June 2023 Newsletter
Kerseys Solicitors June 2023 Newsletter
Just a click or call away for all your legal services needs
Legal Updates
Buying or selling a flat over 5 storeys
Buying a flat is a big investment and even more so now that many flat owners have been hit with higher service charges to cover remedial works revealed by fire assessment reports. The Law Society have provided some helpful guidance to show what to look out for and the questions to ask when purchasing a flat.
Building safety for flat buyers | The Law Society
Lasting Powers of Attorney (“LPAs”)
The sooner the better
LPAs are becoming ever more important documents as they allow people whilst they have the capacity to appoint trusted chosen persons to make property & financial decisions if the circumstances arise where they no longer have capacity. This can include allowing those trusted persons to make life sustaining treatment decisions on your behalf or allowing them to sell your home should you have to sell your property to pay for care fees. (https://www.gov.uk/power-of-attorney)
The acknowledgment of how invaluable LPAs are has recently been covered by the mainstream media with Martin Lewis discussing LPAs on his ‘Money Show Live’ on 14th March 2023. Mr Lewis notes the importance of LPAs by explaining “if you lose your faculties, if you lose your ability to look after yourself mentally, then the question is what happens to your finances? And the truth is, let’s say it’s dementia or an accident or a stroke – severe ones – don’t assume your family can access your money, not even if it’s the money needed to pay for your care.”
As the awareness of LPAs increases, the Office of the Public Guardian (“OPG”), the body which registers LPAs, has noted that they are registering 18,000 more LPAs every month than before the pandemic. Due to this ‘unprecedented demand’ for LPAs (This Money, 2023), the current wait time for an LPA to be registered with the OPG is 20 weeks. If you hold off on organising your LPAs, you could become caught in a scenario where your LPAs are needed but are still with the OPG for registration due to the 20 weeks wait time. Accordingly, the need for people to organise their LPAs earlier is more crucial than ever.
With Martin Lewis highlighting that the best way to organise LPAs is “to get a solicitor to do it,” due to the nature of the paperwork and signing process, people should not delay organising their LPAs; the sooner the better.
Who can make an LPA?
Anyone who is over the age of 18 and has mental capacity.
What decisions does an LPA cover?
There are 2 types of LPA:
a) Property and Financial Affairs LPA – covers decisions about:
- Buying and selling your property
- Running your bank accounts
- Claiming, receiving and using your benefits, pensions and allowances
b) Health & Welfare LPA – covers decisions about:
- Staying in your own home
- Moving into residential housing and choosing the most suitable care home for you
- Giving or refusing consent to particular types of health care including medical treatment decisions
What is an LPA?
Why Make a Will?
What Happens If You Don’t Make a Will
Rethinking your business and your contracts
Let’s face it: not everyone finds thinking about their terms of business that interesting. Yes, they are important (at least in a sort of theoretical way), but certainly not that interesting. Because they are not seen as very interesting, maybe they are less likely to get the attention they really deserve. Other things like new projects, new campaigns and strategies get to take priority.
But what if we looked at standard terms in a different way?
What if we saw them not just as small print, but actually at the centre of what we do?
They are in fact your offer to the world. They set out what you will do, and the basis on which you will do it. If you need your customer or client to do things too, then they should also deal with that. Getting it right is therefore important. You don’t want to be promising to do something you cannot do, or don’t really want to do. So, thinking about your terms of business is not just about “getting the legal bits right”, as if this was some exercise set apart from everything else. It ought to be an opportunity to rethink what your business is about, what it is going to do and how it is going to operate. Compliance with statutory requirements and provisions of various kinds – for example those which apply when dealing with consumers – is only part of it.
Lots of businesses of course have standard terms, but many of them go for years without reviewing them. It becomes a case of fingers crossed that they are still okay. Worse, some smaller businesses, may have simply “borrowed” terms they have found elsewhere years ago – the terms some other business has used perhaps. They did a cut and paste, without really thinking about whether those terms really fit the way the business works.
I am currently working with a client who is buying a business. The business looks to have done just that. It has been operating for some years. But very little thought has gone into the way it operates, or on what its terms of business should say. For my client that’s a risk. When he has acquired the business, this is one of the first things he will have to look at, if he is to put it on a firm foundation.
But of course, it is not just about standard terms. In most contracts there will be specific things to think about too – the particular set of goods you are going to supply for example, the works you are going to carry out, or the services you are going to provide for a particular customer or client. These will need to be set out too. But they will usually build on the standard terms and, of course, it is also about your business processes. There will be no point having well thought out terms, if you are not incorporating them into your contracts. Businesses need to be clear how they are going to do this. But the first step is always to be clear about what you are offering, and making sure the terms reflect that.
Useful links
Contracts: 5 things to think about Part 1 – Kerseys Solicitors
Contracts: 5 things to think about (Part 2 of 2) – Kerseys Solicitors
“no fault” eviction to be abolished but new grounds proposed
Kate Barnes head of Dispute Resolution on the Government published the Renters (Reform) Bill on 17 May 2023.
The headline in the press and promoted by the Government is the abolishing of so called “no fault” evictions pursuant to what is known as a Section 21 Notice.
This means that landlords will not be able to take proceedings against tenants without proving a substantive ground for doing so.
The quid pro quo to this is the amendment to grounds that currently exist and introduction of some new grounds which will provide more options for landlords. The key changes that I think will affect most private residential landlords are:
- New ground that a tenant can be evicted if the landlord, or a close member of his family including parents, children and grandchildren require the property as their “only or principal home”.
- New ground of proposed sale of the property: A landlord can get possession of a property if he/she “intends to sell the dwelling house” (“selling” apparently includes “transferring”).
- New ground for rent arrears that possession will be granted if at least two months’ rent was unpaid for at least a day on three separate occasions in the previous three years. This is designed to tackle cases where tenants keep rent arrears below the two months’ threshold at key times to prevent repossession order being made.
All the above grounds are termed “mandatory” which means that if they are proven a Judge must make an Order.
Things that strike me are that:
- There is no indication what sort of evidence a court will need to prove that a property is required to be the principal home of any family member.
- Similarly, there is no information as to how a landlord will prove that he or she “intends to sell” the property. Intention is in the mind of the individual who does or is proposing to do something so I assume that the landlord will have to give evidence of that intention perhaps backed up with evidence from an estate agent.
- The additional ground concerning rent arrears will give landlords another option for tenants who are persistently in arrears but have, under the current rules, never fallen under a mandatory ground.
Obviously this is a Bill and not legislation yet and will be subject to discussion and amendment by the Houses of Parliament before coming into force.
Flexible working to become a ‘day one’ right
The Employment Relations (Flexible Working) Bill 2022-23 is a private member’s bill to amend the existing statutory regime so that flexible working requests can be made from day one. It was published on 21 October 2022 and has now gained government backing.
The changes would include:
- making the right to request flexible working a “day one” right (there is currently a 26-week service requirement);
- allowing employees to make two requests in any 12-month period (rather than the current one request);
- reducing the decision period within which employers are required to respond to a request from three months to two months;
- introducing a requirement for employers to consult with an employee before rejecting their request; and
removing the requirement that an employee must explain what effect the change would have on their employer and how that might be addressed.
Getting employees back to the office
According to the Office for National Statistics, before the Covid pandemic only one in eight working adults reported working from home at least once during the previous seven days. This figure peaked at 49 per cent between April and June 2020. It has decreased since then, but not drastically, and the figure for January to February 2023 is 40 per cent.
‘Many employers now want staff to start working in the office either all the time or more frequently,’ says Annalie King, head of in the employment team with Kerseys Solicitors. ‘Reasons for this include concerns about the impact of remote working on company culture; camaraderie; loyalty; learning opportunities for junior staff; supervision; productivity; innovation and collaboration.’
Annalie outlines the contractual and equalities issues that employers need to think about when seeking to make this change.
Can we insist on a return to the office?
It is important to understand the contractual position, and the first port of call will be the employees’ contracts of employment. Also check any relevant correspondence that might have changed contractual terms.
For example, was a change agreed by email during the pandemic or after a flexible working request? Then, was an updated contract of employment issued or not?
Even if the employee’s place of work is described as home, hybrid or remote, their contract may give you flexibility to change it. We can review the documents to clarify the contractual position.
Contractual right to change place of work
If the employee’s contract gives you the right to change their place of work, this needs to be done in a reasonable way or you could still be in breach of contract. This could give the employee the right to resign and claim constructive unfair dismissal. This means giving the employee fair notice of the change. We suggest meeting with the employee to discuss the proposal with them and to consider any particular difficulties which the employee raises.
Discrimination and change of workplace
The contractual terms are not the full picture, as some employees will have protection under the Equality Act 2010. Employers need to listen carefully to any concerns the employee has about the proposed changes.
For example, working from home and avoiding a commute may help an employee cope with a physical health condition, such as irritable bowel syndrome. Hot-desking in a busy, open-plan office can be a barrier for some autistic employees. If this is a disability under the Equality Act 2010, employers need to consider if it would be a reasonable adjustment to keep the current home-working arrangements or to adapt the proposed arrangements to help accommodate the impact of the specific disability.
Female employees with the primary care responsibility for a child may need to be near nursery or school at drop-off and pick-up times. Where this is incompatible with a requirement to be in the office during office hours, this could potentially be indirect discrimination. Employers can in some circumstances justify insisting on particular working arrangements.
Once you have established the nature of an employee’s concerns, we can advise you on the discrimination risks and how best to manage them. The key message is that a blanket policy may not be acceptable for everyone, particularly if the rationale underpinning the policy has not been clearly thought through.
No contractual right to move employees
If the employee’s contract states that their place of work is home, hybrid or remote and has no flexibility, you will need the employee’s agreement to get them to come back to work in the office.
We can help you set up a process of meetings and prepare the communications explaining what you are trying to achieve and why. This will form a solid basis for the proposed change if the employee maintains their position and does not agree to a change of work base and you have to force through the change. This is called ‘dismissal and re-engagement’ or more pithily ‘fire and rehire’.
This involves dismissing the employee from their existing contract and offering them a new contract with the new work base. Both the process leading to dismissal and the decision to dismiss need to be reasonable or you could have an unfair dismissal claim on your hands. In addition, employers need to be alert to the discrimination risks mentioned earlier.
New code of practice
Following public criticism of recent high-profile, large-scale dismissals of staff, the Government recently consulted on a draft code of practice on dismissal and re-engagement, which sets out additional procedural steps. If this becomes law, compensation for any related tribunal claims can be increased by up to 25 per cent for failure to comply.
Our Firm
Each year the staff at Kerseys Solicitors select a charity to support throughout the year, raising money through various fundraising events. This year, Kerseys are supporting MIND, a charity who are “on a mission to make Suffolk the best place in the world for talking about and taking care of mental health!”
Fundraising events have included dress down days, bake sales, bingo etc. The most recent fundraising event was our Coronation Raffle held on 10 May 2023. This event was supported by local businesses who kindly donated raffle prizes. Including the Coronation Raffle, Kerseys have raised £650.00 so far!!
A special thank you to local businesses who supported the Coronation Raffle in aid of MIND
Kelly has worked in and around Suffolk supporting clients moving home for over 7 years. Kelly joined the residential conveyancing department at Kerseys Solicitors in Ipswich in May 2023 as a Conveyancing Executive.
At a young age Kelly always had an interest in law, and when the opportunity arose Kelly joined the legal industry in Residential Property.
Rosie studied Law at the University of East Anglia and graduated in 2022 with a 2.1. Rosie joined Kerseys in June 2023, supporting the Head of Employment, Annalie King.
Rosie first gained an interest in employment law whilst studying the subject at university. She enjoys working on various contentious and non-contentious matters.
Rosie will work closely with Annalie and with the firm’s Corporate team supporting them with all aspects of HR and employment issues.
