Solicitor Highlight

We are proud to see that Steven Eckett – Partner and Head of Employment here at Meaby & Co features in the July edition of Attitude magazine where he discusses his work as an employment lawyer and LGBTQ legal issues.

Community Infrastructure Levy – a brief explanation

If you have bought a property in the last few years, or have carried out works to your existing property, you may have come across the relatively new Community Infrastructure Levy (CIL).

 

The first CIL came into force nine years ago as a result of the Community Infrastructure Levy Regulations 2010.  The intention was to provide additional income for the local authority to support the development of the local area.  In London, the Levy goes towards the local authority to contribute towards local development plans, and also to the Mayor of London for citywide development plans.

 

The levy is charged per square metre of the development, with a minimum payable liability of £50, and the level of the charge will vary between different local authorities.

 

A CIL is payable on certain types of development, including a new house of any size, but is mainly designed to affect new developments or large extensions (of 100 square metres or more) to existing properties.  In addition to the usual requirement of planning permission and building regulations approval for such works, you will also have to pay the CIL liability to the council, although CIL does not at least mean that any additional permission is required.

 

CIL is linked to planning permission, in that the CIL is charged on new development, which would in turn usually require planning permission.  It should however be noted that where you seek a Lawful Development Certificate, to confirm your right to carry out work to the property under permitted development rights, this would not trigger a CIL payment if no planning permission would have been required for the work.

 

Further information can be found at: https://www.gov.uk/guidance/community-infrastructure-levy.

 

If you need any advice on Community Infrastructure Levy, or if you are looking to buy or sell a property, please contact Andy Roscoe at Meaby & Co for advice: andy@meaby.co.uk or call 020 7703 5034.

Your employer goes into administration. What are your rights?

The recent news that British Steel has slipped into compulsory liquidation and appointed the Official Receiver to oversee and run the business has focused employees’ minds on the possibility that the company is wound up and redundancies follow. In those circumstances, what are the rights of the employees?

If an employee has worked for the company for 2 or more full years (known as “continuous employment”), they are entitled to redundancy pay. The statutory minimum is:
• half a week’s pay for each full year the employee was under 22
• one week’s pay for each full year the employee was 22 or older, but under 41
• one and half week’s pay for each full year the employee was 41 or older.

Length of service is capped at 20 years. Weekly pay is capped at £525 and so the maximum statutory redundancy pay an employee can get is £15,750.

It is open to British Steel to pay more, but given its parlous financial position (it was not in a position to appoint administrators due to lack of funds), that is unlikely.

But what is the position if British Steel does not have the funds to pay?

If there are insufficient funds available to make redundancy payments, an employee can claim payments from the National Insurance fund up to a set maximum to cover redundancy payment, outstanding payments like unpaid wages, overtime and commission, accrued holiday pay and notice pay. Claims must be made to the Insolvency Service.

It is a small comfort to an employee who has just lost their livelihood that even if British Steel cannot pay their outstanding financial entitlements, that there is a backstop which effectively guarantees this.

Meaby & Co are lawyers experienced in all employment issues. Should you require advice on any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or cmarshall@meaby.co.uk.

BUYING AND SELLING A PROPERTY

Congratulations. You have sold your house and have found a property to purchase. You now need to deal with all the mundane stuff such as choosing a solicitor. This is hardly the most exciting part, but choosing a good solicitor is a really important decision.

Many people believe that they have to use an estate agent’s in-house service or a firm of solicitors they recommend. No matter what your estate agent tells you, you don’t have to use either of these services. In fact, if you are purchasing with the assistance of a mortgage, some lenders will charge you an additional fee for using a firm of solicitors who are not on their panel.
You should consider using a reputable firm of solicitors such as Meaby & Co. LLP, who will provide you with a five star, one to one service and get the job done quickly and efficiently. At Meaby we offer a fixed fee payment option which means you only pay the amount that’s quoted. This avoids any nasty surprises further down the line. We may not be the cheapest, but the firm you pick will be responsible for all the legal work involved with your sale and purchase and if you base your decision on price and they miss anything or make a mistake, it will end up costing you a lot of money. In this situation, it will be a false economy.

At Meaby, we will give your case proper attention and do all we can to meet your preferred dates for exchange and completion. We deal with all conveyancing matters from the simplest to the most complex.

How you may finance your purchase……Bank of Mum and Dad

Although purchasing a new build gets you onto the Property ladder, you must be aware of the costs involved in doing so. These costs do not just include your monthly mortgage payments, they include the upfront cost of purchasing the Property. These costs include reservation fees, stamp duty, mortgage arrangement fees, surveyor fees, additional extras you would like included in the Property (if buying a new build) and of course your deposit. The deposit is the largest sum of money you will be putting into the purchase and the amount will differ from person to person depending on their circumstances. You may have the full deposit but there are others who do not…what are their options?

The most common option we have seen is that purchasers’ parents gift their children with the deposit to allow them to get onto the property ladder. It is important to note that a gift does not only have to be made by parents. It can be made by other family members such as grandparents or siblings. We have seen a great increase in gifts being provided over the last few years, and in particular with first time buyers. Although this is a very informal agreement it is important for both parties to understand what the gift means to them and the implications of the same.

The following are some pointers to assist:

1. Inform your solicitor as soon as you can that a gift is being provided in the transaction. Your solicitor will have requirements which can include requesting ID (certified by a legal professional) of the giftor (person providing the gift), evidence of the funds being available (usually bank statements or other statement showing the availability of the funds) and evidence showing the funds are a gift and not a loan;

2. Your solicitor will still be required to undertake the necessary anti-money laundering checks on the funds making up the gift and it is therefore important to understand that any enquiries made by them is not intended to be intrusive and co-operating will only help to move matters along;

3. Your solicitor will be obliged to report the gift to your lender/mortgage provider. They would require confirmation of the amount of the gift and the relationship between you and the giftor. Although the lender is initially informed of the gift when making the application, your solicitor cannot proceed with the transaction until the lender/mortgage provide has confirmed they are happy to proceed;

4. The evidence proving the funds are a gift and not a loan usually comes in the form of a letter from the giftor. The letter would usually include confirmation of the amount being gifted, the fact that the giftor does not expect the funds to be repaid, will have not interest in the Property and will not be living at the Property. This letter will need to be provided to your Solicitor;

5. It is imperative the giftor understands that once the process has been completed, they no longer have any rights over the money or the Property. There may also be other tax implications on the giftor such as inheritance tax.

If you are looking to buy a new home or just want a chat about the process of buying a new build home process contact Prabjoth or Senay at Meaby & Co for timely advice at pbassan@meaby.co.uk / stalat@meaby.co.uk or call 0207 703 5034.

Protecting the Goose that Lays the Golden Egg – your options when marital conflict hits the family business

If you are divorcing and you have a family business, don’t assume that it has to be sold or wound up. Although a sale of the business is one option, it may not be an attractive option for one or both of you. There are many family businesses which provide a valuable income stream for the family but are not capable of being sold or only have a very modest capital value. Why kill the goose that lays the golden egg? A settlement can be structured so that the spouse involved in the business is obliged to pay maintenance from the business income to the other party and/or a percentage share of the proceeds of sale of the business if and when the business is sold in the future.

If both of you are involved in the business as either directors and/or shareholders, whilst matters may be dealt with on the basis that one of you will resign and assign their shares to the other in return for a lump sum payment, this doesn’t have to be the case. Whilst there are obvious difficulties in continuing to run a business together when a relationship has broken down, there is no real reason why you shouldn’t just carry on as a normal, if you can make it work. You will need to make sure that each party’s role in the company is strictly defined. You may also wish to consider the preparation of shareholders’ agreements and possibly the issue of different classes of shares, to define who gets a vote on which issues and who is entitled to dividends at what level etc. This will minimise the scope for disagreement in the future.

Many companies operate Self Invested Personal Pension Schemes (SIPPS) for their directors. Whilst it is possible for a pension sharing order to be made in respect of a SIPP, this can be tricky if one of the major investments in the SIPP is commercial premises which are needed for the business.

It is important to consult the company accountant at an early stage so that you can explore all of the possibilities. If you are attending family mediation and you both have a relationship of trust with the company accountant, you may wish to consider involving him/her in the mediation sessions. It is also important to take advice about the tax consequences of your proposals with regard to the family business.

For further information on all aspects of family law, please contact our Head of Family Law, Joanna Toloczko at jtoloczko@meaby.co.uk or on 020 3861 5155.

Meaby & Co invited to take part in the Soho Society hour

Steven Eckett and Olivia Cooper were invited to take part in the Soho Society hour in a live radio broadcast that took place on 25 April 2019.
The programme is a weekly broadcast from the Soho Society that takes place on Soho Radio lasting an hour that goes out live every Thursday morning between 9am and 10am.
The broadcast was hosted by Claire Lynch and Leslie Hardcastle OBE and gave Steven and Olivia a platform to promote their work at Meaby & Co in the arenas of employment law and private client/family wealth and office.
The broadcast was fun and light-hearted and also focused on Steven and Olivia’s connections and memories of Soho and featured some interested music such as Wolf Alice, the Kaiser Chiefs and Soft Cell.
Here is a link to the podcast for your enjoyment.

If you have any questions associated with the podcast or any wider legal issues then contact Meaby & Co on 020 7703 5034.

What consents do I need for building works to my flat?

If you’re considering carrying out works to your property, you may need to obtain consents from certain parties.  Works may need planning permission and building regulation approval.  For listed buildings, listed building consent may also be required.  Before carrying out any works, it is advisable to contact the local authority before carrying out the works to check whether such consents would be required and to obtain information regarding applying for these.

Leases often contain a covenant whereby the flat owner promises the landlord not to be in breach of planning legislation.  If you carry out works to a flat without obtaining the appropriate local authority consents such as planning permission, you would not only be risking enforcement action from the Council, but you could also be in breach of the lease.

If you own a leasehold property, then you may need to obtain the landlord’s prior written consent to carry out works.  Most flat leases contain a covenant whereby the leaseholder must obtain the landlord’s consent for certain works.  This particular covenant varies from lease to lease.  Some  leases will only require the landlord’s consent for structural alterations and additions such as removing a structural wall or adding an extension.  Some leases require the landlord’s consent for any alterations, even more minor works such as removing a partition wall or replacing a kitchen.  Some leases go into particular detail and provide a list of works that require consent.

Before carrying out works to your flat, it is advisable to read your lease to check whether you will need to obtain landlord’s consent before you start the works.

If you carry out works without any necessary landlord’s consent, then the landlord could take action for breach of the covenant in the lease which could result in costs and/or you could be ordered to reinstate the property to its original state.

Even if the landlord does not notice the works, lack of landlord’s consent could cause problems when you come to sell.  A buyer’s solicitors will ask to see a copy of the landlord’s consent for any works which require consent under the lease and will not proceed to exchange until this has been received or resolved.  Applying for retrospective consent is a possibility but would carry some risk.  The process could take some time as the landlord make require forms to be completed, costs to be paid and plans and specifications to be provided.  The landlord would likely want their surveyor to inspect the property as part of the application for consent.    The landlord could also require their solicitors to draw up a formal licence for alterations and ask you to pay their costs.  This process could cause a delay in exchange.  There is no guarantee that an application for retrospective consent will be successful.  The landlord could refuse consent and could order the property to be reinstated.  If the property is ordered to be reinstated to its former state, the buyer would have to decide whether to proceed in view that the property will not be the same as when they originally made their offer.  The buyer may consider asking for a price reduction if he feels that the unauthorised works that had been carried out increased the value of the property.

Another option could be to purchase an indemnity policy which is a legal insurance policy which should cover the owner of the property for costs or loss in value of the property in the event that the landlord seeks enforcement action as a result of landlord’s consent not being obtained.  This is not as adequate as having landlord’s consent but is a quick and easy solution to the problem and enables a quicker exchange.  Usually the legal insurer will only agree to cover works that are over a year old.  The indemnity policy is normally issued on the basis that contact has not been made with the landlord regarding the works and that an application for consent has not been made.  This means that if the seller contacts the landlord regarding the works during the transaction or makes a retrospective application for landlord’s consent which is delayed or refused, then it will be unlikely that a legal insurer will agree to provide an indemnity policy.  If the landlord is aware of the breach and an indemnity policy cannot be offered, then the buyer would have to decide whether to proceed in view of the breach, try to renegotiate the purchase price or to pull out.  If the buyer is buying with a mortgage, then the matter would need to be referred to the lender who could potentially decline to lend.

In view of the potential risks above, it is advisable to make sure that you obtain any required consents before carrying out works to your property.

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

 

IR35 provisions. Flawed application, or a sea-change in “contractor” classification?

IR35 is the United Kingdom’s anti-avoidance tax legislation designed to tax disguised employment at a rate similar to employment. Its application has been the subject of much recent case law as HMRC has belatedly attempted to address the common practice of contractors, who were “employees” in all but name, self-designated themselves to their tax advantage and to the exchequer’s disadvantage. The clampdown was intended to reduce the prospects of a servant successfully claiming that they were merely a contractor, so paying less tax and National insurance Contributions than they would if they were an employee.

Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497 has provided the criteria by which employees have been so categorized since that case. If:

  1. A servant agrees to a perform a service for a company in exchange for remuneration;
  2. A servant agrees, expressly or impliedly, to subject himself to the control of the company to a sufficient degree to render the company his “master,” including control over the task’s performance, means, and time; and
  3. the contractual provisions are consistent with ordinary contracts of service,

then the servant is deemed to be an “employee” and not a “contractor”.

Recent evidence indicates that to avoid any possibility of being litigated against, businesses are adopting a blanket IR35 assessment designating and taxing contractors as “employees”. For instance, Network Rail has recently taxed 810 out of 817 contractors (over 99%) working for the rail infrastructure provider as if they ere employees of the firm, regardless of the facts and circumstances of the individuals. Clearly, each individual designation should be made on a case-by-case basis and any that are not may be incorrectly designated.

The proportion of those who have been caught by the IR35 legislation in the above example far exceeds the government’s estimate that only one third of contractors would fall within its scope. The disparity between the actual and expected percentages suggests that many genuinely self-employed contractors are incorrectly being classified as employees for tax purposes, increasing both the employers’ and employees’ tax burden.

While most commentators agree that eradication of the abuse of the taxation system is a legitimate goal, critics of the rigid application of the categorization argue that it will increase the cost of hiring contractors and impede workforce flexibility. The NHS has seen many skilled contractors leave as it applied a blanket categorization, and the construction industry fears the same could happen to it for the same reason.

HMRC’s view is that the off-payroll working rules do not affect the genuinely self-employed. However, it seems increasingly that it is the contractor’s burden to prove to their paymasters that they should be designated as such. If they are unable to do so, the default position seems that increasingly they will be deemed to be “employees”.

 

Meaby & Co are lawyers experienced in all employment issues. Should you require advice on employment status, or indeed any aspect of employment law, please contact Chris Marshall on 0207 703 5034 or cmarshall@meaby.co.uk.

Employers can get financial assistance with their statutory pay obligations

Businesses of all shapes and sizes are required to make mandatory payments to their employees to cover various statutory payments that they are entitled to.   These include Statutory Maternity Pay, Statutory Paternity Pay, and Statutory Shared Maternity/Parental Pay and Statutory Adoption Pay.

The current levels of these statutory payments are as follows:

Statutory Maternity Pay/Adoption Pay

.  the first 6 weeks payable at 90% of average weekly earnings before tax.

.  the remaining 33 weeks payable at £148.68 or 90% of any lower actual weekly earnings.

Statutory Paternity Pay

.  currently £148.68 or 90% of any lower actual weekly earnings for one or two consecutive weeks’ leave.

Many businesses believe that having to make these statutory payments are a drain on their finances and profits.    It is often a reason cited why businesses are reluctant for example to hire either pregnant women or young women who may wish to start a family shortly after starting their employment.  These employment rights are viewed negatively by many businesses as opposed to being embraced and promoted.

However medium and large businesses can actually claim back 92% of the value of these statutory payments that they have paid out.  Reimbursement is achieved by deducting the gross amounts of these payments paid from the total amount of national insurance contributions due for the relevant tax month.   The additional costs over and above this level however remain a cost to the business.

Small businesses and Micro- businesses may also qualify for Small Employer’s Relief where up to 103% of these statutory payments can be reimbursed.   Up to 100% of the value of these reimbursements are made as ‘Recovery’ and a further 3% of the value as ‘Compensation’  To qualify these businesses need to have paid less than £45,000 in Class 1 National Insurance Contributions in the last tax year.

If a business is unable to afford to make these statutory payments, then they can even apply to HMRC for an advance payment.  It is advisable to apply up to four weeks before the first payment is required.

These advance payments are however repayable by the business which needs to send an Employment Payment Summary for each pay period that statutory payments are reclaimed, even where an advance payment is made by HMRC.

Unfortunately, a similar scheme ( a percentage threshold scheme) for claiming back statutory sick pay in certain circumstances was abolished on 6 April 2014.

Remember that as an Employer you are responsible for ensuring that your qualifying employees receive their entitlements to these statutory payments. Otherwise there is a real risk of legal exposure which could result in  claims being made by disgruntled employees to the employment tribunal seeking compensation for unlawful deduction of wages and potential unlawful sex discrimination.

It is also worth checking current and historical terms and conditions of employment especially for employees who may have been inherited through a TUPE transfer to see if there are any greater contractual entitlements to these and similar payments.

It is therefore highly recommended that businesses seek timely legal advice if they are unsure about their employees’ employment rights to these statutory payments.

It is also advisable to  invest in a decent payroll software package to ensure that these statutory payments  are reclaimed accurately and that the issue correct Employer Payment Summary details are filed with HMRC.

For further information contact Steven Eckett, Partner and Head of Employment on 0207 703 5034 or by e-mail seckett@meaby.co.uk