Blogs

Irish Series: Irish businesses beware of new Anti-Corruption legislation

A new Criminal Justice (Corruption Offences) Bill has been passed through Irish Parliament, and it is expected that this will shortly be passed into law. When passed, the legislation will introduce a range of new corruption related offences as well as expanding the scope of Irish anti-corruption law. It serves to codify the existing law, repealing and replacing 7 existing Prevention of Corruption Acts, and will criminalise both active and passive corruption

The Anti-Corruption legislation will mean that Irish citizens, companies and other corporate bodies registered in Ireland who commit acts outside of Ireland which if committed in Ireland would be an offence under the Act may be prosecuted in Ireland under this legislation.

The key aspects of the proposed new legislation are as follows:-

  1. The creation of a corporate liability offence, whereby a body corporate can be found guilty of an offence if anyone acting on behalf of that body is found guilty of a corruption offence.
  2. A donation will be presumed to be corrupt where it has not been disclosed or an explanation given;
  3. Criminalise any act of an Irish public official carried out in the course of their official position with the intent of corruptly obtaining an advantage for a third party, whether that third party was involved or not;
  4. Create severe penalties for businesses and individuals that engage in corrupt behaviour, including a prison sentence of up to 10 years and/or unlimited fines;
  5. Give the Courts the power to remove public officials from office and prevent them from holding office for up to 10 years;
  6. Grant the Court the power to order the forfeiture of assets equal to the value of the bribe as an alternative to forfeiture of the bribe itself;
  7. Hold a company liable for the actions of its directors or employees who commit a corruption offence, unless the company can show that it took all reasonable steps and exercised due diligence to avoid the commission of the offence.

The legislation has been hailed as a robust piece of legislation and will now pass to the President to sign into law.

Our Irish qualified solicitor Caoimhe Boyce keeps her eye on the legal news in Ireland. For further discussion or to get her views on any matter, contact her on cboyce@meaby.co.uk.

Why Move to Oval?

According to Wikipedia, the land at Oval was from the seventeenth century used as a market garden.  The name Oval originated from the street layout which was originated in 1790 but never completely built.

Oval has good transport links with Oval station being on the Northern Line and with many buses passing through.

There is a large farmers market in the church gardens at St Marks Kennington, right near Oval station on Saturdays.  This has many stalls which sells a wide variety of produce including meat, eggs, milk, cheeses, vegetables and fruit, cider, wine, cured meats, bread, cake, chocolates and gifts.  There are also street food stalls so you can enjoy a spot of lunch during your visit.

Oval is famous for the cricket ground where Surrey County Cricket Club play their home games, so it is a great place if you enjoy watching cricket.

Kennington Park is also near the station.  It’s a large park which has plenty of room for playing sport, having a walk or sitting in the sun.  It has a playground and also has a large outdoor gym.  The outdoor gym has plenty of gym equipment including several pull-up bars, monkey bars, balance beams and a wobbly plank to test your balance!

Clapham Road has a number of shops including Max and Melia which sells interesting gifts and homeware.

If you like the arts, The Ovalhouse Theatre on Kennington Oval offers regular theatre performances.  Occasionally, they also have pop-up restaurants which are worth looking out for.

The Fentiman Arms on Fentiman Road is a local pub which does good pub food and shows sport.  It has pub garden so you can sit out in the sun with a pint.  It also has a regular pub quiz.

Claylands Fish Bar on Claylands Road does traditional fish and chips.  It also offers free chips with your fish on Tuesdays.

Adulis Restaurant on Brixton Road is an Eritrean restaurant where you can enjoy traditional African stews and curries with injura (a flat spongy flatbread).

If you’re looking to sell or buy a property in Oval or the surrounding areas, please contact Brian Craig on 020 7703 5034 or bc@meaby.co.uk for timely advice.

Gifting and Care Costs – Intentional Deprivation of Assets.

With nearly 20% of the population being aged 65 and over, more and more families are faced with the reality that a loved one may need extra care at home or face a move into residential care. With the costs of care rising, many worry how they will afford to pay for care and whether they will have anything left to pass on to their families.

At present, those with assets of £13,500 or less will have their care fully funded by the local authority or NHS. Those with savings of £23,250 or more will only receive some contribution if they meet certain medical criteria otherwise, they will be required to meet their care fees in full. This is the same whether the care required is delivered at home or residential care is the best option.

With the costs of the family home as well as savings being taken into account, the majority of people will have assets far in excess of the current minimum limits. With such a large bill to meet, many find their assets being depleted at an alarming rate. This can be disheartening and it is no wonder that many will consider gifting their assets to family and friends before it is eaten up by a large care bill.

However, timing here is key. To make lifetime gifts is of course ok. Many do this in order to financially assist younger family members or to reduce their estate in order to limit their exposure to inheritance tax. In relation to care costs, an issue will arise if you intentionally give away assets such as property or cash in order to reduce your estate so as to pay fewer costs. This is known as “intentional deprivation of assets”. If your Council considers that an intentional deprivation has occurred, they may assess you as if you still own the gifted asset, leaving you back at square one. If you make a gift, the person receiving that gift could also be liable to pay for some of your care.

So what counts as an “intentional deprivation”? When deciding whether the disposals you have made have been deliberate, it will be considered whether you knew, or there was a reasonable prospect of you needing care, and avoiding paying for care was your main motivation in making the gifts.

It is not just gifting that counts as an intentional deprivation. The Council will look into your expenditure and if they consider that there is a pattern of spending which is uncharacteristically high or frequent, or if you have recently used savings to buy a vehicle or jewelry, they could consider that such spending was purely to reduce your estate to avoid paying care fees. The same could be said for putting the money into an irrevocable trust or indeed gambling the money away!

If you are worried about care costs and would like advice on how to protect yourself against them, please contact Hollie Skipper at hskipper@meaby.co.uk, or feel free to call on 020 3861 5158.

 

Appointing a Family Law Solicitor

The best way to choose a solicitor is always by personal recommendation, but you may not know anyone who has recently been through a divorce, or you may have several recommendations and cannot choose between them – where do you start?

These days you can obtain a lot of information about solicitors from their online presence – their firm’s websites, their Linkedin Profiles etc. You should look at the length and breadth of their experience, areas of specialisation, professional memberships, whether they are also trained mediators and/or collaborative lawyers and their general “style”.

Always check to see whether a solicitor is a member of Resolution – the leading organisation of family lawyers in England and Wales. If they are this indicates that they have considerable  experience in family law and that they abide by a Code of Practice which promotes a constructive and non-confrontational approach to resolving disputes, designed to maintain the dignity of the parties and to prioritise the needs of any children. Have a look at the Resolution website. It has a large public area which is a great source of up to date information regarding family law – www.resolution.org.uk.

Give your shortlist of solicitors a call. Most solicitors are happy to have an initial chat on the phone and you should be able to gauge whether you are likely to get on with the solicitor during the telephone call.

Beware the free 30 minute consultation. It is impossible for a solicitor to gather all of the relevant information from you and give you well-considered and comprehensive advice in such a short period of time and you will usually just be given some generic information and encouraged to make a further appointment. Cost is always a consideration but bear in mind that you usually get what you pay for in this life. Solicitors usually charge on a time basis. Ask if they offer any fixed fee work. Ask the solicitor’s hourly rate.

If you are considering appointing a family solicitor please contact our Head of Family, Joanna Toloczko at jtoloczko@meaby.co.uk for a no obligation chat on the telephone.

Landmark Supreme Court decision in the Pimlico Plumbers case

The long awaited decision has been delivered by the Supreme Court in Pimlico Plumbers Limited and anor -v- Smith where it has been held than an employment judge was entitled to conclude that a plumber who worked under a contract where he was described as an independent contractor was in-fact a worker.

The facts of the case are that Mr Smith entered into a contract with Pimlico Plumbers as an independent contractor providing plumbing and heating engineer services and this was confirmed in a written contract.   It also stated that he was in business on his own account, and that Pimlico Plumbers were  not obliged to offer any work and that Mr Smith was under no obligation to accept any work.

The written contract also set out that Mr Smith should complete a minimum of 40 hours per week work, had to drive a van bearing the logo of the company and wear a uniform with the same logo.

Importantly there was no express right of substitution where Mr Smith could substitute another plumber to undertake his work, although the Pimlico Plumbers could swap work arrangements between themselves.

Pimlico Plumbers terminated the arrangements with Mr Smith on 3 May 2011 and he then issued claims in the employment tribunal for failure  to pay holiday pay, unlawful deductions from wages and disability discrimination.

The Employment Tribunal had to determine whether Mr Smith was a worker for the purpose of his holiday pay and unlawful deduction of salary claims and an employee for his disability discrimination and equality act  claim.

At first instance the Employment Tribunal held that Mr Smith was a worker and an employee for these purposes.   It held that the main purpose of the written contract was for Mr Smith to provide work for Pimlico Plumbers and that he did not have an unfettered right to substitute at will.  He was therefore obliged to provide his services and was therefore a worker.

Pimlico Plumbers appealed the decision to the Employment Appeal Tribunal and then the Court of Appeal where the appeals were dismissed.

This brings us to the latest appeal to the Supreme Court which has also dismissed the appeal.  The Supreme Court held that the original employment judge had been entitled to find that Mr Smith’s only right of substitution was another colleague at Pimlico Plumbers and that this limited right of substitution was not inconsistent with an obligation to perform services personally.

Other important factors that swayed the decision that Mr Smith was a worker was the requirement to wear a uniform bearing the logo of Pimlico Plumbers, drive their van with their logo, the necessity of carrying  an identity card and following instructions from its control room.  There were also references in the written contract to ‘wages’, ‘gross misconduct’ and ‘dismissal’ and restrictive covenants controlling Mr Smith’s activities in the event of the termination of the arrangements.   The language is  consistent with an employment relationship.

Rather predictably Charlie Mullins of Pimlico Plumbers said ‘The shame of all of this is that it is currently accepted that current employment law is not fit for purpose, and needs to be changed.  But when it’s put to the test in our highest courts there isn’t even the slightest suggestion that there is a problem that needs to be addressed.  This is a poor decision that will potentially leave thousands of companies, employing millions of contractors, wondering if one day soon they will get a nasty surprise from a former contractor demanding more money, despite having been paid in full years ago.  It can only lead to a Tsunami of claims’.

It could also be argued that many businesses like Pimlico Plumbers do not understand employment law and the boundaries between employment and self-employment.  Charlie Mullins statement about companies ’employing millions of contractors’ is also inconsistent.

The message from the Courts are  that Companies who engage contractors in the Gig economy really ought to ensure that the relationship that they are creating in reality actually mirrors the day-to-day activities.   This model can work but only if contractors are truly self-employed with no mutuality of obligation for example to have to accept work, with a right to substituting  other contractors.   Contractual documentation also needs to be carefully tailored to ensure that the language is consistent with true self-employment/contractor status.

It is our observation that many companies like Pimlico Plumbers are attempting to cut corners and deny employment rights by taking on contractors who they still wish to control in terms of the work that they carry out and the hours that are worked.

It will no doubt be left to the Government to tackle these developments and to legislate  to make it clear that those working in the ever evolving Gig economy do have rights and will be classed as workers, thus providing employment protection rights that come with that status  for example to holiday pay, and  national minimum/living wage.

If you have any questions in relation to worker status and the Gig economy then contact Steven Eckett, Head of Employment at Meaby & Co etc for timely advice: seckett@meaby.co.uk or call 0207 703 5034.

Meabys Chigwell Networking Breakfast

Meabys hosted the first Chigwell networking event yesterday morning (12th June) in The Loft at the Chigwell Office. We were joined by 30 or so guests from other local businesses for a continental breakfast. New contacts were forged and business cards exchanged over the Danish pastries and there was a business buzz in the air. If you would like to be invited to the next event, please contact our Business Development Director, Elliott Lawlor at elawlor@meaby.co.uk.


Relax

They say that moving house is one of the most stressful things you can do in your life.  Here are some things you can do to help you relax and de-stress during the process.

Me time.  If you have a busy job and/or a family, it can feel like you’re always rushing around, always at work, always running around for other people but not finding time for yourself.  Dr Rangan Chatterjee in his book The Four Pillar Plan recommends that people spend 15 minutes on “Me Time” every day.  That will be different for different people.  It could be taking a bath, sitting and listening to music, doing an activity or craft that you love.  Taking a small amount of time out for Me Time can mean you feel refreshed and more productive for the rest of your day.

Be active.  Moving your body is a great way to de-stress.  Any form will do and there are many to choose from.  The best form of exercise is the kind that you enjoy as enjoyment will motivate you to do it regularly.  If you don’t like running, don’t run.  Just try out different classes and see what you like.  Yoga and pilates are good to wind down.  There are outdoor gyms in many local parks and being outside in nature is also good to de-stress.  Going for a walk, particularly in a green space is also great to unwind.  Being outside in green spaces and/or being out in the sun or fresh air has a calming and uplifting effect.

Meditating.  Meditating is becoming popular nowadays and scientific studies have shown that regular meditation has many benefits including a clearer mind, less stress, better concentration and better sleep.  Apps such as Calm and Headspace offer guided meditations which are easily accessible so you don’t have to be a monk to try it out.  Or it can be as simple as sitting in silence and focusing on your breath for a few minutes.

Colouring in.  Adult colouring books have become popular recently.  Colouring in is a peaceful way to unwind at the end of the day and brings back memories of childhood.

Gratitude.  Spending time at the end of the day to reflect on what has gone well that day and what you’re thankful for is a good way to de-stress and put you in a more positive frame of mind.  It can help you to slow down your mind and focus on the good things that are in your life.  It can be as simple as having a small notebook (a gratitude journal) by your bedside table and listing three things you are thankful for each night before you go to bed.

Play.  Play is great for de-stressing.  In the evenings, a board game or game card with friends is a great way to spend an evening (Jungle Speed is one of my favourites).  In the summer, a game of rounders or throwing a Frisbee around is a great way to spend time with friends and get some outdoor time at the same time.

During the conveyancing process, we aim to make the process run as smoothly and as stress-free as is possible and we are always on hand to answer your questions.

If you are buying or selling, please contact Brian Craig on 020 7703 5034 or bc@meaby.co.uk for timely advice.

Blogs

Airbnb – Are You In Breach of Your Lease?

On the 1st May 2018 the Central London County Court upheld a decision granting a landlord an injunction against further letting of a flat as an Airbnb as it was found that the use amounted to a breach of the covenants in the lease.

In the case of Bermondsey Exchange Freeholders Limited v Ninos Koumetto (as Trustee in Bankruptcy of Kevin Geoghegan Conway) (unreported) Kevin Conway was the leaseholder of a 999 year lease of a flat in the Bermondsey Exchange building in South London.  Mr Conway began letting his flat through Airbnb and other online agencies. The freeholder was concerned about nuisance and security issues and so applied for an injunction to stop Mr Conway from using the flat for temporary lettings. The judge granted an injunction preventing Mr Conway from using the flat as an Airbnb on the basis that there was a clear breach of the lease.

Mr Conway became bankrupt shortly before the judgment, but his trustee in bankruptcy appealed against the judgment.

The appeal at the Central London County Court was rejected on the following grounds:

  • the lease did not allow subletting or permitting others to occupy the flat other than by a subletting or assignment with the Landlord’s consent; and
  • the user covenant in the lease required the flat to be used as a residential flat for the occupation of one family only.

This case will be welcome news to freeholders who may be able to prevent the use of their properties for short term lettings.  In recent years, particularly in the prime London market, there has been a sharp increase in temporary lettings through Airbnb and other online platforms, and therefore, it is likely that these type of disputes will become more frequent.   If you are a flat owner you must check the terms of your lease before listing a property otherwise you could be in breach of your lease and risk being taken to court by your freeholder.

Meaby & Co Solicitors LLP can advise you on all property matters. Please contact Zahra Shah (zshah@meaby.co.uk) for more details.

 

Dementia Action Week and Lasting Powers of Attorney

Last week marked Dementia Action Week, a disease that affects 1 in 6 people over the age of 80 (and over 40,000 people under the age of 65), and which should therefore be more often discussed.  Alzheimer’s disease is the most common form of dementia, but not the only one.  Dementia describes a set of symptoms that can include memory loss, difficulties with thinking and problem solving, and generally affects a person’s day to day life.  Once a person starts suffering with dementia, their family members often wonder what can be done to safeguard their health, and to avoid any unnecessary difficulties in the future.

Following a diagnosis of dementia, it is important to ensure that the person who is suffering (the “donor”) puts in place a Lasting Power of Attorney (“LPA”) which enables that person to appoint loved ones to make certain decisions on their behalf.  An LPA can only be put in place where that person still has mental capacity, so the sooner it is put in place the better.

An LPA is a formal document, registered with the Court of Protection and governed by the Mental Capacity Act 2005, thereby ensuring that the best interests of the donor are safeguarded.  A person would usually appoint their friends or loved ones to act on their behalf in the event that they lose capacity, however they can also appoint a firm of solicitors or a trust corporation.

The LPA will enable the attorney to make decisions, as the donor would have done, provided they are made in the best interests of the donor.  It means that bills can be paid, decisions as to care can be made, and property can be dealt with on the donor’s behalf.

Previously Dementia Awareness Week, “Dementia Action Week” seeks to encourage more people to take action in raising awareness of this terrible disease.  This could be through raising money for charities supporting dementia, or by becoming a “Dementia Friend”. A Dementia Friend learns a little more about what it is to live with dementia, and turns that understanding into action – by telling more people about it or by visiting those living with the disease and helping out in small ways around the house.

As the charity is very close to my heart, I will be raising money for the Alzheimer’s Society in September 2018 by taking part in the Nuclear Race (mud run) with a number of other colleagues from Meaby & Co.  Any support is of course very welcomed! https://uk.virginmoneygiving.com/fundraiser-display/showROFundraiserPage?pageId=942764

For information on setting up a Lasting Power of Attorney, please contact me at Laura@meaby.co.uk, or on 0207 703 5034