Author: GSC

With advances in health care and focus on good nutrition the World Health Organisation between 2015 and 2050 estimate that the world’s population over 60 will nearly double from 12% to 22%. The reality is that we are living in an ageing population and whilst on the one hand this is good news, an ageing population does present challenges in adult children dealing with aging parents and issues regarding mental capacity.

Lasting Powers of Attorney (LPAs) are intended to deal with the issue of the aging populations and is designed to fill the gap between losing capacity and passing away.  The Office of the Public Guardian reported that 3.5 million LPA’s have been registered by the end of 2018 and they receive 3,100 LPA applications every day.

The LPA delegates power to a third party (usually a family member) to make decisions on behalf of the person who loses mental capacity. However, there are number of pitfalls in practice that people should be live to when putting in place an LPA.

• With the concept of the bank of mum and dad becoming more prevalent, it is common that grandparents assist in paying for school fees. However, the law imposes strict limits on the gifts that can be made under an LPA. Therefore if the attorney wants to use the funds to pay towards school fees they have to make an application to court.
• When the attorney start using the LPA, they may need to provide evidence of that the person has lost capacity which will require an capacity statement. This may not be straight forward and there are occasion that capacity can be come and go which leaves the attorneys in a difficult position to decide how they can act.
• It is important for the donor to choose the attorney carefully. The Financial Times reported that there were 876 investigations into abuse of an LPA in the year end March 2016 of which 90% of the abusers were family members. Many donors appoint their children as attorneys but if the children do not get a long it is a recipe for disaster where disputes among siblings over the management of the estate has increased dramatically.

Provided the person putting in place the LPA is aware of the issues and get the appropriate advice when drafting the LPA, many of these issues can be mitigated.

LPA’s still have a huge benefit over the other option of doing nothing. If a person no longer has capacity to make decisions it is then too late to put in place an LPA. In these cases a relative must apply to the Court of Protection to become a deputy. This process can take at least 6 months and during this period assets are frozen. The deputy is under a requirement to file annual reports on each decision that is made and the cost of this can easily run into the thousands. Further while under an LPA you can choose who to be the attorney, but under the deputyship the court appoints a person to deal with the financial affairs.

For further questions please contact James Cohen on 0207 822 2222 or [email protected] 

When someone leaves a job and is looking for a new one, it is very common for the employee to ask its previous  employer for a reference to give their potential employer.

Put in that situation, most employers will want to appear helpful and oblige. Why wouldn’t you help? especially if it is someone you like.

However, the law in this area can be complicated, and so employers will need to make sure that they are not inadvertently putting themselves into trouble when trying to be helpful to an ex-employee.

An employer providing a reference should bear in mind the following:

• Other in certain specific circumstances (for example if there is a contractual obligation to do so, or in particular industries e.g. financial services), there is no legal obligation to provide a reference.
• On the other hand, if an employer decides not to provide a reference, it should be careful as to why the reference is not being given or it may for example open itself up to a discrimination claim.
• A reference should be true, accurate and fair and should not give a misleading impression of the employee. It should also not be discriminatory.  If the reference does not reflect that, the employee may have a basis for  a claim against the employer providing the reference.
• The party receiving the reference will be entitled to rely on it.  If the reference proves to be inaccurate for example, and as a result, the new employer suffers a loss, the new employer may look to recover this loss from the party giving the reference. This can be a worry which can be reduced, in relation to most claims, by including a disclaimer at the end of the reference limiting the liability of the reference provider.
• Even with a disclaimer, employers are sometimes worried about saying too much. This has led to a trend of bland references being provided where only very basic information about an employee is provided such as someone’s job title and start and end dates relating to their employment. If such a reference is provided, it is good practice for the employer to state that its policy is only to provide these types of references, partly so as not to give the impression that they are hiding something.
• A reference will contain personal data relating to the employee. In a lot of circumstances, an employee will need to provide their consent to the party providing the reference using their data for that purpose. If consent is provided, the party providing the reference will need to be careful to ensure that it has not included anything in the reference that the employee would not have consented to.

For advice on employment matters, please contact David Nathan on 020 7822 2222 or at [email protected]

In today’s environment there are already considerable challenges to your business which coupled with the problems of Brexit make matters difficult enough.

To add to the problems there is the danger of fraud. This is frequently overlooked by business owners and/senior management.

The disturbing fact is that recent research has showed that 38% of UK businesses have been affected by internal fraud. The only part of the World with a worse figure  was sub-Saharan Africa.

Adverse social media activity is a considerable factor and there is much concern in the market place regarding cyber crime and also cyber attacks.

Crypto currencies continue to give cause for concern.

Any of the above could seriously damage a business.

The answer is that prevention is better than cure so review your systems on a regular basis and seek professional advice if in doubt.

For further information, please contact Richard Curtin on 0207 822 2222 or [email protected]

Like numerous other development projects, the redevelopment of Chelsea FC hit a stumbling block as a result of rights of light enjoyed by some of its neighbours.  Chelsea FC nearly managed to overcome this issue by reaching agreement with most of those neighbours to pay compensation to them but, for the Crosthwaite family, a financial payment was not satisfactory.

Readers may recall hearing in the media about the Crosthwaite family who, concerned that the proposed £1bn expansion of the stadium to 60,000 seats would block light to their nearby home, took out an injunction against the redevelopment.

However, although the redevelopment of Chelsea FC was stalled by this, it was given the go-ahead, thanks to section 203 of the Housing and Planning Act 2016 and a court ruling last year.  Under this piece of legislation, authorities which are public bodies that acquire land are granted the power to override various easements/rights and restrictive covenants.  That means, amongst other things, that a local authority can carry out a development where planning permission has been granted, even if it interferes with rights of light.  One of the requirements for section 203 to apply is that the specified authority could acquire the land in question compulsorily for the relevant works, for the relevant use.  This is generally being interpreted as a requirement for there to be a public interest in the works.

In order to meet all the requirements of section 203, Chelsea FC granted a lease of the land to local authority, Hammersmith and Fulham Council, and then took a leaseback from them.  The Council, having acquired the land, was then able to use the powers granted to it by section 203 to override the rights of light affecting the land as the development was successfully argued to be in the public interest due to the benefits it brought to the community (including affordable housing and employment).

Where section 203 is used to bypass rights of light, instead of being granted an injunction or compensation in lieu of an injunction, the right holder will only be entitled to statutory compensation for injurious affection (in essence, the amount by which a property will depreciate as a result of the works).  In reality, a financial payment agreed with the developer or compensation ordered by the court in lieu of an injunction is likely to be much greater than the statutory compensation payable where the powers under section 203 have been used.  As it happens, in the Chelsea FC case, threatened with proceedings for judicial review, it is understood understand that Chelsea FC made an offer of compromise to the Crosthwaite family which was accepted (although whether the redevelopment at Stamford Bridge actually goes ahead remains to be seen).

Developers of the Walkie Talkie building in London also took advantage of the powers granted by section 203 in order to unlock the development by sidestepping rights of light affecting it, allowing it to proceed.  However, there are exceptions to the powers granted by section 203 – they do not authorise interference with “protected rights” (ie. a right vested in a statutory undertaker for the purpose of its undertaking or a right conferred by or in accordance with the electronic communications code) or rights annexed to National Trust land – and there will be many other developments where this piece of legislation will not come to the rescue.

In all circumstances where development is proposed, advice from a real estate solicitor and planning expert and, where appropriate, a rights of light specialist, should be sought at the earliest opportunity to see if there might be any legal obstacles to the development and to minimise potential disputes and litigation claims in the future.