firms, I soon found it was the norm to be subjected to abstract assessments concocted by Messrs Watson Glaser. I was presented with endless multiple choices to assess my verbal and logical reasoning, each one an attempt to obliquely determine my suitability through a series of ones and zeroes. I began to see my career in law as a never ending list of lettered and numbered choices and my future employers as statisticians, reviewing every remark I made and running it through a system which processed my character and whether it was ‘optimal’, according to current industry trends.

That was until I applied to Lanyon Bowdler. For the first time in my search for a training contract I found a firm that was interested in me. Rather than being asked what order I would respond to events in a hypothetical situation, they wanted to know who I was and what I could do. I sat down and, for what felt like the first time, prepared my application based on my background and skillset.

The Interview

To my excitement, I received an invitation for an interview. I say ‘interview’ but the whole process felt like a chat with genuine people who wanted to get to know you. I was fortunate enough to be asked back for a second interview where my practical knowledge of the law was assessed, although not through abstract scenarios which were run through an algorithm and scored as a percentage – as had been my experience before – but through talking about a case study with real lawyers who had years of experience and who understood there was more than one answer to a situation.

As a mature candidate, having completed my LPC at 32 years old, I had a great deal of practical experience on my CV, which the interviewing partners were keen to discuss and which would not necessarily have translated through the impersonal approach adopted by a majority of firms.

Lanyon Bowdler’s Approach

The personal approach that LB takes in selecting its trainees is its greatest strength. You meet the partners early on; they talk to you, on a personal level, and see what sort of candidate you are for themselves. I remember, during my first interview, being told the reason the firm takes this approach is because they aren’t picking faceless trainees who just check boxes and don’t have any stake in the work they perform, they’re choosing future associates and partners.

I’ve found this ethos to be true in the work I had the privilege of completing during my training period. From my first seat I was involved in high level work which, admittedly, at first was daunting but I always had a direct line to my supervising partner and other experienced solicitors, so I was never put in a situation where I was out of my depth.

The team at LB wants to develop you to be the best solicitor you can. I found, during my training, that I was exposed to all aspects of life in practice; I was encouraged to take part in networking and business development early on and discovered that life in practice is more than just drafting, note taking and research. I was taught about the importance of making connections with clients and seeking out new business; not to just rest on your laurels and expect work to come to you.

At every point in my training I felt as if I were put at the centre of decisions, I was able to meet with partners regularly and have a say in which department I would gain experience in next. I felt I was able to shape my training to suit the career I wanted, and was actively encouraged by the firm to do so.

After all the time, effort and care which had gone into my training I felt I was ready to take on life as a newly qualified solicitor and was delighted to be given the opportunity to do so as a dispute resolution solicitor at Lanyon Bowdler.

For more information, please visit our training contracts page.

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