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Increases to Statutory Payments

National Minimum Wage

From 1 April 2023, the National Living Wage will increase from £9.50 to £10.42 an hour.

National Minimum Wage rates for those under the age of 23 and first year apprentices will increase as follows:

  • Workers aged 21 to 22: £10.18 (up from £9.18)
  • Workers aged 18 to 20: £7.49 (up from £6.83)
  • Workers aged 16 to 17: £5.28 (up from £4.81)
  • Apprentices in their first year: £5.28 (up from £4.81)

The accommodation offset rate increased from £8.70 to £9.10.

Agricultural Minimum Wage in Wales

See our separate blog on the Agricultural Wages (Wales) Order 2023 here.

Family-related payments

From 2 April, Statutory Maternity Pay, Statutory Paternity Pay, Statutory Adoption Pay, Statutory Shared Parental Pay and Statutory Parental Bereavement Pay will increase from £156.66 to £172.48 per week (or, if lower, 90% of an employee’s average weekly earnings).

Statutory Sick Pay (SSP)

From 6 April, SSP will increase from £99.35 to £109.40 per week.

Statutory guarantee pay

During periods of lay-off or short-time working an employee may be entitled to a statutory guarantee payment, which is calculated by multiplying the number of normal working hours on the workless day by the guaranteed hourly rate. With effect from 6 April, the maximum guarantee payment will increase to £35.00 per day (subject to a maximum of 5 days or £175 in any 3 months) from £31.00 per day.

For further details relating to the law around and relating to the above payments and limits, please contact me or a member of the Employment team.

Cerebral Palsy Awareness Month

March is National Cerebral Palsy Awareness Month. This initiative began in 2006 to try and commence changes in education, healthcare and society generally by raising awareness to ensure that those with this condition have access to an increasing number of opportunities. Despite the challenges those with cerebral palsy face, they are capable of achieving incredible things, thus highlighting the importance of acknowledging their abilities rather than just their disabilities.

Last month, Spanish runner Alex Roca who has cerebral palsy managed to complete the Barcelona Marathon. This marked a moment in history as he became the first person with 76% disability to ever complete the 26.2 mile distance. However, this was not the first time Alex had made history, as in in 2019 he became the first person with cerebral palsy to finish Garmin’s Titan Desert race, a six-day multiple stage mountain bike race through the Moroccan desert between the Atlas Mountains and Sahara Desert.

What is cerebral palsy?

Cerebral palsy is a neurological condition that affects muscles, movements and mobility. Those with the condition can have varying symptoms and for some their needs can be profound including being unable to control movement, feed themselves, or see and hear properly.

Cerebral palsy arising from negligence:

The condition can be caused by medical negligence. For instance, errors made during birth can lead to hypoxic injury from lack of oxygen and result in brain damage for the baby. Additionally, it can be caused by undiagnosed issues in pregnancy, such as infection, or failures in treatment after birth during the neonatal period.

Treatment for cerebral palsy:

Despite there currently being no cure for the condition, multiple treatments are available to those with cerebral palsy to try and enable them to be as active and independent as possible.

Treatments include:

  • Physiotherapy – techniques such as exercise and stretching to help maintain physical ability and hopefully improve movement problems.
  • Speech and Language Therapy – to help with speech and communication, and swallowing difficulties.
  • Occupational Therapy – where a therapist identifies problems that you or your child have carrying out everyday tasks, and suggests ways to make these easier.
  • Music Therapy – sessions can focus on emotional, social, functional or neuro-rehabilitation goals and can develop confidence, awareness, independence and communication skills.

Further to this, continuous developments in technologies including robotic technology and other innovations have the potential to dramatically change the future for those with the condition.

During the Barcelona Marathon, Alex Roca inspired many by stating that “the limit is up to you, and if you want to achieve an objective, whatever difficulties you have, with attitude, willpower, perseverance and resilience, you can achieve everything you propose.”

With advancing technologies and treatments alongside increasing awareness of cerebral palsy, the landscape for those with the condition continues to look brighter.

If you have any concerns about your child’s development or if you are coming to terms with a diagnosis of cerebral palsy, alongside concerns about the medical care which you and your child received, please get in touch with a member of our team at info@lblaw.co.uk.

Support is also offered by Scope which is one of the main UK charities for people with cerebral palsy and their families.

Effective Debt Recovery

Maximising chances of recovering debt before engaging a specialist

In 2023, many businesses will be looking to reduce their outgoing costs in order to manage the mounting challenges that have presented themselves over the last three years. You may be tempted to put off attempting to recover your debts in the hopes of saving costs and resources, however, there are a few reasons why this may not be the best course of action;

  • The clock is ticking: The Limitation Act 1980 places a six year time limit on issuing proceedings, starting from the day the debt became overdue. Once the six year period has passed you will likely be barred from recovering the sums due to you.
  • Debtors pay sooner if they are engaged earlier: Debtors will often pay their debts quicker if recovery is attempted sooner. The longer you wait to recover the sums owed to you, the longer it takes to recover them. Debt recovery is only as good as the debtors financial circumstances will allow, and the longer you wait, the worse their circumstances can become, making recovery less likely.
  • Evasive debtors: The longer you wait to recover your debt, the more likely it will be that the debtor will have moved from the address you have on file for them. Tracking the debtor down may be a further cost to your business that may not have been necessary if the debt was pursued sooner.

So, how can you maximise the chances of recovery before engaging a debt recovery specialist? Here are our five top tips:

1. Have an effective credit control process in place so you are alerted to your overdue debts as soon as possible.

2. Know your debtor – having the full name of your client and an up to date address is fundamental. Information about employment status, and assets the debtor may own can also be helpful when it comes to debt recovery, especially if it comes to enforcing the debt.

3. Make your payment terms clear on your invoices and in your terms and conditions.

4. Get the agreement in writing. Verbal agreements can be enforceable, but a written agreement is much better evidence if court proceedings are necessary later on down the line.

5. Attempt to contact the debtor as soon as the invoice becomes overdue, your client may have simply misplaced the invoice, or, if they are having some cash-flow issues, you may be able to come to a repayment agreement with the debtor.

If you have attempted to speak with the debtor, but they are not co-operating with you, it may be time to consider sending the debtor a letter of claim.

A letter of claim is the first stage of the legal process to recover a debt. You may have already sent the debtor a demand letter and are now looking at issuing court proceedings. However, in order to successfully claim a debt, it is vital that you are compliant with any pre-action protocols that relate to your debt. There are different protocols for different kinds of debtors and industries, so knowing which protocol applies to your debt is important. Getting this incorrect could detrimentally affect the success of your claim and you may even be required to go back to step one to rectify the defective letter, costing further time and money.

How can the Debt Recovery Unit at Lanyon Bowdler help you?

We handle all manner of undisputed debt claims, including but not limited to; construction and engineering debts, Consumer Credit Act debts, Late Payment Act debts, and rent arrears.

Our friendly and approachable team will work with you to progress your claim through each stage, from sending a letter of claim to your debtor, all the way through to enforcement. We will explain in plain terms, what the next steps of the process are, providing you with price estimates throughout, giving you clarity on the cost of pursuing your debts.

For further information about our debt recovery services, please contact our Debt Recovery Team on 01952 211024 or by emailing: debtsolve@lblaw.co.uk.

The Probate Process: What Farming Families Need To Look Out For

Most farming families will encounter the probate process following the death of someone involved in the business.

Understanding the process is important for anyone passing on the assets of a farming business as it involves applying for valuable Inheritance Tax (IHT) reliefs, such as Agricultural Property Relief (APR) and Business Property Relief (BPR).

Usually, executors will need a grant of probate before they are legally allowed to distribute or transfer any assets to the beneficiaries in accordance with the deceased’s will or intestacy.

What is probate?

Probate is the legal and financial process of proving a will is valid and then dealing with the property and possessions of a deceased individual.

The grant of probate is the document produced by the Probate Registry at the end of that process and is effectively confirmation that the executors have the authority to deal with the estate and pass on the assets to the beneficiaries.

Most assets and bank accounts will be frozen at the point of death until the executors have a grant of probate.

Who applies for probate?

Assuming the deceased has left a will, then it will be the responsibility of the executors appointed in the will to apply for probate.

Where a farming business is involved, most people will ask their solicitor and/or accountant to assist them in dealing with the process.

If there is no will in place, the same “probate” process is followed, but rather than applying for a grant of probate, the intestacy rules set out who will inherit the estate and therefore who will be entitled to apply for grant of letters of administration, rather than the grant of probate.

This person will become the administrator of the estate (as opposed to an executor) and is usually the closest living relative entitled to the estate through the rules of intestacy.

Cost of probate

The Probate Registry’s application fee is £273.00 plus £1.50 per additional copy of the grant.

The total cost of the probate process will vary depending on the professional input required by solicitors, accountants and surveyors. This will also depend on the size of the estate and the nature of the assets comprising the estate.

How long does the probate process take?

How long the process takes will depend entirely on the size and complexity of the estate.

It is advised to act promptly when dealing with an estate, as any IHT due must be paid by the end of the sixth month after the individual’s death.

To claim APR and BPR, a full inheritance tax account is required which reports the total value of the estate to HMRC and whether there is any IHT due. The full inheritance tax account must be submitted before 12 months after the date of death.

It can take anywhere between two weeks to six months for the Probate Registry to turn around an application. This depends on the complexity of the estate and whether HMRC need to raise any enquiries about the availability of any of the reliefs.

Keys steps when applying for probate

  • Registering the death - the first step for family members will be to make sure the death has been registered and to obtain the official death certificate. The registry office will usually provide a useful information pack that gives the details of the “Tell Us Once” notification service. This service allows a death to be reported to most government organisations including the DVLA, HRMC, the Department for Work and Pensions, Passport Office and the local council.
  • Gathering information - the executors will need to know the composition and value of the estate and any liabilities to apply for the grant of probate. The solicitor and accountant are likely to want to see as much information as possible about the deceased’s affairs including bank statements, savings, investments, details of any life assurance policies and mortgages. Details of any gifts made by the deceased in the seven years prior to the date of death will also be required. The executors will need full details of the land and property within the estate and anything that could affect eligibility for APR. This could be the occupation of land/properties, whether/how the land is farmed and whether there are any tenancies or licences in place. HMRC can request further information before providing clearance, so the more information the solicitor has at their disposal, the quicker their questions can be dealt with.
  • Valuation of land/property - a full formal valuation is advisable for all land or property in an estate and essential where inheritance tax is due. A solicitor will instruct a qualified surveyor to carry out the valuation, which forms the basis of the information submitted to HMRC. A copy of the valuation will also be submitted. The valuation will be taken as at the date of death. A full formal valuation will help to establish whether APR needs to be applied for, and if so, whether it would be successful.

Avoiding common pitfalls

  • Check the will -executors should ensure that they have the most up to date will by making enquiries with the deceased’s solicitor.
  • Failure to report assets or undervaluing assets - it is important that executors identify all assets within the estate. It is also important that the correct valuations are submitted. Having to re-submit information will cause delays.
  • Tracing beneficiaries - where there is no will, and the estate falls to intestacy, it could take some time to identify potential beneficiaries. This depends on the deceased and their family. A genealogist would need to be instructed to complete a family tree which can take some months if limited information is presented.
  • No partnership agreement - where there is a partnership and no written partnership agreement in place, on the death of one of the partners, the Partnership Act 1890 would prevail. Unfortunately, the act dictates that the partnership would have to be dissolved. This can cause issues for farming families who want to continue to farm in partnership. It is therefore highly recommended that all partnerships have a written partnership agreement to explain exactly what would happen on the death of a partner.

Deed of variation

A deed of variation can be entered into within two years of an individual’s death to change the terms of a will. The assets will be treated for IHT and CGT purposes as though they were left by the deceased to the new beneficiary. Any beneficiary giving up their benefit would need to sign the document.

A deed of variation can be entered into even if the deceased did not leave a will.

Beneficiaries may decide to enter into a deed of variation for various reasons, including:

  • To reduce the amount of inheritance tax (IHT) or capital gains tax (CGT) payable;
  • To provide for someone who was not included in the will;
  • To divert inheritance into a trust for a group of beneficiaries.

Mental Capacity: Accessing Accounts Without a Court Order – The End Of The Road?

The government has just published its response to the small payments scheme consultation.

The consultation, which ran between November 2021 and January 2022, invited responses to a potential “small payments scheme”. The scheme would allow third parties legal access to limited funds held in bank and building society accounts by persons lacking capacity, without the need to obtain legal authority from the Court of Protection (CoP) under the Mental Capacity Act 2005.

The proposed scheme followed concerns from financial services and those representing older people and those with disabilities, that the process for obtaining a CoP order where someone lacks capacity is disproportionate in terms of complexity and delay, for accessing small funds or arranging simple payments. Concerns had also been raised by the parents and carers of children and young adults who lack capacity about the challenges of accessing matured Child Trust Funds on their behalf.

The proposals under the scheme would:

  • permit payments from a single account, limited for a six month period
  • allow payments up to a total sum of £2,500 (an amount which is sufficient to include the majority of matured Child Trust Funds)
  • permit a single extension to the access period of a further six months, but only if the value of £2,500 has not been reached
  • prevent access to the same account or other accounts belonging to the individual by the same or a different applicant
  • be run by financial services firms (such as banks, building societies and e-money institutions), allowing payments or withdrawals primarily from cash-based accounts
  • grant access to someone who could prove their suitability, rather than just family members
  • ask applicants to consider whether a CoP Deputyship was necessary or appropriate for longer-term management of accounts, and encourage them to apply to the court as part of the process

The published consultation outcome identified “operational barriers” with the existing system (principally delays in the CoP) and a lack of awareness of the Mental Capacity Act 2005 as two significant issues.

However, the published consultation outcome provided no clear consensus regarding the inception of such a scheme, concluding:

“The Ministry of Justice believes that the CoP digital application process and raising awareness of the MCA will address the root cause of the problem (operational barriers and lack of awareness) and resolve many of the challenges raised by respondents to the consultation. As a result, the Ministry of Justice will focus on addressing the key barriers to accessing payments, and not seek to develop a small payments scheme. Taking these measures will ensure that we protect the legal principle that an adult must have proper legal authority to access or deal with property belonging to another adult, while ensuring that those who need to obtain that legal authority can do so in a straightforward and timely way”.

The response refers to a new CoP digital application process that has been underway for only a matter of weeks. The extent to which it will remove the concerns of care givers concerning swift, easy access to low value accounts and Child Trust Funds remains to be seen.

Head Injuries in Sport

Despite backing from various high-profile organisations such as The Premier League, the Football Association and FIFPRO (the world players’ union), the International Football Association Board (IFAB) have decided, at their recent Annual Business Meeting, against a trial of temporary concussion substitutes in the sport.

A ‘concussion’ is a type of traumatic brain injury caused by a blow to the head or by a hit to the body that causes the brain to shake back and forth inside the skull, causing damage. Whilst their effects can often be mild and cause no long-term damage to the brain, concussions can cause temporary disruption to brain function that can last for weeks. If repeated head injuries are sustained, this can lead to various irreversible neurological impairments, including early onset dementia, CTE (chronic traumatic encephalopathy), post-concussion syndrome, epilepsy, Parkinson's disease and motor neurone disease.

As the governing bodies in charge of rulemaking in ‘The Beautiful Game’, IFAB and FIFA owe a duty of care to keep participants safe from undue harm as far as is reasonably possible. This is particularly relevant when it comes to head injuries. In recent years we have seen personal injury litigation brought against governing bodies in other sports, such as the NFL in American Football and the RFU, WRU and World Rugby in Rugby Union, due to their failure to advise players of the risks of head injury and failure to ensure that the rules of the game kept them safe from harm.

Under the current rules in professional football, two permanent concussion substitutes are allowed per game. When a potential concussion injury has occurred, the team’s medical staff are brought onto the pitch to undertake an assessment. The player is then either cleared to carry on or taken off the pitch and replaced by a substitute for the remainder of the game. Under the new proposals, the player would be removed from the field for 10 to 15 minutes for the medical assessment to take place in a private environment such as a changing room, with a substitute replacing the player for that assessment period. Once the assessment is complete, the player would either be allowed back onto the field, or, if they have displayed symptoms of concussion, the substitution would become permanent for the remainder of the game.

The issue with the current response in football to concussion-based injuries was highlighted during the Qatar World Cup in 2022, with a number of high-profile incidents emphasising the lack of understanding of the seriousness of the issue. For example, in England’s Group B opener in Qatar, Iranian goalkeeper Alireza Beiranvand was substituted off 10 minutes after a clash of heads with his own defender. Beiranvand had tried to continue playing after the incident but ultimately left the pitch on a stretcher and had to be replaced. The general attitude to concussion injuries in professional football sadly appears to remain ‘play on and see how it goes’.

In a statement following their Annual Business Meeting on 18 January 2023, IFAB said:

“The Board discussed applications received from certain leagues regarding the introduction of a trial with temporary substitutions for actual or suspected concussion, but no consensus was reached. The topic remains under active review, as does the agreement to introduce measures to improve the application of the protocols drawn up for permanent concussion substitutions. The Board indefinitely extended the trial with permanent concussion substitutions.”

Whilst this statement does indicate that further consideration may be given in the future, it is disappointing to see how far football continues to lag behind other sports in its consideration of the dangers of concussion and head injury. We can only hope that these rules are amended in the near future to promote safety and security in the modern game.

For more information in relation to the devastating impact that head injuries in professional sport can have, you can listen to our podcast, The Legal Lounge from Alexander Spanner and Dawn Humphries linked here: Podcast - Head Injuries in Professional Sport

Increases to Employment Tribunal Limits

The Employment Rights (Increase of Limits) Order 2023 has been published, which will give to effect the latest annual increase in tribunal limits.

The key increases are that for dismissals with an effective date of termination on or after 6 April 2023:

• The cap on the value of a week’s pay for certain statutory purposes, such as calculating statutory redundancy pay and basic awards of compensation in unfair dismissal cases, will increase from £571 to £643.

• The maximum compensatory award for unfair dismissal will increase from the lower of 52 weeks’ normal pay and £93,878 to the lower of 52 weeks’ normal pay and £105,707.

For further details relating to the law around and relating to the above payments and limits, please contact me or another member of the Employment team.

Recovering Unpaid Invoices

Here are five reasons why a business should use our professional debt recovery team to recover unpaid invoices.

1. A solicitor’s letter often carries more weight than a demand letter from a company, prompting faster payment.

2. Chasing bad debts early increases the likelihood of receiving payment in full.

3. We will make sure the letter complies with the appropriate pre-action protocol, ensuring that if you do not receive payment, court proceedings can be issued.

4. We can demand payment of any interest due to you under your terms and conditions, and we will calculate the interest sum on your behalf saving you the costs of having internal staff perform these calculations.

5. We can communicate with the debtor on your behalf, or have the debtor contact you directly. Whichever you prefer.

Agricultural Wages in Wales 2023

The Agricultural Wages (Wales) Order 2023 will come into force on 1 April 2023 and will increase the minimum wage rates and allowances for agricultural, horticultural and agri-forestry employees in Wales.

Other changes from previous such orders are as follows:-

  • The definition of "employee” will include agency workers and workers employed by gang masters who may not have a contract of service directly with the employer, as well as directly engaged employees and workers
  • It will be possible for employers and employees to agree a different holiday year than the default 12 month period beginning on 1 October.
  • The calculation of holiday pay for employees with variable hours, and employees with normal hours who work overtime, will be brought into line with the Working Time Regulations 1998. Previously, it was provided simply that holiday pay was to be based on the employee’s average pay over the previous 52 weeks. It will be the case going forward that any weeks in which no remuneration was payable are to be excluded from the 52 week reference period and earlier weeks taken into account, up to a maximum of 104 weeks. The effect of the previous disparity was that an employee in agriculture, horticulture or agri-forestry employees in Wales would be entitled to rely on whichever approach was more favourable to them (i.e. either that under the agricultural wages legislation or that under the Working Time Regulations).

The new rates of pay and other allowances that are payable from 1 April are set out below, with the current rates in brackets.

Grade Rate per hour

A1 - Agricultural Development Worker (16-17 years) £5.28 (£4.81)

A2 - Agricultural Development Worker (18-20 years) £7.49 (£6.83)

A3 - Agricultural Development Worker (21-22 years) £10.23 (£9.18)

A4 - Agricultural Development Worker (23 years+) £10.47 (£9.50)

B1 - Agricultural Worker (16-17 years) £5.28 (£4.81)

B2 - Agricultural Worker (18-20 years) £7.49 (£6.83)

B3 - Agricultural Worker (21-22 years) £10.23 (£9.18)

B4 - Agricultural Worker (23 years+) £10.74 (£9.79)

C – Agricultural Advanced Worker £11.07 (£10.08)

D – Senior Agricultural Worker £12.14 (£11.06)

E – Agricultural Manager £13.32 (£12.13)

Apprentice Year 1 £5.28 (£4.81)

Apprentice Year 2 (aged 16-17) £5.28 (£4.81)

Apprentice Year 2 (aged 18-20) £7.49 (£6.83)

Apprentice Year 2 (aged 21-22) £10.18 (£9.18)

Apprentice Year 2 (aged 23+) £10.42 (£9.50)

Other Allowances

Dog Allowance £9.36 (£8.53) per dog per week

Time Work Allowance £1.78 (£1.62) per hour of night work

Adoption Allowance £73.60 (£67.09) for each child

Accommodation Offset - (House) £1.65 (£1.50) per week

Accommodation Offset - (Other Accommodation) £5.29 (£4.82) per day

The Order can be accessed here.

For further information and advice in relation to employment law specific to the agricultural sector in Wales, please contact me or another member of the Employment team.

Mediation: Choosing a Mediator

Choosing a mediator is an important decision. The mediator will play a crucial role in resolving your dispute. Here are some tips to help you choose the right mediator:

1. Area of expertise: Look for a mediator who has experience and expertise in your area of dispute. For example, if you are dealing with a commercial dispute, choose a mediator with experience in commercial mediation, or if your dispute involves the agricultural sector, look for a mediator with an understanding of farming matters.

2. Reputation: Consider the mediator's reputation and track record. You can ask for references to get a sense of their experience and effectiveness.

3. Neutrality: Choose a neutral mediator. This is essential for maintaining the impartiality and objectivity of the mediation process. One thing to note here, though, is that the fact a mediator has conducted mediations for the firm representing one party in the past doesn’t mean they are not impartial. The fact that one side wants to use the same mediator in another case reflects their view that that mediator was effective and that might make that mediator a good one to choose.

4. Communication skills: Good communication skills are crucial for a mediator to be effective. Look for a mediator who is able to communicate effectively and understand the needs and concerns of both parties.

5. Availability: Make sure the mediator you choose is available and can attend the mediation on the agreed date.

6. Cost: Consider the cost of the mediator, but keep in mind that a more experienced and qualified mediator may be worth the extra expense.

7. Mediation style: Different mediators have different styles, so it's important to choose a mediator whose approach aligns with your needs and goals. For example, some mediators are more facilitative, while others are more directive.

8. Accreditation: Consider choosing a mediator who is accredited by a recognised professional organisation, such as the Centre for Effective Dispute Resolution (CEDR) or the ADR Group.

9. Location: If the mediator needs to be physically present, consider the location and logistics of the mediation.

10. Referral: Ask for referrals from friends, colleagues, or other professionals who have used mediation services.

By considering these factors, you can choose a mediator who is best suited to your needs and the specific needs of your dispute.

Personal Injury Trusts

Many people will not be aware of what a personal injury trust (PI trust) is, but the benefits of having one in place could be invaluable. Whilst a PI trust may not be suitable for everyone, it is something to consider if you are pursuing a claim due to sustaining an injury.

What is a PI Trust?

A PI trust is a type of trust which holds compensation following a successful personal injury claim or insurance policy pay out. It allows the settlor to transfer funds into the trust for the trustees to hold and manage in a way which is suitable for the beneficiary. It is another mechanism which helps people, who have been injured as a result of an accident that wasn’t their fault, to try and put them in as similar position as possible had the injury not occurred.

What is a Settlor?

The settlor is the injured person who is transferring their award into a PI trust.

What is a Beneficiary?

A beneficiary is someone who is entitled to benefit from the assets held within the PI trust. Beneficiaries can vary depending on the type of PI trust you create.

What is a Trustee?

Trustees are individuals who are the legal owners of the assets held within a PI trust. Depending on the type of trust you create, a trustee could also be a beneficiary.

Why should I set up a PI Trust?

When an individual is means tested, for the purposes of means tested benefits or local authority support, their capital is considered which, after a 52 week disregard period, can include compensation from a personal injury award, with some specific exceptions (such as if personal injury funds are managed by a deputy or held within a PI trust). If the award is held within a PI trust then the funds are disregarded by the DWP and local authority, meaning you will be as eligible for means tested benefits or local authority support as you would be without the PI trust.

You do not have to be in receipt of means tested benefits or support at the time of creating your PI trust, but it does mean that should you need them in the future the assets held in the trust, and income arising, can be disregarded.

What funds can be paid in?

A PI trust can only hold funds which have been awarded following a personal injury. This could be interim payments which are payments made before a claim has settled, the final award, which is usually a lump sum upon settling the claim, or periodical payments which are payments made by the defendant on a periodical basis for either a set duration of time or for the injured person’s life time.

It is essential that only funds received from a claim for personal injury make up the trust funds as ‘mixing’ can render the PI trust ineffective. This means that, for example, if you inherited money from a relative you could not transfer that into the trust.

Who should my Trustees be?

In order to effect a trust there must be a minimum of two trustees. A trustee must be over the age of 18, have the relevant mental capacity to act as a trustee and be willing to act as trustee. Depending on the type of trust that you wish to create, the settlor may wish to be a trustee along with a family member or close friend. We always recommend that you appoint someone you trust.

If you do not have someone whom you trust who would be willing to be a trustee, or your affairs are complex, you could also consider appointing a professional trustee.

Trusts are a complex area of law and we always recommend seeking expert legal advice. If you would like to know more about PI trusts and whether you may benefit from creating one, contact our Court of Protection Team who would be happy to assist you.

Happy Valley

After a painful seven year wait, the third season of “Happy Valley” was finally released in January this year. "Happy Valley" is a British crime drama television series. The show is set in the Calder Valley region of West Yorkshire and focuses on Catherine Cawood, a police sergeant in the valley who investigates crimes while grappling with personal issues, including the death of her daughter, Becky, her relationship with her grandson, Ryan, and the release of Ryan’s father, Tommy, from prison. The series has been praised for its strong character development and well-written scripts, and has received numerous awards and nominations.

Happy Valley explores various themes relating to complex family dynamics. From a family lawyer’s perspective, one pertinent issue that arises is that of Parental Responsibility.

Definition of Parental Responsibility

Parental responsibility (PR) is defined as all the rights, duties, powers, responsibilities and authority which a parent legally has in relation to a child. Each person who has PR for a child can generally exercise it on their own in relation to day to day decisions about the child. However, there are certain decisions, such as choosing a school for the child, that require the agreement of all those with PR.

A child’s mother automatically has PR for them and fathers who are married to the mother when the child is born automatically have PR. A child’s father who is not married to the mother can obtain PR by being named on the child’s birth certificate.

PR can also be obtained by one of the following methods:

  • A PR agreement
  • A PR order from the court
  • Appointing a guardian
  • A live with child arrangements order
  • A special guardianship order
  • Adoption

Tommy’s Parental Responsibility

Becky will have automatically had PR for Ryan as his biological mother. Tommy on the other hand will not have automatically PR for Ryan, as he was not married to Becky when Ryan was born. We do not know if Tommy was named on Ryan’s birth certificate, but presumably Becky would have chosen not to do this as Tommy sexually assaulted her and she did not tell him that she was pregnant with his child. It is also therefore very unlikely that Becky would have agreed to enter into a PR agreement with Tommy.

Tommy could apply for a parental responsibility order as Ryan’s biological father if Becky refused to enter into an agreement with him. The court would take into account Tommy’s commitment to Ryan and his intention in seeking the order. The fact that Tommy has been absent for much of Ryan’s life would not automatically mean that no order would be granted, especially as he did not initially know he was Ryan’s father. However, if it is clear that his main motivation in applying for PR is to get back at Catherine, the court would be unlikely to grant him PR.

If Tommy did have PR the only way that this could be removed is by a court order. Case law sets out that the court should only remove PR in ‘exceptional’ circumstances. For example, in the case of Re C (Care: Consultation with Parents Not in Child’s Best Interests) [2005], the court terminated a father’s PR where he was serving an 11 year term of imprisonment for offences against the child. It is very rare for the court to remove a parent’s PR which is reflective of the court’s view that the involvement of both parents in a child’s life will further the child’s welfare.

We see throughout “Happy Valley” that Tommy clearly poses a risk to Ryan. After finding out that Ryan is his child, Tommy starts following him and eventually in the finale of season one he tries to set fire to both of them whilst they are on a boat. This raises significant safeguarding and welfare issues, and it seems clear that Tommy is causing Ryan significant emotional and psychological, and potentially physical, harm. However, it is unlikely that even in this situation the court would order the removal of his PR given that there is such a high threshold.

Catherine’s Parental Responsibility

We do not know if Catherine has PR for Ryan. It is not unusual for grandparents to find themselves in a similar situation to Catherine where they are the primary carers for their grandchildren. Catherine clearly takes her responsibilities of caring for Ryan very seriously and is willing to make sacrifices for his wellbeing, unlike Tommy. Catherine may have no formal arrangement in place in which case she would not have PR. However, this is generally not advisable, especially if there is a difficult parent involved such as Tommy. It is important to have the certainty of a court order.

If Becky appointed Catherine to be Ryan’s guardian in her will or if the court had made an order to that effect, Catherine will have automatically obtained PR for Ryan when Becky died.

If Catherine does not have PR, she could obtain it in one of the following ways:

Catherine could apply for a live with child arrangements order (CAO) which is a court order setting out that Ryan shall live with her and gives her PR. Child arrangements orders are one of the most commonly used orders for grandparents/parents who cannot agree about contact and living arrangements. However, the disadvantage of a CAO is that it would not actually limit Tommy’s ability to exercise his PR, it would just set out that Ryan would have to live with Catherine.

Catherine could apply for a special guardianship order. This would give Catherine enhanced PR as she would be able to overrule Tommy’s PR, if necessary, which would provide her with greater security. Special guardianship orders require the support of the local authority and are generally more appropriate when the child in question is still young.

The final option for Catherine is adoption. Catherine could see this as ideal, as Tommy’s PR would be terminated and Catherine would have certainty that she is Ryan’s legal parent. However, generally the court is of the view that if less extreme measures, such as a special guardianship order, will suffice, then adoption is not necessary. If Tommy has PR and he objects to the adoption this would make adoption even more unlikely.

If you have any questions about parental responsibility, please do not hesitate to contact a member of the family team.

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