Kerseys Newsletter September 2022
Kerseys Solicitors September 2022 Newsletter
Your mental wellbeing is important – remember you are not alone.
Taking time for you to pursue your interests and hobbies is important for your mental wellbeing. Our partner, Annalie King and Head of Employment Law enjoyed showing her rare breed Valais Blacknose lamb, Millar’s Jemima, at the Antrim Show this weekend. Dougal Annalie’s donkey stayed at home with the rest of his equine friends to look after the farm (Annalie lives on a farm).
Kersey’s YouTube channel – Mental Wellbeing
Practice self-care, take a break and do something that you enjoy whether that be farming, showing, sports, reading, walking, growing plants or simply catching up with friends. Do things you enjoy – give yourself a break, get support if you need it, do not be afraid to pick up the phone and talk to someone.
Warm Welcome
Since our June Newsletter we have welcomed
Lynne Ranger as Private Client Legal Secretary and Oliver Brookes as a Conveyancing Assistant along with Kate Taylor as a Legal Secretary in our highly regarded and expanding Residential Property team who have this year again been shortlisted for the ESTAS awards (Awards that recognise excellence in Conveyancing services).
Legal Updates
Holiday Pay for Term Time Workers
The Supreme Court handed down judgment in the case of Harper Trust v Brazel which itself dates back to 2017 when a term time only employee brought a claim in the Employment Tribunals for the underpayment of holiday pay. The judgment handed down by the Supreme Court which upheld the Court of Appeal decision that part year or term time workers should not have their holiday pay prorated.
Who is affected?
This will effect companies that engage term time workers and those on zero hour’s contracts. Section 224 Employment Rights Act 1996 sets out correct method of calculation.
Weekly pay should be calculated as an average of the most recent 12 weeks of earnings disregarding the weeks where there were zero earnings, for example holidays for term time workers.
For those businesses that engage workers on zero hours or term time contracts it would be advisable to conduct an internal audit to establish the differences between the holiday pay that workers have been paid and what they should have been paid.
Once the employer establishes the underpayment,
how far back should the employer look?
An unlawful deduction of wages claim can normally be brought up to a maximum of two years back pay and must be brought within three months from the last deduction.
However, there are exceptions such as the Smith v Pimlico Plumbers which in which the Court of Appeal held that the two year limit on the claim for holiday pay did not apply.
Employers affected by the decision may wish to contact their insurer once they have calculated the number of workers affected and the amount that is owed.
The question is whether to resolve the situation now or wait for workers to raise the issue.
Legal Updates
A shift in the world of non-taxable trusts- the UK Trust Registration Service (‘TRS’)
The TRS is a register of the beneficial ownership of trusts and was set up in 2017 as part of a European Union Directive. Until 2019, only taxable trusts were required to register with the TRS. Under The Money Laundering & Terrorist Financing (Amendment) Regulations 2019, non-taxable trusts in existence on or after 6th October 2020 must be registered with the TRS by 1st September 2022, even if the trusts are now closed. Failure to comply with these requirements could mean penalties are incurred.
Kerseys have been working alongside accountants to register affected trusts.
Furthermore, under the 2019 Regulations, all non-taxable trusts created after 1st September 2022 must be registered and the TRS must be informed if any of the trust details or circumstances change.
There have been no changes to the requirement to register taxable trusts under the 2019 Regulations.
There are some trusts excluded from the requirement to register. Due to the complexity of the requirements for trusts, it is ever more important to make sure trusts comply with registration requirements.
More information:-
https://www.gov.uk/guidance/register-a-trust-as-a-trustee#what-youll-need
Legal Updates
The Building Safety Act 2022 is the Government’s response to the tragic Grenfell fire, and the first parts of the Act came into force on 28 June 2022.
While the focus has been on safety in residential units, developers and landlords of mixed-use properties will also need to comply with the new rules or they may need advice on historic developments since 1992.
The long-term impact of the Building Safety Act 2022 will be to overhaul the approach to fire risk in residential blocks, introducing tighter regulation in design, planning and construction, as well as ongoing responsibility for building owners. It also makes immediate changes to deal with the issue of who pays to replace defective cladding. Much of the Act is focused on what are referred to as ‘higher risk’ residential buildings but there will also be broad changes to the fire safety regime for many other buildings.
‘Building safety must be the highest priority for anyone developing, converting or investing in residential property,’ according to Kimat Singh, head of the Commercial. As well as creating stringent standards for the future, the Building Safety Act looks back to work done since 1992, so anyone who has been active in this market over the last 30 years will need legal advice to get up to speed.
The aims of the Act
It will eventually affect three broad areas: design and construction of new builds and residential conversions; management of safety in residential blocks once occupied; and remedying historic defects which could make residential buildings unsafe.
Design and construction
The essential parts of the new building safety regime are in place, but the details will be worked out in consultation and brought into force over the next 18 months or so. The new rules will apply to what the Act defines as ‘higher risk buildings’, which are buildings that:
- are either 18 metres high or have at least 7 storeys; and
- contain at least two residential units.
This will bring mixed-use developments into the new regime, as well as purely residential blocks, as long as they meet the height criteria. It is worth noting that purpose-built student accommodation blocks of the specified height will also be included.
When the detail has been worked out and brought into force, developers will have to satisfy the new Building Safety Regulator at three ‘gateway’ stages in a building or conversion project: planning; pre-construction; and pre-completion. At the planning stage, the developer will be required to submit a fire statement with the planning application. Before construction starts, the regulator will require full design details, with details on how the building will comply with the relevant regulations once it has been completed. Once the building work is complete, the regulator will want to see that a range of required safety information has been compiled and will be passed to the building owner. This is being referred to as the ‘golden thread’ of building information and will play a key role in making sure that each owner has the information they need to manage safety properly. It should also ensure that those responsible for design and construction can be identified and remain accountable throughout the life of the building.
Safety in occupied buildings
Once a higher risk building has been completed and is occupied, the focus of the new building safety regime shifts to monitoring and managing risks from the spread of fire or structural failure (which could lead a building to collapse). Responsibility will lie with the Accountable Person (or persons, because there could be more than one depending on how the building has been subdivided). This will broadly be whoever controls or is obliged to repair the common parts, structure or exterior, so is likely to be the long-term building owner. The Accountable Person can be an individual, a partnership or a company. Where there is more than one Accountable Person, they will have a duty to cooperate with each other. The duties of an Accountable Person will include assessing and managing building safety risks, compiling and maintaining the golden thread information and producing a residents’ engagement strategy. If an Accountable Person is in breach of these obligations, they may be prosecuted.
There is already a similar role in relation to commercial buildings and the common parts of residential blocks with the Responsible Person. The Building Safety Act amends the rules which apply to Responsible Persons, who will continue to be responsible for fire safety in buildings which do not fall into the definition of higher risk buildings. The changes will include more stringent requirements for training and competence and an obligation to pass on information to a successor, as well as a duty to cooperate with Accountable Persons.
Defective cladding
For obvious reasons, much of the public discussion of building safety has focused on the issue of dangerous cladding. The new rules on dealing with pre-existing defects came into force on 28 June 2022. There are some important points to note here:
- These rules apply to slightly smaller buildings than those covered by the main building safety regime. A ‘relevant building’ for the provisions on defects must be either 11 metres high, or have at least five storeys, and contain at least two dwellings.
- It is now illegal for landlords of relevant buildings to charge tenants for the cost of removing or replacing unsafe external cladding – even sending them a bill is outlawed.
- There is also a cap on the amount a landlord can recover from tenants for dealing with non-cladding defects that might cause fire to spread or a building to collapse. This depends on the status and financial position of the landlord and the value of the lease, so landlords should get legal advice to work out what they can legally charge back to tenants.
- The time limit for claims for defective work and products used in building or converting residential property has been extended, so that courts can now look back 30 years. This is a significant shift in policy and will make many more developers, building contractors and owners potentially liable for unsafe buildings. The first court decision on this was published in July 2022, with a design and build contractor being held liable for specifying and installing unsafe cladding on residential blocks between 2005 and 2008. All decisions like this will depend on what the relevant contracts said, but this case is expected to set the tone for those involved in building and converting residential blocks to be held to account.
Our Firm
As a firm we are passionate about the local community and are Friends of Christchurch Park supporting a number of events in and around Ipswich. This winter we shall be sponsoring the latest exhibition at Christchurch Mansion Landscape Rebels. The exhibition opens 22 October and runs until 16 April next year along with Christchurch Mansion, where we will be sponsoring the Landscape Rebels | Ipswich Museums (cimuseums.org.uk)
Kerseys Charity of the Year this year voted for by our staff will be MIND helping the charity to be there for everyone who needs them. Many people experience mental health problems throughout our lives and it is important to raise awareness that this is not a sign of weakness. We must allow ourselves to not be afraid to speak to someone and get help when needed.
You are NOT alone.
We will also continue to support Fresh Start New Beginnings to help support children have a better start in rebuilding their lives and join in the Dragon Boat Race 2023 which is a local Ipswich event at the Waterfront bringing people together for fun whilst raising vital money for the charity.
We are delighted to have taken up the opportunity to have a corporate box at
Ipswich Town Football Club and we will be reaching out to clients, professional referrers throughout the course of the season to enjoy a match day experience with us.
We enjoyed a thank you gathering to our staff where staff spent a well-deserved late afternoon/evening sailing on a barge.
Kimat Singh head of our Commercial department attended The Signature Awards London 2022
at Hilton Park Lane, Mayfair celebrating the best in business who provide cutting edge
thinking and have driven their organisations forward.
Whilst some our team along with guests dug out their black ties and enjoyed
The Prestige Dinner 2022 with football legend and king of the jungle Harry Redknapp as a guest speaker hosted by Suffolk Chambers.
Best wishes from the Senior Management Team at Kerseys.
We are only a click or call away.
