Legal Aid Proposals

The following is an article written by Legal Aid Lifetime Achievement Award Winner, Solicitor and Higher Rights Advocate, Michael Burdett;

Writing in the Observer on 1st July 2012, Andrew Rawnsley said that should be “serious criminal sanctions against venal traders”. I agree but once charged, the financial assets of defendants will be frozen, and many will apply for legal aid, ie another tax-payers’ subsidy.

Fifteen years ago I proposed that legal aid should be withheld from fraudsters, and their representation should be funded by the Financial Services Authority through compulsory levies on financial institutions. The idea was dubbed “let the City pay for its own mistakes”.

I know that three ministers have successively investigated and rejected the idea on Treasury advice, presumably because it would upset the City. In view of recent events, I suggest that the idea be revisited; it could be incorporated in current legislation and the power be given to the incoming Consumer Protection and Markets Authority.

About half of the current annual criminal legal aid spend, about £500m, goes on 1% of cases, mostly long and expensive fraud trials. If those cases come out of scope the substantial savings could assist the hard-pressed civil legal aid budget and perhaps restore some of the cuts imposed by the Legal Aid Sentencing and Punishment of Offenders Act which come into force next April.

Hanne & Co Solicitors continue to assist with publicly funded cases and for further information on the above, you can email Michael Burdett. 

http://www.hanne.co.uk

COOKIES: Steps Towards Achieving Compliancy

PRE-SET-UP STEPS

Unless you can avoid using cookies altogether or unless you fall in to the exceptions from the new law requirements to (1) provide clear and comprehensive information about any cookies you are using; and, (2) obtain consent (the “Requirements”) (see page 12 of the ICO Guidance Download) (the “Guidance”), it is advisable that to take the following pre-set-up steps:

1. Check what type of cookies you use and how you use them;

2. Assess how intrusive your cookie usage is for each cookie;

3. Decide what solution to obtain consent;

4. Ensure you have an online Privacy Policy which makes reference to cookies; 

5. Ensure you have an online Cookie Policy (Note that if you merely mention cookies in your Privacy Policy, you are not doing enough. The Guidance insists on an unwavering adherence to the Requirements); and,

6. Take legal advice.

CONSENT

In view of practical and technological constraints to instigating sophisticated consent mechanisms, the Guidance acknowledges that attaining implied consent is maybe more practical than the explicit opt-in model , however, it also states how “explicit consent might allow for regulatory certainty”. It is clear that the more effort put in to satisfying Requirement (1), the more likely implied consent shall suffice for opt-in consent.

EXAMPLES

An example of explicit consent via an opt-in can be found at www.fasthosts.co.uk. Sites like www.barclays.co.uk have taken one step back but a giant step forward by not providing an immediate opt-in mechanism but by instead providing a disablement mechanism via pop-up window. A site relying solely on inferred consent currently is www.ipo.gov.uk. An almost hybrid dual option site allowing for explicit or inferred consent is www.website-express.co.uk. It is not uncommon for consent to be gained online using the terms of use or terms and conditions to which the user agrees when they register or sign up. There are other ways that have been bandied about such as reliance on the user’s pre-set browser settings or settings-led consent and browser-led consent all of which are beyond the scope of this article. 

It is evident that there are varying degrees of compliancy being adopted for the time being. The key point is that a website owner needs to be upfront with users and obtain consent by giving the user specific information about what they are agreeing to and provide them with a way to show their clear acceptance. Cookie warning messages can be displayed by way of message headers or footers or pop-up windows on the website of varying size and prominence and best practice is that they contain a link direct to the Cookie Policy. Therefore, it is understood that those setting cookies must:

1. Tell people that the cookies are there;

2. Explain what the cookies are doing;

3. Obtain consent to store a cookie on a user’s device; and,

4. Provide information in your Cookie Policy on the management and removal of cookies (or go a step further and provide a mechanism to instantly disable cookies).

COOKIE INFO IN COOKIE POLICY

Whichever method you choose to satisfy Requirement (2), in order to meet compliancy, it is advisable that you also provide a Privacy Policy wherein you reference cookies and a Cookie Policy itself wherein you can insert the Requirement (1) information, preferably presented in a table. You can find out more about what information can be used in Article 2 of 3 published by Hanne& Co under the paragraph headed “A Cookie Audit”.

CONCLUSION

Businesses need to consider the best way forward for their particular website to inform users about their use of cookies in detail and to obtain the requisite consent. The grace period expired on 26May 2012 and the law cannot be ignored! Given that the implementation of the new law is still experiencing teething problems, transparency should be the guiding principle of any business in its online activities.

Hanne & Co can help to provide you with the following:

(1) Suggested wording for a cookie warning message to be placed on your site;

(2) A Cookie Policy (and a Privacy Policy if you don’t have one);

(3) Advice and guidance on how best you can utilise these to meet the current legal obligations on a website owner; and,

(4) Undertake a review of any existing contracts you have with third party providers (or update company template precedent agreements) to ensure that you secure their commitment and agreement to be compliant with the law on cookies thereby reducing your risk.

COOKIES: Why Does the Law Care About Cookies and What Are They?

WHAT IS A COOKIE? 

A cookie is a small file, typically of letters and/ or numbers which is placed/ downloaded on to a user’s device or browser when a user visits a website. It can store and transmit information to the server of websites (re)visited from that browser/ device. 

WHY ARE THEY USED?

Cookies are widely used in order to make websites work, or work more efficiently, as well as to provide information to the owners of the website. Cookies do lots of different and useful jobs like letting a user navigate between pages efficiently, remembering a user’s preferences and generally improving a user’s browsing experience. Cookies can also be used to customise areas of online content to be more tailored to a user’s interests. When a user(re)visits a website that uses the same cookies, those cookies and the browsing device, are recognised.

A COOKIE AUDIT?

One of the two strict requirements under the Regs (see earlier article) other than (1) requiring user consent, is that for each cookie used, the website owner must(2) have “provided clear and comprehensive information about the purposes of the storage of, or access to, that information” to a user (the “Requirement/s”). This means ensuring that you include accurate and clear information about each cookie in your Privacy Policy or preferably, provide a separate Cookie Policy. Complying with this Requirement is likely to require a so-called cookie audit which might involve confirming:

1. which cookies are operating on or through your website(Name of Cookie);

2. the purpose(s) of each of these cookies(Specific Purpose);

3. what data each cookie holds(Typical Content);

4. whether it is a first or third party cookie(First party/ Third party);

5. the cookie category(Cookie Category);

6. the type of cookie i.e. session or persistent (Session/ Persistent);

7. the lifespan of any persistent cookies (Lifespan);

Together, these can be referred to as (“Cookie Identifiers”)

There are many ways to comply with this Requirement in practice. One such way is to provide a table and insert in a number of columns inserting two or more of the Cookie Identifiers listed above in bold.

TYPES OF COOKIES

Session Cookies allow a site to link the actions of a visitor during a single browser session. They expire after a browser session and are considered “less privacy intrusive” than persistent cookies.

Persistent Cookies allow one or several sites to remember details about the visitor and remain on the user’s device between sessions. They may be used for a variety of purposes including remembering users’ preferences and choices when using a site or to target advertising. 

First Party Cookies are set by the specific website visited by the user i.e. the website displayed in the URL window.

Third Party Cookies are issued by a different server to that of the domain being visited. It could be used to trigger a banner advert of a third party provider based on the visitor’s viewing habits.

COOKIE CATEGORIES

Based on the International Chamber of Commerce guide to cookie categories ICC UK cookie guide – the type of cookie used can be put into 1 of 4 categories:

1. Strictly Necessary Cookies are essential. They enable a user to move around a website and use its features, such as accessing secure areas. Without these, the requested services cannot be provided. 

These cookies don’t gather information about a user that could be used for marketing or remembering where a user has been online.

2. Performance Cookies collect information about how a user uses a website, for example which pages a user goes to most often. These cookies are only used to improve how a website works and collect anonymous information only. 

3. Functionality & Profile Cookies allow a website to remember choices that a user makes (e.g. a user’s name) and can tailor the website to provide enhanced features and online marketing content. They can remember log-in details and allow a user to watch videos. The information these cookies collect may be anonymous and they cannot track browser activity on other websites. 

4. Targeting Cookies gather information about browsing habits. They remember what websites a user has visited and share this information with other organisations to enable them to conduct behavioural advertising. Although they track visits to other websites, they don’t usually know whoa user is.

Cookies in category 1 represent the limited exception to having to comply with the Requirements and these cannot be restricted or blocked. The cookies in categories 2, 3 and 4 can be restricted or blocked.

If you would like further cookie advice or if you require a Privacy Policy and/ or a Cookie Policy tailored to your website, please contact Hanne & Co on 020 7228 0017 or at info@hanne.co.uk and ask to be referred to one of our commercial team. 

Further general information about cookies can be found at:
- http://www.allaboutcookies.org

- Internet Advertising Bureau: Guide to online advertising and privacy

- International Chamber of Commerce United Kingdom: ICC UK cookie guide

- Directgov article: Internet Browser cookies – what they are and how to manage them

- ICO cookie guidance: Download the ICO guidance on Cookies

COOKIES: Why Has the Law Changed and How Can Hanne & Co Help?

WHY?

The 2002 European Directive upon which the 2003 UK Privacy and Electronic Communications Regulations were based has been revised by a 2009 EU Directive. This required the UK to implement such revisions in to its own law which it introduced on 25 May 2011 through The Privacy and Electronic Communications (EC Directive) (Amendment) Regulations 2011 (the “Regs”). The UK Information Commissioner’s Office (ICO) announced a one-year grace period thereby delaying enforcement of the Regs which expired on 26 May of 2012.

The Regs are designed to protect the privacy of information (whether the information is personally identifiable or not) and personal data which is stored or made accessible in a user’s device. The aim of the law is to prevent information being stored on devices and used to recognise the user of that device without the owner’s knowledge and consent. 

HOW?

Both the older 2003 regulations and the Regs require websites to provide visitors with clear and comprehensive information about how and why cookies are being used on a website. However, with regards to the second requirement, the 2003 regulations required websites to give users the ability to ‘opt-out’ of cookies being stored on their devices, whereas, the Regs now include a requirement to obtain consent for cookies and similar technologies. This means that cookies can no longer be stored on a user’s device unless the user specifically consents in advance. See Article 3 of 3 for more on consent.

EXCEPTIONS TO THE RULE

There are exceptions to the rule, for example, unless a website solely uses cookies that fall in to the “strictly necessary” category in accordance with the 4 categories, based on the ICC UK cookie guide , a website is legally bound to abide by the new requirements. For example, using cookies to remember items in an online shopping basket for the purposes of security in online banking or to help load web pages faster is regarded as “strictly necessary” and therefore does not require consent. All other common cookie usage falls in to the other three categories which all require consent of Performance; Functionality; and, Profile and Targeting). See Article 2 of 3 for further discussion on “Cookie Categories”.

As is the case with any implementation of a new rule of law enforcement that unveils a restrictive-type practice on a person’s free will, the law has been regarded by some as controversial and frustrating with practical and technological constraints being cited for the most part. Others are confident that the UK law stands a good chance of becoming easily accepted within the fabric of UK websites thereby bringing about a degree of certainty. This could be said to be largely due to the somewhat pragmatic and relaxed approach adopted by the ICO in the UK. The problem may lie more with the lack of harmonisation throughout other EU countries where a website is accessible, wherein implementation of the new rules may not be as lenient. See the ICO guidance on the new cookies regulations. 

ICO BREACHES AND SANCTIONS

It is unclear how the ICO will treat breaches of the law and how exactly it will go about enforcing compliance but it is likely that only serious breaches will lead to hefty fines of up to £500,000. However, it wouldn’t be unheard of for a regulatory authority to treat persistent breaches in a similar way. The ICO does have the power to commit an organisation to take steps towards compliance and to compel compliance (failure to do so would be a criminal offence).

THE LAW CAN CATCH YOU ANYWAY!

Regardless of the implementation of the Regs, there are existing powers in current legislation to deal with unfair trade practices under the Consumer Protection from Unfair Trading Regulations 2008 (“CPUTRs”) which is a set of UK regulations to protect consumers from unfair, misleading or aggressive marketing practices. Being technology neutral, they are not specific to the digital and online world, however, any practice used online which is deemed unfair, misleading or aggressive will fall foul of the CPUTRs which give the duty to regulators to act when a consumer is deceived about the presence of cookies, even when the information they have been given is correct. In theory, the Office of Fair Trading (OFT) has the duty to enforce the CPUTRs and individuals (not just businesses) who breach the law can be punished by up to two years in prison or a hefty fine.

Hanne & Co can help you to respond immediately to the Regulations by:

(1) Assisting you with updating your other online terms such as your Terms of Trade or Purchase Policy as well as your Privacy Policy;

(2) Providing you with suggested wording for a cookie warning message to be placed on your site as well as a Cookie Policy;

(3) Providing you with further advice as required by you.

Watch this space as the law on “Personal Data” which is also covered by separate data protection laws across Europe is also in the process of revision.

Contact us on 020 7228 0017 or at info@hanne.co.uk and ask to speak to one of our Commercial Team

To Let or Not to Let: Commentary on Property Law for Landlords

With the Olympics looming many property owners within a hop, skip and jump of the Olympic sites are racing to secure “holiday lets” and earn a packet. 

But, is booting out your current tenants or letting out your home going to get you gold or leave you trailing the pack? Hanne & Co’s Housing Law solicitors can advise you every step of the way.

The following is an overview (a non exhaustive list) of some of the things you need to think about before jumping on the Olympic lettings bandwagon.

Re-selling Gas and Electricity

If your property is individually metered and you plan to charge customers for the energy they have used, the Maximum Resale Price (MRP) regulations means that you cannot charge more per kilowatt hour than you have paid. You can add a proportion of the standing charge. Further information can be found in “The resale of gas and electricity, guidance for resellers” from the Office of Gas and Electricity Markets (Ofgem) website.

Health and Safety

You must make sure that you comply with health and safety legislation. This means that your property must be ‘reasonably safe’ i.e. that the chances of guests having an accident are minimised so far as possible. 

Fire Safety

You may need to comply with fire safety regulations. To comply with the law you will need to carry out a fire risk assessment and put in place fire precaution measures. These could include fire alarm systems and extinguishers as well as clearly signed escape routes. 

Gas and Electrical Appliances

The Gas Safety (Installation & Use) Regulations 1994, as amended, require that if you have either gas or LPG installed in your property for cooking, heating or lighting you must ensure that any work done on the installation or on appliances is carried out by registered personnel recognised by the Health & Safety Executive.

The Electrical Equipment (Safety) Regulations 1994 require that all electrical equipment you supply in your property must be safe and any risk associated with electrical equipment reduced to a minimum. Electrical equipment and appliances (such as fuses, circuit breakers, cookers, kettles and washing machines) must be maintained in a safe to use condition, as should electrical cables, sockets and plugs. 

The supply of goods occurs at the time of the tenancy contract. It is, therefore, essential that property is checked prior to the letting to ensure that all goods supplied are in a safe condition. A record should be made of the goods supplied as part of the tenancy agreement and of checks made on those goods. The record should indicate who carried out the checks and when they did so.

It is strongly advisable to have the equipment checked before the start of each let. It would be good practice to have the equipment checked at regular intervals thereafter. You should obtain and retain test reports detailing the equipment, the tests carried out and the results.

Furniture and Furnishings

You must make sure that upholstered furniture and soft furnishings meet minimum fire resistance standards and display a permanent label confirming compliance.

Other Pitfalls for Owner Occupiers

If you are thinking of renting out your home during the games then you also need to consider how that might affect your mortgage, contents and buildings insurance and whether you would be in breach of contract (for those who are leaseholders). Most household buildings and contents insurance policies do not cover commercial lettings so make sure you check with your current provider or consider obtaining additional cover for the period of the letting.

And of course, we must not forget the taxman as he will want his share of the income you generate.

Will you be stuck with your Olympic guest after the games are long gone…

What do you do if the holiday occupant does not leave. The occupier of a genuine holiday letting does not have the right to remain once their contractual term has ended. If the letting is for a fixed term then once the term has ended the landlord can peaceably evict. No court order is needed. If the letting was periodic ( ie week to week or month to month) then the occupation would first need to be brought to an end with a notice to quit. Once the notice ends the landlord can evict peaceably without the need for a Court order.

Whilst an overstaying let should not be a major obstacle for a commercial landlord, if you have let out your principal home then if the tenant does not leave when they should this could cause a great deal of inconvenience and disruption. It would be sensible to have a written agreement in place tailored to the particular letting to ensure that all parties are clear on all aspects such as rent, term, demise etc.

So, in answer to the question to let or not to let, well that depends on whether you are content to risk a potential “sea of troubles” for an “outrageous fortune”. The decision is yours.

Hanne & Co’s Housing Solicitors possess extensive experience in advising residential and commercial Landlord’s seeking to let their property. Our Housing law team are able to advise you on the wide range of legal matters relating to your letting or tenancy.

Please email info@hanne.co.uk or call 020 7228 0017 to speak to one of our housing law solicitors. Alternatively, we’re on Skype – Hannelegal and our solicitors are here to help.

By Housing Solicitor, Claire Wiles, published in Clapham Omnibus April 2012.

Free Wills Week: Hanne & Co Solicitors

Hanne & Co are taking part in the free Wills week run by Trinity Hospice from 23rd April 2012 to 27th April 2012.

During free Wills week, Hanne & Co will draft your Will for free as long as you are leaving a legacy to Trinity Hospice. To take part you should contact Nia Jones in Hanne & Co’s Wills & Trusts department and complete a Trinity pledge form which can be downloaded here. 

Legacy gifts are very important and ensure that staff at Trinity Hospice are able to continue providing expert end of life care to over 2,000 people each year. For more information on free Wills week or legacy gifts to Trinity Hospice, please click here. 

You can also contact our probate team or alternatively email one of our dedicated probate solicitors Lydia Pilati or Nia Jones. 

We’re also on Skype – Hannelegal!

Homelessness Increases by 14% in 2011

Having decreased since 2003, a small increase in the number of households accepted as homeless by local authorities in 2010 was followed by a 14% increase in 2011. 

Almost 50,000 households were accepted as homeless over that period, three quarters of which contained children. 

Clearly, this is largely due to the economic downturn, rising unemployment and the increasing demand for the limited amount of affordable housing. Changes in housing benefit regulations have also had an effect.

A relatively small proportion of households applying as homeless (around 1500) did so following repossession. However, this figure is a 44% increase on the previous year. A further 8,500 households applied as homeless following expiry of their short term private lease, itself up 30% compared to 2010. 

Changes to the housing benefit regulations, introduced in April 2011, have yet to have a full effect on many HB applicants but will begin to do so more and more over the forthcoming year. Caps on HB entitlement in the private sector can only lead to increased evictions and further homeless applications. 

There has been a slight decrease of around 6% in the number of properties made available to homeless applicants. Despite local authorities being discouraged from using B&B accommodation and there being a six week time limit for doing so, the use of this has inevitably increased and is up 37% on the figure in 2010 following several years of decreases. 

Hanne & Co’s housing law department are able to advise and assist with dealing with rent arrears, defending possession proceedings and assisting with homeless applications and challenges to local authorities decisions. Our housing solicitors are always on hand to assist, advise and support in what can be a very stressful time for any tenant. 

If you have a housing issue, please contact, one of our housing law team. Our housing solicitors, Ian Butler and Claire Wiles, can be contacted by emailing info@hanne.co.uk or by calling 020 7228 0017.

Making a Will for Will Aid

Supporting charities, both local and national, is important to Hanne & Co as demonstrated through our involvement with The Riverhouse Advice Centre and The Wandsworth Bereavement Service.

Each year in November, Hanne & Co, takes part in Will Aid, one of the UK’s most established charity Will – writing programmes. Will Aid offers the opportunity to make or update a will in return for a donation to UK and global charities. 

After a very busy and successful campaign, Hanne & Co raised £1680.00 for charity by writing Wills for local people under the scheme.

The money goes directly to Will Aid and is shared amongst nine charities: ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF and Trocaire.

Hanne & Co is proud to support Will Aid; the money raised will make a difference to those in need of help. 

Hanne & Co would like to thank all of those who attended our office during the Will Aid Campaign and contributed to this fantastic total. 

Hanne & Co are one of London’s leading law firms for Wills, trusts and probate law. Hanne & Co’s private client department offers a range of services including Will drafting, inheritance tax planning, probate law, deeds of variation and lasting power of attorney. 

For more information please visit our department’s page on our website by clicking here or call 0207 228 0017.

Hanne & Co Solicitors Examination Success

We are proud to announce two recent successful examination results for solicitors in the firm.

The first is Clare Paget, solicitor in the Criminal Department, who has attained her High Court Rights (Criminal) accreditation. Claire has practiced Criminal Law at Hanne & Co since her qualification in 1999.

The second is David Taylor, partner in the Employment Department, who has attained his Higher Court Rights (Civil) accreditation. David has had many years experience in the lower courts but now can practise in the High Court and above. 

These successes show the firm’s commitment to increasing the expertise of our solicitors so that this may benefit our clients. It also shows our commitment to the continuing education of our solicitors so that they maintain the very highest standards of current practice and law.

If you would like to instruct Claire Paget in relation to any criminal law matter then please ring on 0207 228 0017 or e-mail her at clarep@hanne.co.uk.

If you would like to instruct David Taylor in relation to any employment or commercial dispute then ring on the number above or e-mail at dxt@hanne.co.uk.

CIVIL PARTNERSHIP – Five Years On

It is both hard to believe that it is five years since civil partnerships became legal and conversely that there was a time, not so long ago, when same-sex marriages were not allowed at all. Five years on, the Office for National Statistics has published a review looking in detail at the characteristics of those entering into civil partnerships.

It is no surprise that there was a deluge of Civil Partnerships after the introduction of The Civil Partnership Act in December 2005. Most of the first Civil Partnerships were between men but this has now evened out and there are just as many women “tying the knot”.

Interestingly, civil partners are less likely to “divorce” than their heterosexual counterparts. It may well be because statistically civil partners tend to wait until they are a bit older and wiser, though according the statistics the average age is now decreasing.

Of course, the analysis over the last five years does not perhaps paint a true picture of the position. For example, those who married shortly after the Act was introduced may have been in long and strong relationships for a significant period before. They will continue to gather statistics.

It is encouraging that most British people now accept same-sex marriage but very sad indeed that fewer people approve of same-sex couples adopting children.

At Hanne & Co, we have a large family department with solicitors who can advise on all legal aspects of civil partnership including pre-nuptial agreements, dissolution and adoption. Please do call on 020 7228 0017 or email us at info@hanne.co.uk

SQUATTING – How Hanne & Co can Help

Events at Dale Farm have put squatting in the news. However, there has also been increased press coverage recently of squatters’ rights in relation to residential property following recent high profile cases including that of the Harley Street doctor, Dr. Cockerell, and his wife. 

Following a recent ruling in which the Judge ordered a London council to publish a list of the empty homes in its borough, Housing Minister, Grant Shapps, referred to proposed Government consultations on making squatting a criminal offence, stating that he wished to “shut the door on so-called squatters rights once and for all and end the misery, expense and hassle that far too many people have had to endure”. 

However, it should be noted that it is already a criminal offence to squat a person’s home or a property that a person intends to occupy as their home. This is governed by the Criminal Law Act 1977. Under that Act a home owner already in occupation of the property is termed a “Displaced Residential Occupier” and a person intending to take up occupation as a “Protected Intended Occupier”. In both cases it is a criminal offence for a squatter to remain in the property once they are made aware of the existence of either a displaced residential occupier or a protected intended occupier. In such circumstances the police have the power to arrest, without warrant, any squatter who refuses to leave after a request to do so has been made. Furthermore, the occupiers themselves are entitled to use force to re-enter and reasonable force to remove the squatters from the property.

Squatting a vacant property that is not a home is not, at present, a criminal offence. However, the person with a right to the property does have remedies in the civil courts and they are entitled to apply for an Interim Possession Order which is likely to be granted within a matter of days. Once such an order has been served on the squatters they must vacate within 24 hours. Failure to do so becomes a criminal offence in itself.

Whilst Government moves to both clarify and strengthen laws surrounding squatters are likely to be welcomed by many, it should not be overlooked that, in many circumstances, the criminal law already applies. This is in addition to the civil remedies available.

If your home or property is being squatted the experienced Housing Law solicitors at Hanne & Co are able and happy to assist. You can contact us for confidential advice and assistance on 020 7228 0017 or by email at info@hanne.co.uk

UP AND AWAY – Recent European Court Decisions on Employment Law

There have been two recent European Court of Justice judgments relating to the employment of airline pilots. Although the facts were very specific to our friends at the front of the plane some of the principles would apply to those of us sitting back in cattle class.

The first case is Williams & others-v- British Airways. This was referral to the ECJ by our own Supreme Court. The question put the ECJ was whether holiday pay could include other allowances on top of the basic pay. The ECJ decided that allowances that were paid for any "inconvenient aspect" of the job should be included in holiday pay. The example given was for flying allowances paid to pilots which should be included whereas allowances for time spent away from home may not be allowed.

The principal that exercised the ECJ was that there should be no deterrence to people taking holiday and that holiday pay should be very much akin to pay received whilst at work. This judgment may therefore be applicable to other employments where allowances are paid.

The second case again regarding pilots is Prigge and others –v- Deutsche Lufthansa AG. The ECJ held that a German rule prohibiting commercial pilots flying after the age of 60 was counter to the Equal Treatment Directive. Reasonably the Court held that air traffic safety was a legitimate objective but they were not convinced that a blanket ban on pilots over the age of 60 was proportionate especially as there are international rules allowing commercial pilots to work until the age of 65. 

Again this has general relevance as once again the Court has decided that age limits should be proportionate to their objectives. Also this judgement may give hope to some others who fancy a second career navigating between the clouds before we end up playing the harp on one of them.

Contact Hanne & Co's employment law solicitors on 020 7228 0017 for any employment law issues.

Possession Proceedings against Rioters

The Housing Department at Hanne & Co has considerable experience in representing tenants in possession proceedings. Following the recent riots a number of local authorities have indicated that they will seek to evict people convicted of riot related offences. 

Where a tenant of a local authority or a person residing or visiting that property has been found guilty of conduct causing or likely to cause a nuisance or annoyance or has been convicted of an offence in the locality of the property, then a possession order can be made by the County Court. When deciding whether or not grounds for possession have been made out the County Court would need to determine whether or not the conduct in question is likely to have caused a nuisance or annoyance or whether an offence has been committed. The conduct or offence has to be in the locality.

The fact that the rioter is not the tenant does not prevent the local authority from bringing possession proceedings. So long as that rioter is either residing with or visiting a tenant the local authority can take possession proceedings against that tenant regardless of whether the tenant knew what that person was doing.

Whilst there are various defences that can be raised in possession proceedings, given the effect on communities of the rioting, Judges are likely to consider any possession cases being brought based on these offences as being very serious. This means that it is more than possible that parents of a child who is convicted of such an offence carried out locally to where they live could face eviction even if they were unaware that their child was committing an offence.

If you are a council tenant and your local authority is bringing possession proceedings against you the Housing Solicitors at Hanne & Co are available to assist you. We are one of the few law firms in South London with a contract from the Legal Services Commission in the category of housing and we can offer public funding (previously known as Legal Aid) to clients who are eligible. We also offer competitive private rates. Contact us for confidential advice and assistance on 0207228 0017 or email info@hanne.co.uk

Criminal Sentences for Looters

It has been a number of weeks since the recent ‘looting’ disturbances that took place in town centres throughout the country. In this time, courts have dealt with unprecedented numbers of people accused of crimes relating to these disturbances. It is clear that the Courts have sought to reflect the widespread public anger in relation to these incidents through their treatment of the accused. 

The latest figures released by the Ministry of Justice show that the number of defendants remanded in custody nationally by courts has increased from a rate of 10% to 70%. For those who have been sentenced by the Magistrates’ Court, over 50% of defendants have been given prison sentences averaging four and half months each. This can be compared with a ‘normal’ rate of imprisonment of approximately 12%, and an average prison sentence of two and a half months. This increase in the use of custodial sentences has put enormous strain on the Prison Service, as the prison population has increased by 1,350 in just three weeks. 

Many defendants have had their cases sent to the Crown Court, where judges have higher sentencing powers, to be sentenced. While most of these cases have yet to be dealt with, Crown Court judges are passing longer than usual sentences in order to deter people from engaging in this disorder in the future. 

Crown Court judges are following guidance made by The Recorder of Manchester in coming to sentence offenders. These guidelines refer to the usual offences that would have taken place during incidents of ‘looting’. In the case of Regina v Carter & Others, the Recorder set out the following guidelines:

a. Organiser of riot or commercial burglaries 8 years upwards
b. Burglar who takes part in breaking into premises 4 -7 years
c. Arson, lives of others in actual danger 6 years upwards
d. Arson; otherwise 3 -7 years
e. Robbery
i. with firearm, or where serious injury caused 7 -9 years
ii. with other weapon 3 -7 years
iii. no weapon/no significant injury 2 -5 years
f. Burglar who enters after others have broken in 2 -5 years
g. Theft of goods in street 1-4 years
h. Handling
i. Professional fence 2 -5 years
ii. Receiving on streets 1 -4 years
iii. Receiving elsewhere community penalty- 3 years
i. S 47/s 20 Assaults on Police/Fire-fighters/Paramedic/Those trying to prevent crime or protect property
i. If significant injury/weapon used 3- 4 years
ii. No significant injury/no weapon 1 – 3 years
j. Violent disorder 2-4 years
k. Affray 1-2.5 years

These are applicable to first time adult offenders who have been found guilty after a trial.

Because of the Courts’ harsh sentencing policies, anyone who becomes involved in a police investigation should take immediate legal advice.  

The criminal solicitors at Hanne & Co are available to assist you either at an interview under caution at the police station, or at Court in the event that you are charged. Please contact the specialist criminal department at Hanne & Co Solicitors on 020 7228 0017, or on our 24 hour emergency mobile phone number 07710 454125.

When is a garden fork not a garden fork?

This is a question posed in the House of Lords in a very famous housing case (Street –v- Mountford) in 1985. Lord Templeman memorably stated that “a five pronged implement for manual digging is a “fork”, whatever the manufacturer chooses to call it”.

A similar question has been asked very recently by the Supreme Court in Autoclenz Ltd v Belcher . This case hinged on whether an individual was an “employee” or a self-employed contractor and therefore a “worker” for the purposes of employment legislation. The Supreme Court came to very similar view as to the Lord Templeman 26 years ago.

This case concerned 20 people who valetted cars. They paid their own tax and national insurance and also had to purchase uniforms and materials. Their contract said that they were not obliged to attend work although the original Tribunal did find that in practice they were expected to attend everyday and provide the services personally. 

However, despite all the written evidence and the fact that the Tribunal had held that these people had entered into a contract with their eyes wide open, the Supreme Court held that the reality of the relationship trumped any written contract. They were in reality obliged to provide their services themselves (albeit that there was a substitution clause in the contract) and this coupled with another accepted test of employment that of control, i.e. they were told what to do and when to do it, made them employees.

So the lesson to be learned is that the most important thing in a relationship between employer and employee is what happens in reality and not necessarily a cleverly constructed contract that seeks to preclude their status as employees. It is vital that both employers and employees/contractors are sure of the latter’s status and the implications that flow from this.

If you need advice on how the courts would interpret a situation and hence your obligations and exposure as an employer or employee then please do contact the experienced employment lawyers at Hanne & Co Solicitors on tel: 020 7228 0017 or by email to info@hanne.co.uk

Rising Rents but Added Responsibilities

Recent reports show that private sector letting rents are growing faster than sale prices in London. The average rental for a private letting in London rose 16% in 2010. 

You may be considering renting out your property or purchasing on a buy-to-let basis. However, the obligations on private landlords are considerable, ranging from compliance with the Health and Housing Safety Rating System to the regulations relating to the protection of deposits to statutory procedures for regaining possession. For example, UK Energy & Climate Secretary Chris Hulme has recently announced changes to the new Energy Bill which means from April 2016 landlords will not be able to refuse tenants, or local authorities, reasonable requests to improve their property’s energy efficiency. 

At Hanne & Co our housing department has a wealth of experience and knowledge of Landlord & Tenant law. We can provide you with sensible and cost effective advice on all aspects of private letting from drafting tenancy agreements tailored to your specific requirements to advising you on your statutory obligations as a landlord to dealing with problem tenants.

Please feel free to enquire with one of our Housing law team on +44 (020) 7228 0017, alternatively you can contact us through info@hanne.co.uk or via our website www.hanne.co.uk, and one of our experienced housing lawyers will be in touch.

Ex-Wife refused permission to relocate children to Canada

On 18 May 2011 Judges in the Court of Appeal case of MK v CK allowed the father’s appeal to stop his ex wife from moving to Canada with their children. The Court of Appeal Judges found that the lower court had not balanced the pros and cons of the mother’s application to remove the children from the jurisdiction.

In the past ten years there has been a trend by the courts to allow an application by one parent to move abroad if they had well laid plans, genuine reasons and if forced to stay they would be unhappy and the children would suffer as a result. The Court in this case carefully considered all of the facts and placed strong emphasis on the fact that both parents shared the care of their children. The unanimous ruling of the three panel Court of Appeal stressed that the only principle of law is that the welfare of children is paramount. The court in weighing the balance between the detriment to the children if they remained and the detriment that would result from a diminished relationship with their father if they relocated ruled that it was in the children’s best interests to remain in the UK

MK V CK case facts

The mother is of Canadian origin and the father of Polish origin but spent his childhood in Canada. The parties, who are both bankers, married in London in 2004. They have two daughters aged 4 and 2. The parties divorced in 2010. The parties had a shared residence order, which provided that the practical care of the children was shared by both parents. The mother applied to relocate back to Canada following the divorce as she wanted to be nearer her parents for emotional and material support.

The Court referred to the leading authority of Payne v Payne. They noted that in that case the applicant mother was the primary carer for the children. In such circumstances the court can consider that the children are dependent on the primary carer’s stability and wellbeing.

However the approach in Payne should not be adopted in cases where the practical burden of care is shared between the parents.

How can Hanne & Co help you?

Hanne & Co are one of London’s leading family law firms. Our specialist family law department possesses a wealth of experience in complex relocation proceedings. Following the Court of Appeal ruling in MK v CK it is likely that parents will seek shared care arrangements when dealing with residence applications, particularly where there is an international element e.g. one parent has ties to another country other than England and Wales. As well advising you on these issues we can also advise on other areas of Family Law such as Financial Remedies, Cohabitation, Adoption and Public Law. 

Please feel free to enquire with one of our family law team on +44 (020) 7228 0017, alternatively you can contact us through info@hanne.co.uk or via our website www.hanne.co.uk, and one of our experienced family lawyers will be in touch.

About the firm
Hanne & Co is a leading South London firm based in Clapham Junction. Established in 1898 we have a long history and outstanding reputation. As well as services in Family we are experts in Property (residential and commercial), Private Client and Wills, Employment Law, Housing, Landlord and Tenant and Crime. We have a thriving practice with our staff dedicated and committed to providing a quality service at competitive rates.

For further information please contact us at +44 (020) 7228 0017, or contact us through info@hanne.co.uk. You can also find out more about us at our website www.hanne.co.uk or visit our wikipedia page http://en.wikipedia.org/wiki/HCL_Hanne_&_Co

Challenging the Validity of a Will

Challenging the validity of a will is often very complex and many clients seek straight forward legal advice on probate practice and procedure as well as the merits of their claim. A recent judgment handed down by the High Court has provided further guidance to those seeking to challenge the validity of a will.

Following a costly seven day trial, it was ruled that Helen Blofield, in her 80s, “knew what she was doing” when she disinherited her Grandaughter from her £150,000 estate in favour of Lionel Cranfield, her former neighbour. 

Instructions were taken for the will on the 31st October 2006 by a firm of solicitors on Mrs Blofields’ behalf. Days prior to this, on the 20th October 2006, Mrs Blofield had been seen by a different firm of solicitors, who had sufficient concerns regarding her mental capacity to refuse to proceed without positive medical evidence detailing her capacity to provide instructions. 

Medical evidence is often very important in determining an individual’s capacity to provide instructions to a solicitor. Mrs Blofield had asked to change her will leaving the entirety of her estate from being in favour of her Granddaughter, Leigh Cowderoy, to that of street paver, Lionel Cranfield.

Following Mrs Blofield’s death in October 2008, Ms Cowderoy, an airline executive, sought to challenge the validity of the will which had been amended by the second firm of solicitors visited by Mrs Blofield and argued that Mr Cranfield had coerced her Grandmother into changing the will.

At the time of Mrs Blofield’s death, Ms Cowderoy had worked for an airline company and rarely saw her Grandmother. Mister Justice Morgan concluded that Mrs Blofield’s decision to amend the will was influenced by her belief that if she did so, and told Mr Cranfield that she had done so, then he would continue to visit and care for her in the subsequent years. 

Mr Justice Morgan stated that “Mrs Blofield had good days and bad days.” On hearing evidence from both sets of probate solicitors and numerous other witnesses as to Mrs Blofield’s mental capacity on and around the time of making changes to her will, he ruled that her “condition did fluctuate principally as a result of the combined effect of her medication and the consumption of alcohol” and that the 20th October was “a bad day” and it may have been that there were doubts as to Mrs Blofield’s capacity on the particular day in question.

The case highlights the importance of timing. Whilst evidence showing that the testator lacked capacity around the time of making a will can throw doubt on its validity, the determining factors will always be capacity at the time of instruction and execution. Hanne & Co’s probate solicitors are experienced in advising and representing clients who seek to challenge the validity of a will and have a wealth of knowledge in representing clients seeking advice on making an Inheritance Act claim. We are able to offer appointments without delay at very competitive rates.

If you need any advice on wills, probate and trusts, or you would like to contest a will or make a claim if you feel you have not been fairly provided for then please contact us. 

To make an appointment with our wills department please call 020 7228 0017 or email info@hanne.co.uk

Is your Child's School on Strike?

It is highly likely that a large number of schools will be on strike on Thursday 30/6/11 and on subsequent days because of the dispute between the public service unions and the government over the proposed changes to pension rights.

What is the situation when you have to take time off work because your child cannot attend school? Generally speaking any time taken off work without the employer’s explicit permission would be a breach of contract and may lead to some form disciplinary action.

However, the last government’s introduction of “family friendly policies” at work means the situation is covered under section 57A Employment Rights Act 1996 which allows employees to take a reasonable amount of time to deal with unexpected disruption of childcare arrangements in particular during a period when a school would normally have responsibility for that child.

Unfortunately for employers any disruption caused by the employee’s absence is irrelevant in determining whether the employee’s circumstances trigger this right. The employee must inform the employer as soon as possible about the reason for the absence and how long they would expect a period of absence to last. The situation regarding the strikes this week is to some extent fluid, although parents should have been informed by now whether the school will be closed or not.

It should be stressed that any time off allowed by the employer does not have to be paid.

If any employer requires advice on how to deal with this situation or if any employee suffer a detriment because of taking time off then they should not hesitate to contact the employment department lawyers at Hanne & Co on 020 7228 0017 or by email to Harry Dronfield at harryd@hanne.co.uk or David Taylor at dxt@hanne.co.uk

Hanne & Co Solicitors Re-Launch

Hanne & Co celebrated its re-launch at a private function in the Slug and Lettuce in Clapham Junction on Tuesday 21st June 2011. Members of the judiciary, other legal professionals and most importantly local businesses and charities attended the event. Representatives from all our departments, Family Law, Conveyancing, Child Care Law, Wills Probate and Trusts, Criminal Law and Employment Law were there to promote the firm and catch up with old friends and related professionals.

The evening was a roaring success and a fantastic way for local businesses to celebrate the re-launch as well as network with each other. Hanne & Co, with the generosity of its guests, raised funds for their nominated Charity, Wandsworth Bereavement.

Despite the fact that we have been in the heart of Clapham Junction for decades, we are sometimes easy to miss. Whilst we are on the main junction, we occupy the upper floors of a property with no street presence so it was great to meet local business people and point out exactly where we are. Of course, we chose the Slug and Lettuce as the venue as we are directly opposite.

A lot has changed in the world since Hanne & Co opened its doors back in 1898. But there are two challenges which businesses faced back then which are just as relevant today; tough economic conditions, and uncertainty over changing employment legislation. With the coalition announcing a review of employment laws, Hanne and Co are offering a helping hand to local businesses as part of their re-launch celebration; a free employment law “health check” to all the businesses invited. Given the success of this promotion, Hanne & Co is extending the offer until the end of August 2011. Simply contact Harry Dronfield, who is a solicitor in the Employment Law department of Hanne & Co by e-mail harryd@hanne.co.uk for further information or to book an appointment.