The Consumer Rights Act 2015

What will it do?

The new Consumer Rights Act 2015 regulates agreements between traders and consumers.

A trader is defined in the Act as a person acting for purposes relating to their trade, business, craft or profession, this includes individuals such as professionals and sole traders.   A consumer is defined in the Act as an individual person acting for purposes which are wholly or mainly outside that individual's trade, business, craft or profession.

The Act aims to protect consumer rights and provide the consumer with more remedies. Traders who do not adhere to the Consumer Rights Act 2015 could potentially leave themselves exposed to a claim by a consumer.

Why is it being introduced?

Much of the existing legislation is over 30 years old.  The aim of the Act is to update and clarify the law.

At the same time, online trading has come to the fore and there are more digital products.  The 2015 Act takes this into account and modernises the law.

When did it come into force?

The Consumer Rights Act 2015 came into force on 1 October 2015.

If you are a trader and you want to update agreements with your consumers, for example contracts or terms and conditions, or if you want any further information regarding The Consumer Rights Act 2015 then please do not hesitate to contact me.

Attila Hunter,

Solicitor in the Corporate and Company Commercial department.

The Housing and Planning Bill 2015-2016 - An Overview

One million new homes by 2020 is the promise committed to by the current government to tackle the shortage of homes in England and Wales. In support of this promise we have seen the introduction of a major new piece of legislation aimed at managing this shortage: the Housing and Planning Bill 2015-2016. As the name suggests, the Bill contains reforms pinpointed at reforming both the property and planning aspects of providing new housing and managing the current occupation of housing.

 

The Bill was presented to the House of Commons on 13 October 2015 for its first reading and appears to focus on the following points.

 

The creation of new homes is top of the agenda. New legislation in the Bill transforms the planning process, in essence giving the Secretary of State a wider scope of powers to intervene if local plans are not in place or have not ben delivered effectively. Further powers are also granted with respect to the building of new houses, namely that market discounts will be available for first time buyers, self-building will become easier and new residential developments meeting specific criteria will only be granted if requirements regarding starter homes are met.

 

One important aspect of the new Bill is the 'Permission in Principle' provision which allows land intended for development to be granted planning permission in principle. The land must be allocated for development in a certain documents to be eligible. At present this is land in the brownfield register, a development plan or neighbourhood plan document. It is intended that the Permission in Principle provision will be limited to small developments of 10 units or less.

 

The new Bill also contains provisions regarding the management of current housing, such as power for Local Planning Authorities to ban rogue landlords and further tests for individuals wishing to apply for a license to let accommodation in a house in multiple occupation. Of note there are also provisions making CPOs clearer, fairer and faster.

 

The Housing and Planning Bill provides promising new legislation which is a serious attempt by the government to tackle the planning, building and management issues of the housing shortage. Time will tell whether concepts such as the Permission in Principle and greater powers for the Secretary of State pan out into a constructive means of overcoming the housing crisis.

 

Watch this space for further updates as the Bill passes into law.

Mark Cornelius - Marathon Man!

Chelmsford Solicitor Mark Cornelius has just returned to work after completing the Berlin Marathon, raising money for Cancer Research UK with donations totalling an incredible £2,371.60!

 

 

ACQ Magazine Global Awards 2015 Winners!

We are delighted to announce that we have won the following awards in the ACQ Magazine Global Awards which are promoted by CNN International and the BBC.com.

 

 

REGIONAL LAW FIRM OF THE YEAR (ESSEX)

 

 

 

ARBITRATION LAWYER OF THE YEAR (NICK BOWMAN)

 

 

 

The ACQ have been celebrating achievements, innovation and brilliance in their annual award programmes since 2006.

 

Paris-Brest-Paris

Chelmsford Partner Graeme Provan has just returned to work after completing the Paris Brest Paris (PBP) long distance cycling event.

 

First run in 1891, the 1230-kilometer PBP, is a gruelling test of human endurance and cycling ability. Organised every four years by the host Audaz Club Parisien, the Paris-Brest-Paris Randonneurs is the oldest cycling event still run on a regular basis on the open road. Beginning on the southern side of the French capital, it travels west 600 kilometres to the port city of Brest on the Atlantic Ocean and returns along the same route.

 

Today's randonneur cyclists, while no longer riding the primitive machines used a hundred years ago over dirt roads or cobblestones, still have to face up to rough weather, endless hills, and pedalling around the clock. A 90-hour time limit ensures that only the hardiest randonneurs earn the prestigious PBP finisher's medal and have their name entered into the event's "Great Book" along with every other finisher going back to the very first PBP. To become a PBP ancien is to join a very elite group of cyclists who have successfully endured this mighty challenge.

 

The event is held in August every four years.

Congratulations Maxine!

A huge congratulations to Maxine Barrett who has just passed her Graduate Diploma in Law and she will be commencing her LPC at the University of Law in September!

FRP Triathlon Results!

Tolhurst Fisher LLP Triathlon Team.

 

 

 

 

Tolhurst Fisher entered on individual and two teams into the inaugural FRP Advisory triathlon event in aid of Little Havens. a hugely enjoyable but hot day at Gosfield Lake Resort saw 24 individuals and over 40 teams take part in a sprint triathlon.

 

our own Robert Plant was narrowly piped into second place by 30 seconds in the individual event.

 

one of our teams with Maxine Barrett, Graeme Provan and Mark Cornelius came 4th in the team event closely followed by our other team with Danny Turpin, Geoff Turpin and Laura Hotten in 12th Place.      

 

Plans are ready in place to do even better next year.......

 

We would like to pass on our congratulations and gratitude to the organisers for all their hard work in arranging such a great event and we hope that the day will raise a significant amount of money towards a very worthy cause in Little Havens.

Tolhurst Fisher in FRP Team Triathlon

We are delighted to be competing in the FRP Team Triathlon on 9th July at Gosfield Lake Resort near Halstead, in aid of Little Havens Hospice.

Tolhurst Fisher are proud to announce our athletes who will be participating in the Triathlon.

Team 1:
Graeme Provan - Cyclist
Mark Cornelius - Runner
Maxine Barrett - Swimmer

Team 2:
Aidan O'Donogue - Cyclist
Laura Hotten - Runner
Danny Turpin - Swimmer

Individual competing in all three:
Robert Plant

We wish everyone Good Luck!

Nick Bowman- Arbitration & Litigation Lawyer of the Year 2015!

CONGRATULATIONS!

Congratulations to our very own Nick Bowman who won Finance Monthly Arbitration & Litigation Lawyer of the year 2015!

Shared Parental Leave Requests – Are you ready ?

It is estimated that approximately 285,000 working couples will benefit from the new shared parental leave regime that came into force in December last year.  This gives rise to obvious questions.  How does it work in practice and how should an employer deal with a request if and when one is received ? 

Although the principle of shared parental leave is simple, the new rules are detailed and complex and have significant implications for both employers and employees. 

The intention behind the new scheme is to allow families more choice with parental care in a child’s first year.  Up until fairly recently, the choices have been limited, with the main choice being maternity leave and pay for mum and a short period of paternity leave and pay for dad. 

Under the new scheme employees retain their rights to maternity leave and paternity leave (with the exception of additional paternity leave which has been abolished).  However, mum will now be able to convert up to 50 weeks of her maternity leave and 37 weeks of her statutory maternity pay into shared parental leave and pay, and share it with her partner.  This gives greater flexibility to employees as they can now apply to take the time off together or separately, in one continuous period or discontinuously.

Naturally, there are rules and procedures that need to be followed, including employee eligibility criteria.  In this article, we aim to provide a simple overview of the new scheme, the practical requirements of the scheme and the steps that employers should be taking to implement it.  We focus primarily on the application of the new scheme in relation to the birth of a child, although the scheme for adopted children is broadly the same. 

So, who benefits from this new scheme ? 

Basically, shared parental leave is available for employees with babies born on or after 5 April 2015.   

Who is eligible for shared parental leave ?

It can be taken by a mother and someone who is either the child’s father or the mother’s spouse, civil partner or partner (as defined in the regulations) and who has the main responsibility for caring for the child.

Certain eligibility criteria have to be satisfied by both parents which vary depending on whether the employee is the mother of the child or the mother’s partner.

How much shared parental leave can be taken ?

The maximum amount of shared parental leave that can be shared between the parents is 50 weeks (or 48 weeks for factory workers).  This is calculated as the mother’s 52 weeks of maternity leave less the two weeks’ compulsory maternity leave (or four weeks’ compulsory maternity leave for factory workers).

When can shared parental leave be taken ?

Any time from the child’s date of birth to the day before the child’s first birthday.  However, mum cannot start shared parental leave until she has completed her period of compulsory maternity leave.

Each parent can take their shared parental leave as one continuous period or up to three discontinuous periods of leave.  It can be for a period as short as a week or as long as the maximum 50 weeks.  Provided that employees give sufficient and proper notice, employers cannot refuse a request for leave.

Are employees on shared parental leave protected in any way ?

Yes.  They have the same protections as those employees on maternity and paternity leave, namely:

·         The employee’s terms and conditions, other than entitlement to remuneration, are preserved during shared parental leave;

·         The employee has the right to return to the same job after shared parental leave if the total aggregate amount of leave taken by the employee is 26 weeks or less;

·         The employee has the right to return to either the same job, or if that is not reasonably practicable, a job that is both suitable and appropriate for the employee to do, in all other cases;

·         It is automatically unfair to dismiss, or select for redundancy, an employee when the reason or principal reason for the dismissal, or selection for redundancy, is connected to the shared parental leave;

·         Employees are entitled not to be subjected to any detriment by an act or failure to act by their employer for a reason connected to shared parental leave;

·         If the employee’s role becomes redundant during shared parental leave, the employee has the same priority in relation to alternative employment as applies to women on maternity leave.

What about Keeping in Touch (“KIT”) days ?

An employee may attend up to 20 shared parental leave KIT days, in addition to the 10 KIT days that a mother may take.

What about pay ?

There is an entitlement to shared parental pay, subject to the employees meeting certain eligibility criteria.  It is paid at the same rate as statutory maternity pay.  The maximum amount of shared parental leave pay that can be shared between the parents is the mother’s 37 or 35 weeks or statutory maternity pay or maternity allowance entitlement (taking into account the periods of compulsory maternity leave).   Parents can choose who will take the shared parental pay.

Can an employer offer enhanced shared parental pay ?

Yes, although this could give rise to legal as well as practical issues for the employer.  For example, a discrimination claim may arise where an employer offers enhanced maternity pay but not enhanced shared parental pay.  Further issues will arise if employers offer enhanced pay for both maternity leave and shared parental leave.  Employers also need to consider the contractual implications of reducing existing levels of enhanced pay. 

What steps should employers now be taking ?

There are a number of steps that employers should be taking.  In particular, employers should:

·         Ensure that those employees responsible for managing the scheme in their workplace are familiar with the rules and requirements of the scheme;

·         Decide on the approach to shared parental leave and shared parental pay, including, their position on enhancements, bearing in mind the potential issues relating to discrimination;

·         Implement a new shared parental leave policy and template notifications for employees to use;

·         Review and, where necessary, amend existing family rights policies, for example, maternity, paternity and adoption policies;

·         Decide how the new policies will be issued to employees; and

·         Inform appropriate employees within the organisation, for example, managers, of the new scheme so that they are aware of it and know what to do in the event of receiving queries or applications from members of their teams.

Given the potential pitfalls of the new scheme for employers, we will be running a seminar on shared parental leave.  The seminar will focus on the more detailed elements of the eligibility and practical requirements of the scheme and will in particular explore the notification obligations of both the mother and partner, both of which are quite complex.  If you would like to register your interest in attending the seminar, or if you would like to talk to us about providing some in-house training to your managers on this topic, then please e-mail Louise Smith on lsmith@tolhurstfisher.com. 


 

Does your Will contain an IHT free Nil-Rate Band Gift?

A recent Court of Appeal case highlights the importance of keeping wills under review particularly following recent changes in the law relating to inheritance tax free nil-rate bang gifts made by couples.

Loring v Woodland Trust [2014] EWCA CIV 1314

Woodland Trust recently appealed against a decision concerning the construction of a clause in a will of which Woodland Trust and the Testatrix's family were beneficiaries.

The Testatrix made her will in 2001 and gave at Clause 5 "such sum as is at the date of my death the amount of my unused nil-rate bang for inheritance tax" to her family members and the residue of her estate (i.e. the remainder) to Woodland Trust.

The amount of the Testatrix's nil-rate band was £325,000. However, her executors claimed (under the Inheritance Tax Act 1984 s.8A) to transfer her late husband's unused nil-rate band to her estate, increasing the available nil-rate bank to £650,000.

The question was whether Clause 5 included only the Testatrix's nil-rate band (meaning a legacy of £325,000 would pass to her family and the remainder of her estate - £355,805- would pass to Woodland Trust) or whether Clause 5 included the Testatrix's nil-rate band plus her husband's unused nil-rate band that had been transferred (meaning a legacy of £650,000 would pass to her family and the remainder of her estate - £30,805- would pass to Woodland Trust)?

At first instance it was held that the latter was correct and the Court of Appeal agreed.

The Court of Appeal held that 'When the Testatrix made her will she plainly did not have in mind a specific amount that she intended to pass. She intended that the gift should fluctuate with changes in the legislation'.

This ruling made a big difference to the distribution of her estate with the family receiving a larger sum than was perhaps intended?

If you have any questions about your existing will, the administration of an estate or inheritance tax generally, please contact our experienced Wills, Trust and Probate team at Tolhurst Fisher LLP.