Checklist on Divorce

At Anthony Gold, we know that any divorce is stressful and that there are 101 things to think about. This will be just as much practical as technical, especially if there are children. Below is a checklist to consider when going through the separation process.

Divorce checklist

Money

In relation to the finances, some of the tasks will be set out in the court order that is drawn up. For example, how to deal with the ownership of property, bank accounts, investments, pensions and debts. However, there are other important practical points to consider which are included in the following non-exhaustive checklist:

  1. Agree if any maintenance/works needs to be done to a property and agree costs before the spouse moves out (eg. roof or boiler repair)
  2. Check and/or change any beneficiary nominations under your pension
  3. Check and/or change the nomination under any death in service benefit from your spouse to an alternative beneficiary
  4. Close or transfer joint accounts to sole name or open a new bank account if needed
  5. Close any joint credit cards
  6. Check life policies and change the beneficiary if appropriate
  7. Check medical cover for or as a spouse and whether it covers you both after separation and up to decree absolute
  8. Change any key passwords and separate financial paperwork/ID docs
  9. Notify DVLA and car insurer if you are moving
  10. Notify banks/pension providers of new address
  11. Notify vet and insurer if pets relocate address and amend microchip details
  12. Notify GP of change of address
  13. Apply for single person’s council tax
  14. Change utility bills
  15. Check what benefits you may be entitled to
  16. Consider if a change of name is necessary to ID documents
  17. Change locks to a property once ownership transferred
  18. Redirect post
  19. Change your Will or make a Will
  20. Amend or make a new Power of Attorney

The Children

You do not have to obtain a Court Order or even draft an agreement in relation to how you will care for your children. Although you may find written agreement helpful. Here is a checklist of practical items you may wish to consider:

  1. Notify childminder/nursery/school of any address change/contact details and status of parents’ relationship and ensure documents are copied to both parents if possible
  2. Notify childminder/nursery/school of who will pick up and drop off the child and when
  3. Purchase new sets of clothes/uniform/shoes/toys/books/medicine so that both homes are equipped if something is forgotten
  4. Agree any medical/health/allergy treatment that may be necessary (eg asthma inhalers) and when that is to be administered
  5. Agree on the GP and dentist to be used
  6. Work out dates/holidays/special occasions with reference to a calendar and who will hold or attend parties
  7. Work out if parents’ evenings/school events are to be attended separately, together or alternately
  8. Agree contact with grandparents and wider family members if they are to provide a caring role
  9. Consider using a parenting app such as “Our Family Wizard” or paper diary if communication is difficult

If you are thinking of separating, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at mih@anthonygold.co.uk.

 

What can be done if a vulnerable individual does not accept that they lack capacity and they refuse to comply with a capacity assessment?

This issue arose recently in a case I was assisting with. The vulnerable individual concerned was facing enforcement proceedings for failing to meet mortgage payments. They appeared to lack capacity to deal with their finances and to conduct court proceedings. In particular, they did not appear to understand information relevant to paying the mortgage, or the enforcement proceedings that followed. They were not able to retain the information provided, they could not weigh up relevant information as part of the decision-making process, and they could not clearly communicate their decision, in spite of various attempts being made to try to help them to understand the information.

In these circumstances, it would be usual to arrange an assessment of the individual’s capacity. In this case, it was relevant to assess capacity to deal with their property and financial affairs and to conduct the court proceedings. A capacity assessment can be undertaken by a psychiatrist, psychologist or other medical practitioner who is familiar with the individual and who has knowledge of mental capacity and the legal tests that apply. Some social workers are accredited to undertake capacity assessments. Opinions can also be sought from family or carers, particularly if there is a lack of medical evidence. The purpose of the capacity assessment is to determine whether the individual has capacity to make the particular decision(s) in question.  If the person assessing capacity agrees that the vulnerable individual lacks capacity to deal with their property and finances and to conduct court proceedings (confirming this in a COP3 form) it is possible to make an application to the Court of Protection to become a property and financial affairs deputy for the vulnerable individual. If the application is successful, the deputy then has authority to make financial decisions on behalf of the vulnerable party that are in their best interests. The deputy order can also include authority to become litigation friend to the vulnerable individual. This gives authority to the deputy to conduct court proceedings on behalf of the vulnerable individual.

In the case I was assisting with, the vulnerable individual did not accept that they lacked capacity to deal with their property and finances or conduct court proceedings. They also refused to comply with a capacity assessment. What can be done to deal with such situations since a court cannot compel an individual to comply with a capacity assessment?  If there is any doubt as to whether someone involved in a court case has capacity to make the decision in question, it is necessary for the court proceedings to be put on hold (stayed) until the issue is resolved. The vulnerable person needs to be notified that their capacity is in issue, so that they have the opportunity to arrange their own representation and possibly challenge the decision before a judge.   It is possible for the judge to compel witnesses to attend court. This can include medical witnesses and either/ both of the parties involved in the court case.  The judge can also request relevant documents.   If there are problems in obtaining medical evidence the judge can ask the Official Solicitor to make inquiries and report to the court on capacity issues.  Ultimately, the judge determines whether an individual has capacity. The judge makes the decision based on evidence, including medical evidence and evidence from those who know the individual, as well as based on their own observations of the individual. If there is a dispute about capacity the judge decides the issue as a question of fact on the balance of probabilities.

If the vulnerable individual lacks capacity, and there is no one else suitable who can act as litigation friend for them in court proceedings, the Official Solicitor can be invited to take on this role as a last resort. The Official Solicitor will ask the vulnerable individual to complete a certificate as to capacity.

 

Should capacity issues be dealt with by the civil court or Court of Protection?

The civil courts can deal with decisions regarding litigation capacity. However, they cannot make decisions regarding capacity to manage financial affairs or welfare issues. The Court of Protection can deal with all of these issues, so it may be necessary for civil proceedings to be put on hold until the Court of Protection deals with relevant capacity issues and/or appoints a deputy, particularly if there are financial and/or welfare decisions that need to be made.  The Court of Protection also has wider powers than the civil courts to deal with vulnerable individuals.

If there are any concerns that one of the parties in a court case lacks capacity, this should be highlighted to the judge at the earliest opportunity. It is important to remember that someone’s capacity needs to be assessed in relation to the particular decision in question, since someone may have capacity to make certain decisions, such as in relation to their day-to-day care, but lack capacity to make decisions in relation to more complex decisions about their finances or court proceedings.

If you or a loved one require advice about issues highlighted in this blog, please get in touch with Nicola Gunn. Nicola is a partner in the Court of Protection and Family departments. You can contact Nicola on nicola.gunn@anthonygold.co.uk /0207 940 4057.

HPLA Intervention in Khan v Mehmood

The Housing Law Practitioners’ Association (HLPA) intervened in the Court of Appeal in Khan v Mehmood.

Simmons v Castle

The case of Simmons v Castle established that Claimants in personal injury, defamation, and other torts which cause suffering, inconvenience or distress to individuals, should be 10% higher than previously. This was to partially compensate Claimants for legislative changes which limited legal aid and meant that success fees in cases funded by Conditional Fee Agreements (CFAs) could no longer be paid by the Defendant and must be taken from Claimant’s damages. Simmons v Castle is routinely used by housing practitioners in housing disrepair and other cases to justify a 10% uplift on damages.

Khan v Mehmood

The landlord in Khan v Mehmood argued that the 10% uplift should not apply to disrepair cases because damages in those cases are calculated by reference to a reduction in rental value rather than by tariff.

HLPA intervened, and Eleanor Solomon of Anthony Gold Solicitors submitted witness evidence on HLPA’s behalf. HLPA’s submissions set out that the 10% uplift was routinely awarded in disrepair cases, that the uplift was intended to apply to this kind of case, and that Claimants in disrepair cases receive modest levels of damages, meaning that the 10% uplift is necessary and has a significant affect on the level of compensation they receive. HLPA also set out that the number of legal aid practitioners specialising in disrepair is falling. Representation by CFA is therefore increasingly common and necessary for potential claimants. The success fee is a vital part of the sustainability of representation for tenants, particularly for those in social housing or at the lower end of the private housing market who are unable to afford legal fees out of their own resources. Removing the Simmons v Castle uplift, and thereby reducing the level of general damages, would have an adverse impact on success fees and the availability of legal representation for such claimants.

HLPA’s submissions were accepted and the 10% uplift will continue to apply to damages in disrepair claims.

Why the Khan v Mehmood Judgment Matters

This is an important judgement, firstly because it safeguards levels of damages for tenants and leaseholders in disrepair cases. If the landlord had been successful then damages in disrepair cases would have fallen. Secondly, it recognises the issues with funding disrepair and other housing claims, and the shortage of practitioners in this area as a result. Funding of housing claims is massively threatened by Fixed Recoverable Costs, which are due to apply to most housing cases from April 2023. The judgement in Khan v Mehmood recognises that further cuts to costs or damages in disrepair cases will make funding many disrepair cases unviable, which will be a huge loss to tenants living in poor housing conditions.

 

Eleanor Solomon is a specialist in housing and property disputes. She advises tenants and leaseholders on forcing landlords to comply with their legal obligations, including making repairs. She also helps clients who are facing possession orders, homelessness or have bought a defective new build property.

Recovering possession to sell properties after section 21 notices are abolished for private landlords

Along with a number of other changes to the private rented sector including the scrapping of section 21 notices, the Government has announced that a new ground for possession will be available for landlords who wish to evict their tenants if they intend to sell their property. At the moment, there are various ways in which a landlord can obtain possession of their property through the existing Section 8 and Section 21 notice procedures. Where a landlord wants to serve a section 8 notice they must demonstrate that one of the grounds for possession applies. Currently, there is no specific ground for obtaining possession in relation to a sale of a property.

Current Procedure to recover possession

At the moment, landlords who intend to sell their properties can serve a section 21 notice on their tenants. Some landlords may wish to inform their tenants of their intentions to sell a property so that a notice seeking possession does not come as a surprise to the tenant, but when giving a section 21 notice the landlord does not need to give any reason to their tenant.

However, this process can be complicated. There are various requirements that a landlord has to satisfy before serving a valid section 21 notice on the tenant, including the need to ensure that a valid gas safety certificate, Energy Performance Certificates and How to Rent Guides were served on the tenant and if a deposit was acquired, it was protected by the landlord or their agent with a Government-backed deposit protection scheme.

This can often make it difficult for landlords or cause substantial delay in obtaining possession of a property particularly if any of the prescribed requirements have not been complied with prior to the service of a section 21 notice. It is therefore anticipated that the proposed new ground will remove any difficulties associated with the current section 21 possession procedure where the landlord wishes to sell their property.

The Government’s Proposals

Some details about how this new ground might work were published last week. The Government’s response to a consultation on the abolition of section 21 notices provides a summary of how the new ground would work. The ground would be a ‘mandatory’ ground meaning if it applies, the court dealing with a landlord’s possession claim must order the tenants to leave the property. The amount of notice landlords have to give would be two months, and in almost all circumstances, notice could not be given in the first 6 months of a new tenancy. To prevent misuse of the ground, the response says: “We will prevent the original landlord marketing and reletting the property for 3 months following the use of this ground.

What evidence is required and is there a possibility that landlords may misuse this process?

It is not clear what evidence will be required to prove a sale of the property. The White Paper makes reference to the landlord “intending” to sell a property and it could be that a landlord may only have to demonstrate their intentions by showing that the property has been marketed for sale by an estate agent. However, this could potentially lead to a misuse of the new ground – some landlords might regard this ground to be the easier option in getting possession and falsely serve a notice citing this ground, but they may then take their properties off the market once a possession order is made.

The White Paper does state that “misuse of the system or any attempt to find loopholes will not be tolerated” and the Government will look to extend the “power for councils to issue Civil Penalties Notices for offences relating to the new tenancy system”. Therefore, it is likely that the Government will introduce additional penalties or strengthen existing penalties for landlords who abuse this procedure. Landlords will still be subject to the rules relating to contempt of court where they have commenced a court claim for possession but dishonestly signed a statement of truth.

Conclusion

This details of this proposed new ground for possession will become clear when the draft text of the Renters Reform Bill has been published and it is interesting to see how the drafters of the Bill attempt to prevent abuse of this ground. We also wait to see what restrictions will be imposed on landlords when relying on this ground and the extent of evidence required to bring a successful claim.

Tamanna Begum assists with complex disputes regarding private residential property; including landlord and tenant possession proceedings, bringing appeals to the First Tier Tribunal (Property Chambers) and defending landlords and agents in property licencing and trading offences. Contact her at tamanna.begum@anthonygold.co.uk or on 020 7940 4060.

Good News for Pet Lovers – Blanket Ban on Pets to be Removed

The much-awaited fairer private rented sector white paper (“the white paper”) has finally been published. The white paper comes with good news for pet lovers who live in the private rented sector as it intends to remove the blanket ban on pets.

The white paper has set out proposals to provide tenants with a positive renting experience by allowing tenants to treat their private rented property as their own home whilst in occupation. This includes giving them the right to request to have their pet living with them and thereby giving them more freedom and choice in their own home. The government intends to bring in legislation which will prevent landlords from withholding consent for a pet to be brought into rented accommodation without a good reason. Landlords will not be able to unreasonably withhold consent when a tenant requests to rent with their pet or bring in a pet. If such a request is made, then the landlord will need to provide reasoning for any such refusal. Tenants will also be given the opportunity to challenge any refusal for permission without a good reason.

However, there is still currently a lot of uncertainty with these proposed changes. It is not clear whether the proposals will allow for just one pet or multiple pets. Furthermore, it remains to be seen what sort of process will be introduced to challenge any refusal to allow a pet at the property. It is not clear whether that will be an internal process with the landlord or a more formal route to challenge any such decision by the landlord through the Ombudsman and/or Courts.

In addition to the above, changes will also be introduced to the Tenant Fees Act 2019 to allow landlords to require any tenant who makes a request to have a pet in the Property to take out pet insurance. The purpose of this is to cover landlords for any damage to the Property by the pet under the terms of the pet insurance. Again, there is uncertainty on how this will work in practice and whether the landlord can insist on specific cover amounts to be taken out under the policy.

There is still a lot of uncertainty on how this proposed change will work in practice and whether there will be categories of pets which are more likely to be accepted by landlords than other pets. It is also not clear on what kind of reasoning will be considered a reasonable refusal by the landlord not to allow the pet. This remains to be seen.

Overall, the proposed changes are good news for tenants as those who have been unable to rent with a pet in the past will now be able to do so.

Nikki Basin specialises in property litigation including residential possession claims, deposit protection claims, breach of contract, disrepair, new build claims, co-ownership disputes, claims under Trust of Land and Appointment of Trustees Act (TOLATA) 1996 and professional negligence claims. Contact her at nikki.basin@anthonygold.co.uk or on 020 7940 4060.

Should tenants be advised to remain in unlicensed HMOs to maximise rent repayment orders?

When a tenant discovers that they are living in an unlicensed HMO it is usually not long before they realise that they can make an application to the First-tier Tribunal for a rent repayment order (RRO) against their landlord. At this point, one of the first questions to consider is when should the tenants make that application?

When should a tenant make an application for a rent repayment order?

There is no need to apply straight away – tenants have until one year from the date of their landlord’s criminal offence to make their application to the Tribunal. Many tenants choose not to apply for an RRO until they have moved out.

Reasons tenants delay making a rent repayment order

There are sensible reasons to do that. Often tenants would prefer not to start legal proceedings against their landlord while they are still living in the Property. That might be out of fear of eviction or mistreatment, or simply to avoid the awkwardness of having to interact with someone you are suing.

But there is another reason for delaying – the tribunal can award tenants up to one year’s rent, but the amount awarded will not exceed the rent paid by the tenant during the period in which the property is unlicensed. If the tenant is alleging that their landlord has committed the offence of managing or being in control of an unlicensed house in multiple occupation, the longer the property is unlicensed, the better the chances that the tenant will recover a whole year’s rent.

This means that there is a completely rational reason for tenants to keep quiet and live in an unlicensed HMO for at least 12 months before complaining to the landlord and applying for a rent repayment order – complain any earlier and the landlord will be ‘tipped off’ about their mistake. A sensible landlord would immediately apply for a licence, and that could reduce the amount of any rent repayment order.

This should make us uncomfortable. Licensing exists in part at least to ensure that rented properties are safe. The conditions of a licence will include requirements to ensure that the landlord has carried out proper safety checks, and tenants who live in an unlicensed property might not have the benefit of fire detection and alarm systems suitable for their property.

What should advisers be telling tenants?

The starting point has to be that any type of legal adviser should tell tenants the truth. That means being honest about the possible benefits of not telling the landlord about their mistake straight away, and being honest about the possible safety risks of living in an unlicensed HMO. After that, it is for tenants to decide for themselves how they want to proceed.

Legal advisers need to be careful about advising about fire safety. Most of us are not experts in fire safety, but experienced housing advisers might know something about the legal framework for fire safety in HMOs and how to interpret fire safety guidance. We might be able to point out ways in which landlords are breaching the law, but for most legal advisers it is well beyond our expertise to conduct a fire risk assessment.

For solicitors, our duty of confidentiality to our clients means that if tenants choose not to notify anyone that they are living in an HMO, we could not go against the wishes of the tenants. Most advisers will be subject to similar confidentiality obligations.

What should local authorities be telling tenants?

For local authorities, the position is very different. If local authority officers decide to write to the landlord and tell them they are managing an unlicensed HMO, they are entitled to do so.

There is a statutory duty on local authorities in section 61(4) of the Housing Act 2004 to “take all reasonable steps to secure those applications for licences are made to them in respect of HMOs in their area which are required to be licensed under this Part but are not”. A council officer knowing that an HMO is unlicensed but choosing to not do anything about that does not sit easily with that duty.

From the point of view of overstretched local authorities, Rent Repayment Orders provide a cost-effective way of ensuring that there are consequences for landlords who do not obtain a licence. This is one reason why local authorities often assist tenants who are applying for an RRO.

There are some reports of council officers agreeing not to notify landlords that they are breaching a licensing requirement. For example, in this article, a tenant describes being told by council officers that “they could apply for a Rent Repayment Order which would allow them to take their landlord to court – only if they continued living in the unfit accommodation for the year.”

It is one thing for an adviser to give this advice, but for an officer of a local housing authority to agree to allow a property to continue to be unlicensed for several months to maximise the tenant’s size of a rent repayment order is troubling to me. Local authorities are meant to enforce the law and encourage landlords to apply for licences.

How should the Tribunal respond to this?

It is the First-tier Tribunal which decides whether to make a rent repayment order and how much should be awarded.

I can think of one example of a case where the Tribunal determined that a tenant knew the property they were living in was unlicensed – in Wilson v Campbell [2019] UKUT 363 (LC) the applicant was apparently employed by Newcastle City Council as a Senior Environmental Health Technician. The landlord argued that the tenant had “made an informed decision to continue residing in a property that she was aware was unlicensed with the sole intention of being able to apply for a rent repayment order.” The First-tier Tribunal was mostly convinced, finding “the Applicant chose to live in premises that fell short of legal requirements, possibly with the intention to apply for a rent repayment order in the future”. Unimpressed by this or by the absence of any details about the tenant’s profession in their evidence, the Tribunal made only a token rent repayment order of £1.

That decision was overturned by the Upper Tribunal on the grounds that there had been a breach of natural justice because she had not been given an opportunity to explain why she did not mention her job in her application. The Upper Tribunal also queried, without making any definitive finding, whether the tenant’s failure to mention her job, her alleged knowledge that the house was unlicensed, and her alleged motivation for staying on in the property were relevant factors which did justify reducing an award.

A commenter on the Nearly Legal blog article about this case gave this update on the result of this case after it was re-heard by the First-tier Tribunal: ‘the Tribunal made an RRO of approximately £3,200 (being the full rent paid less utilities). The allegation that the applicant had moved into the property to secure an RRO was rejected having heard the “convincing” oral evidence and it was held that it would be in any case “inequitable if the Applicant was not entitled to an RRO due to any knowledge of housing law”.’

That result meant there was no need for the Tribunal to tackle head-on the question of whether consciously moving in an unlicensed HMO with the intention of applying for an RRO later is ‘misconduct’ or not. For now, at least, there is no clear indication from the Tribunal that tenants who ‘keep quiet’ to maximise their award would be doing anything wrong.

Concluding thoughts

I do see it as a problem that the rent repayment orders can incentivise tenants to tolerate potentially unsafe conditions to secure a windfall. This is bad public policy, even if it is also just a logical consequence of the way rent repayment orders operate. It would be far better if tenants did not have to make any sort of trade-off between their comfort and safety and their potential return under a rent repayment order.

Robin Stewart specialises in property litigation, especially landlord and tenant disputes, and the regulatory law relating to rented property. Contact him at robin.stewart@anthonygold.co.uk or on 020 7940 4060.

Reforming Private Renting in England

The Government published its long-awaited White Paper on reforms to the private rented sector on 16th June. Described as marking ‘a generational shift,’ the paper set outs an ambitious 12-point plan of action to reform the sector and re-balance the rights of landlords and tenants to create a fairer private renting system in England. The proposals are due to form part of the Renters’ Reform Bill that is expected to be introduced this Parliamentary session. Below we take a look at the key proposals set out in the Government’s paper. These will be explored in more detail in future blog posts.

Key proposals in the Government’s paper White Paper on reforms in Private Renting:

  1. Abolition of section 21 ‘no fault’ evictions and a new modern tenancy system

Abolishing section 21 notices, which allow landlords to evict without giving a reason, has been one of the most prominent and divisive proposals in the anticipated Renters’ Reform Bill. Despite the upheaval of the pandemic, the Government remained committed to scrapping s21 notices but little detail was provided on how this would be done and what this would mean for private sector tenancies. The White Paper reveals the Government’s plans to completely overhaul the assured tenancy regime by moving all tenants who previously had an assured tenancy or assured shorthold tenancy onto a single system of periodic tenancies. This new ‘modern tenancy system’ will give tenants greater security by preventing landlords from evicting without a reason. Furthermore, tenants will no longer be locked into fixed-term contracts but will be able to end their tenancies on two months’ notice. ASTs will be phased out with all tenants eventually transitioning to the new system following a staged implementation process. This is an ambitious proposal and suggests the Government is committed to comprehensive reform of private renting, creating a whole new tenancy regime rather than tweaking the assured tenancy system currently in place.

  1. New grounds for possession and a more efficient court process

Coupled with the Government’s plan to end no fault evictions has always been the promise to strengthen possession grounds to ensure responsible landlords are able to regain possession of their properties swiftly when they need to. The White Paper therefore sets out the Government’s aim to reform grounds for possession including introducing a new ground for landlords who wish to sell or who wish to move themselves of their family in. There are also proposals to accelerate a landlord’s ability to evict tenants causing anti-social behaviour and strengthen rent arrears grounds, including a new mandatory ground for tenants who repeatedly fall into serious arrears.

The Government has also committed to providing a more efficient court process so landlords who have a legitimate reason for gaining possession can do so more quickly. Rather than proceed with a new housing court, the Government has decided to reform the existing court system. Procedural changes adopted during the pandemic including the prioritisation of certain cases and a mediation scheme look set to become permanent features of this reformed possession process.

  1. Improving housing conditions by applying the Decent Homes Standard to the PRS

The Decent Homes Standard is a standard that applies to the social rented sector. It requires homes to be free from category 1 hazards, in a reasonable state of repair, have reasonably modern facilities and services and provide a reasonable degree of thermal comfort. The Government now intends for homes in the PRS to meet this standard. Local authorities are already under a duty to take enforcement action in relation to properties with category 1 hazards but in practice this often works reactively with tenants involving the local authority if they are unhappy with the condition of their property. It will be interesting to see how the Government proposes to enforce this standard and whether there will be a more pro-active approach to ensuring the standard is met. The White Paper refers, in the longer term, to considering whether there is scope to introduce a system of regular, independent checks, possibly even an independent regulator for the PRS. However, in the short term, it seems the Government is focused on ensuring local councils have the tools to enforce the standard and extending existing measures such as Rent Repayment Orders to include non-decent homes.

  1. New Property Portal and stronger enforcement powers for councils

The Government’s proposes to introduce a new digital Property Portal where all landlords will be required to register their properties. The Portal will then provide a single ‘front door’ for landlords to both learn about their legal responsibilities and also demonstrate their compliance. The idea is that responsible landlords will be able to easily show they are compliant and this will help them attract good tenants who will be able to carry out due diligence on their prospective landlords through the Portal. Equally, the Portal will expose landlords who fail to comply with their obligations and this will assist Councils take more effective enforcement action.

Local authorities are to be given stronger enforcement powers and, longer term, the Government’s aim is to incorporate some of the functions of the Rogue Landlord database into the Portal making details of offences publicly available. The Government also wants to address the variation in enforcement action between local councils, the so called ‘postcode lottery,’ by having greater national oversight of local authority enforcement and creating a national framework for setting fines so there is a more consistent approach to private renting.

  1. New PRS Ombudsman

Again, in an attempt to give private tenants the same rights as social tenants the Government intends to introduce a new single government-approved Ombudsman that all private landlords in England, even those who instruct agents, will be required to join. The Ombudsman’s remit will be wide dealing with complaints ranging from landlord behaviour to repairs not being carried out within a reasonable timeframe. The Ombudsman will have a range of powers including the power to compel a landlord to take remedial action and pay compensation of up to £25,000. The aim is to provide quicker and cheaper dispute resolution (use of the service will be free) and reduce the number of complaints that end up in Court. The Government states that it will retain discretionary powers to enable these decisions to be enforced through the Courts if compliance becomes a concern but ultimately there will need to be effective processes in place for tenants to enforce awards if this is to provide a realistic alternative to Court.

  1. Restricting rent increases

The Government proposes to end rent review clauses and restrict the circumstances when a landlord can increase the rent. Rent increases will only be allowed to take place once a year and the notice period will be increased to two months. Tenants will continue to be able to challenge rent increases in the Tribunal but the Tribunal will not be allowed to increase rent beyond the amount the landlord initially sought. Interestingly, the Government is also considering introducing a power limiting how much rent landlords can ask for in advance. While seeking large upfront payments may be uncommon in the sector as a whole it is a practice regularly seen in the student rental market particularly with international students.

  1. Blanket bans on letting to tenants with families and to those on benefits to be made illegal

The Government recognizes that the profile of those living in the PRS has changed significantly in the last 30 years. The PRS is now home to many people on lower incomes and households with young children. Blanket bans on renting to people on benefits, also known as ‘No DSS,’ have been declared unlawful and in breach of the Equality Act in recent county court cases but the Government now intends to legislate to make such blanket bans illegal.

  1. Giving tenants the legal right to keep pets

This is an issue that has frequently made newspaper headlines in recent years. The Government now proposes to change the law so that a landlord cannot unreasonably withhold consent when a tenant requests a pet. To allay landlord concerns, landlords will be able to require tenants to obtain pet insurance to cover pet damage and the Tenant Fees Act will be amended to make this a permitted payment. This is another component of the Government’s wider strategy to improve private tenants’ renting experience, enabling them to make their house their home.

  1. Lifetime deposits

Lifetime deposits, also known as passporting deposits, is an initiative designed to improve affordability and mobility in the sector combating the problem many tenants experience when moving of having to find a second deposit while they wait for their existing deposit to be returned. The idea of passporting deposits between tenancies has been around for a while and the Government ran a call for evidence on tenancy deposit reform in 2019. The Government’s current proposal is to monitor the development of market-led solutions in this area. It seems, therefore, that the Government is unlikely to take immediate steps to reform deposits, rather this will be kept under review with the possibility of further action in the future.

Conclusion

We will have to see how many of the Government’s proposals make it into the Renters’ Reform Bill and how many go on to become law. However, this is not the piecemeal approach to PRS reform that we have been used to seeing in recent years. This is an ambitious, even radical, agenda designed to bring about substantial change to the PRS, shifting the balance between landlords and tenants and creating a fairer tenancy system that works for the diverse range of people it serves today. There is plenty to absorb in the Government’s White Paper. Working out how to implement the proposals, considering the knock-on effect on other legislation and transitioning to a new tenancy regime will not be straightforward. Things rarely stand still in the PRS but now it seems major change is on its way.

Sarah Cummins is a specialist in residential landlord and tenant disputes. Contact her at sarah.cummins@anthonygold.co.uk or call us on 020 7940 4060.

Bird Nesting – Co-parenting Trend or Creative Solution?

Bird Nesting – Co-parenting Trend or Creative Solution?

It might be said that a reliable barometer of trends is when they become storylines in TV soaps or dramas. The ITV thriller “Our House”, adapted from a novel of the same name, starring Martin Compston and Tuppence Middleton included “bird nesting” as part of the plot. The couple were living in a large period property in London with two young children, when the wife discovers her husband “in flagrante” with their neighbour. The parties separate and decide to rent a cheap property, so that they can each take it in turns to care for the children in the family home on rotation. The family home is therefore preserved for the children and reflects what happens in the natural world which this concept takes its name from.

Bird Nesting Agreements

In order to have the best chance of success, the couple would ideally be amicable and on good terms. In the drama, the couple are seen with a third party drawing up a “Bird Nesting Agreement”. This is not something that family lawyers are routinely instructed upon and it is much more likely to come up in mediation due to the bespoke nature of this process. Nesting could also become part of a general co-parenting agreement and possibly a recital to a Court Order under the Children Act. However, it is not something a Court will order against an unwilling participant to facilitate child arrangements.

Ground Rules for Bird Nesting

In terms of a second home for the “off-duty” parent, a purchase may only be possible for reasonably well-off parents. There would also then be the issue of how that property is owned and funded (unless purchased out right) as it may be problematic to enter into another mortgage. It might be possible to make adjustments to an existing property to allow the parties to live separately. The alternative would be to live with in-laws, friends or perhaps in a house share. However, that will invariably be more of a short-term solution.

If property is to be shared, it is sensible for there to be ground rules. For example, agreements are likely to be required on the following:

  • Time spent with the children, including holidays and special occasions
  • Parenting “rules” and what boundaries are appropriate to enforce by both parents with the children to maintain consistency
  • Payment of rent, mortgage and bills
  • Purchase of groceries and the sharing of food in the respective households
  • Cleaning of the properties
  • Maintenance of the properties
  • Gardening of the properties
  • Rules about new partners
  • Changing the linen if one bed is being used in the second property
  • Care of pets (including dog walking)
  • Respecting the privacy of the other

It is easy to see how this kind of approach could succeed for the right couple but equally how it might unravel. This is what happens in “Our House” when the wife discovers the house has been sold from under her, which will not be a risk for most co-owners (absent criminal actions). Even if you are not a co-owner of a property, it is possible to register a Matrimonial Home Rights Notice to protect your position. This will mean you are notified is there is an attempted sale of the property.

It is unlikely to work if there is unresolved conflict or insufficient financial resources. In the end, it will come down to the couple and their willingness to make it work. The concept has been around for some time in the USA and data shows that this is increasing in popularity in Australia, the Netherlands and Scandinavian countries. This is likely to be more popular with younger generations as shared care becomes commonplace.

Pros and Cons of bird nesting

Advantages:

  • Preservation of a school catchment area
  • Useful transition period for the family and for the children to get used to their parents being separated
  • Provides stability for children as they can keep the same routine/bedroom/belongings/clothes and means only one set of everything needed
  • Positive for children’s mental health as can keep same friends, school and support system
  • Reduction of commute between homes for children, especially if one parent wishes to move further away
  • No need to pack a bag for the child or for things to be forgotten
  • Preservation of an appreciating asset and avoiding costs of moving/taxes, especially if London based
  • Emphasis on remaining amicable on separation and making it work for all
  • Parents carry more of the emotional burden of divorce than the children
  • Cost effective
  • Buys time and provides breathing space to reflect
  • Suits modern families

Disadvantages:

  • Difficult for parents to move on and establish a new home/life
  • Inability to achieve financial clean break while assets remain shared
  • Confusing for children and false hope of parental reconciliation
  • Lack of certainty for children and parents
  • Practical difficulties arising from sharing a home
  • Difficulties with moving on with new partners
  • Increased risk of anxiety and depression for the “off-duty” parent living in the more modest property (ie. a one-bedroom flat versus a comfortable family home)
  • Risk of poor mental health for parents
  • Limited freedom for parties and inability to cut ties and communication
  • Not viable in the long term

Bird nesting is a helpful option for separating couples but is only likely to work in the short term as the urge for certainty will be overwhelming for most. If you are thinking of trialling nesting for your family, you should always take legal advice as to the implications, risks and protections you should put in place. If you would like further information, please contact the family team at Anthony Gold LLP at mih@anthonygold.co.uk.

Limbless Association Climb of The O2 London

Written by Mumtaz Hussain

Being the business development manager for a team of personal injury and clinical negligence solicitors, it’s natural to attend networking events, but this latest one is a different kind of networking event altogether.

On a sunny and warm Friday in June. a group of volunteers and beneficiaries of the Limbless Association climbed the dome of The O2 , one of London’s most iconic landmarks.

The climb started shortly before 3pm and lasted approximately 90 minutes. The climbers were a mix of able-bodied, single amputees and bi lateral amputees, along with trained guides to help during the climb.

They all gathered at the base for their initial training talk and health and safety briefing, and to don their harnesses (they don’t let you just amble up there).

Amputees

After the climb, everyone was in high spirits and their exhilaration at their achievement was clear for all to see.

The crucial thing to bear in mind is that each amputee showed resilience, determination and incredible courage, and that’s what made this climb so special.

Amputees are a remarkable group, and their clear sense of resolve is truly inspirational. More so those whose injuries were caused as a result of someone else’s negligence, whether through a medical or surgical mistake or a car accident or accident at work. The ability to bounce back after such a life changing injury and to take on a climb like this is quite remarkable.

Our Team

Our experienced and dedicated team of personal injury and clinical negligence solicitors here at Anthony Gold regularly represents amputees and we are always great supporters of their efforts to lead full lives. That’s why navigating the legal landscape to negotiate a settlement is such a complex process.

We always strive to do our best in achieving the best possible outcome for our clients, so that they can move forward in their lives comfortably and have peace of mind, no matter what their injuries have been.

Protections for Disabled Staff in the Workplace

In recent news, Mr Daniel Jeffrey from Basildon claimed that a manager from Basildon Council, whose buildings he cleaned, purposely failed his inspections simply because he has just one arm. He alleges that this manager started calling him “bandit” because of his amputated arm and that other colleagues followed suit. Most people whether disabled or not, would find such a term offensive – and Mr Jeffrey did not view it as acceptable language.

An official letter was sent from Basildon council to Pinnacle (Mr Jeffery’s employer) asking for him to be removed from the contract. Pinnacle moved Mr Jeffery away from the Basildon contract and placed him in a London based role. Mr Jeffrey has raised his story in the press and Basildon Council are investigating these serious allegations.

Whilst these allegations are at the extreme end, we wanted to take this opportunity to remind you of the rights and protections that are in place for employees who do have a disability.

Bear with us, we are very aware that we may be stating the obvious below. Unfortunately, we are equally aware that not everyone will know what the protections are and / or what that means for them.

Firstly, what amounts to a disability?

It is important to note that there is a legal test for what amounts to a disability – however some people use the term “disability” in a wider or looser sense. We will be focussing on the stricter, legal sense in this piece.

Section 6 of the Equality Act 2010 defines disability as a “…physical or mental impairment…” whereby “…the impairment has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities.” This means that any mental or physical impairment that negatively affects a person’s day to day life can amount to a disability. Disabilities can be “visible”, such as having an amputated arm like Mr Jeffrey, but also “invisible” where the person has a condition (eg Diabetes or Irritable Bowel Syndrome “IBS”)  which may not always present themselves in an obviously physical way. Other examples of invisible disabilities are depression, anxiety, dyslexia, dyspraxia and Autism.

So, what are the protections for disabled staff?

Reasonable Adjustments – depending on the individual’s condition, there may be reasonable adjustments that they will require their workplace to make, in order to ensure that they can perform their role to the best of their ability. Section 20 of the Equality Act 2010 places the duty on employers to make those reasonable adjustments for disabled staff.

The key word here is “reasonable” because it needs to be something that can and will reasonably assist the employee but also something that can reasonably be controlled or done by the employer. For example, this might include allowing additional breaks to a person that suffers from IBS in case they need to use the loo more often, or providing different office equipment to individuals with Dyslexia or Dyspraxia. It could even be as simple as providing a different chair and / or office desk to a person with chronic back issues.

As with the definition of disability, there is no one size fits all for the adjustments that can or should be made and so it’s something to be discussed between the employer and the employee directly to see what is needed and what can be done. One point to consider is that sometimes the employee is not overly certain on what might be of assistance to them, so an Employer should always consider whether expert input (eg from an occupational health practitioner) would help.

No discrimination – it is an obvious one but a person cannot be treated any less favourably because of their disability (Sections 13 and 15 of the Equality Act 2010). This means that just because a person is disabled, it does not mean that they should be passed up for promotions or receive a lower salary increase than their counterparts. Of course, it can be the case that a person with a disability simply does not meet the same criteria in terms of their performance, for example, to obtain that higher salary increase, but their disability should have no sway in this decision.

No harassment – this one is quite similar to the no discrimination rule, but Section 26 of the Equality Act 2010 adds another layer in that a person cannot be bullied or harassed because of their disability. This means, no ‘banter’ style comments about their disability (like the alleged “bandit” comments in Mr Jeffrey’s situation), or playing particularly cruel or inappropriate pranks on  colleagues with a disability.

No Victimisation – this might seem similar to the protections for disabled staff we have already mentioned but actually Section 27 of the Equality Act 2010 is quite different. If a person does indeed face any type of discrimination or does not receive the reasonable adjustments that they should, and they raise this by way of an informal complaint or even a formal grievance, they cannot be treated less favourably because they have attempted to stand up for themselves.

How do we make sure that those rights are implemented?

We appreciate that these are difficult situations which can be embarrassing and awkward. However, the rights of individuals are strong here and there are mechanisms in place for those rights to be enforced.

If you are the person with a disability, try not to be shy or embarrassed – an open and frank conversation is usually the best way forward in these situations. If you are struggling to find a way to open up such a conversation, it could be a good idea to speak to a relevant charity or supportive colleague/friend to see if they can help get things started. This will hopefully make you feel comfortable enough to tell your employer about any disabilities and what assistance you might need from them, if any.

If you are an employer, try to create an environment where staff have the support and channels to raise matters like these. If an employer broadcasts a message to all staff that it wants to encourage a diverse and inclusive workplace, then that can encourage colleagues with disabilities to come forward.  Employers should be keen to embrace the conversations that may follow when someone declares that they have a disability and fully explore how you might be able to assist them. They might not need anything at that current moment which is absolutely fine, but then something might change and they could need something in future, so be flexible to that change. Also, make sure that the person is not disadvantaged in any way at work because of their disability, by being mistreated in any way or by missing out on opportunities.

Lastly, we always recommend appropriate diversity and inclusion training for employers. This makes sure that you are providing employees with the tools and knowledge to look after each other, protected characteristics or not (because the Equality Act 2010 covers more than disabilities) and ensures that your employees sees that you are the type of employer that is open and ready for this.

While this article is meant for informational purposes only and should not be taken as direct legal advice, should you wish to discuss protections for disabled staff or you need further advice then please do not hesitate to contact us and our expert team will gladly explore with you how we can support and assist.

Inbar Rabinovitz is an Associate Solicitor working in our Employment Team and is based in our London Bridge Office. Alongside her background in various areas of law, Inbar has been driven towards Employment Law through her passion for fairness and equality in the workplace.