News Updates

On the 25^th March 2010 HM Revenue & Customs introduced Stamp Duty Relief for first time buyers. The Finance Bill 2010 stated that any individual (or individuals if buying jointly) who purchased an interest in land where the consideration was not more than £250,000.00 and who intended to occupy the property as their main residence, were exempt from paying Stamp Duty Land tax. The relief only applied to those who had not previously owned a property, and if more than one, both of them, either freehold or leasehold, in the UK or anywhere else in the world.

This relief was only introduced for a set period and any first time buyers that are in the process of buying a property need to complete the purchase on or before the 24^th March 2012 in order to qualify. Any transaction that completes on or after the 25^th March 2012 will not benefit from the relief, irrespective of the date of exchange of contracts, and will attract Stamp Duty at the following rate:

For further information, please contact Tom Walsh.

The Government is planning to introduce charges for issuing a claim in an Employment Tribunal which, hitherto, has been free of charge.  The changes announced by Chancellor George Osborne at the Conservative Party Conference will come into force on 6^th April 2012.

Whilst the extent of the fees are yet to be confirmed, the reported figures are £250.00 to lodge a claim and £1,000.00 for listing that claim for hearing.  It appears, however, that a successful claim will see the Claimant getting their fees back.  It is also proposed that the qualification period for unfair dismissal, currently one year of continuous employment, will be extended to two years.  In other words, except in cases involving discrimination, an employee will have to show that he has worked for the employer for a continuous period of two years.

The fees which are payable to the Tribunal may be higher in cases where compensation is likely to exceed £30,000.00.  The reasons for these changes are that the Government is concerned that some small businesses are being severely affected by vexatious claims and that the changes are likely to cut the number of all kinds of Employment Tribunal claims.  The hope is that Claimants will think much harder before launching a claim in the first place.

Some years ago the qualifying period for unfair dismissal was three years of continuous employment. That was subsequently reduced to two and then to one in 1999.  So, as of 6^th April 2012 it will be going back to two years

Ian Tofts

Walsh & Company Solicitors  has secured membership to the Law Society’s Conveyancing Quality Scheme – the mark of excellence for the home buying process.

Walsh & Company underwent rigorous assessment by the Law Society in order to secure CQS status, which marks the firm out as meeting high standards in the residential conveyancing process.

Law Society President Linda Lee said that the Law Society introduced CQS to help to recognise high standards in the home buying process.

“CQS improves efficiency with common, consistent standards and service levels and enables consumers to recognise practices that provide a quality residential conveyancing service.

“Buying a home is one of the largest purchases anyone will make in their lifetime, so it is essential that it is done to the highest standard by a solicitor. There are many different conveyancing service providers out there, making it difficult for home buyers to identify those which can ensure a safe and efficient level of service.”

Thomas Walsh, Principal of Walsh & Company says: “We are delighted to have secured CQS status. It is recognition of the high standards we provide to our residential property clients and is a signal to future home buyers of the excellent service level we provide at what is often a stressful time for many people.

“The overall beneficiaries will be clients who use Walsh & Company when buying a home. They will receive a reliable, efficient service as recognised by the CQS standard.”

The scheme requires practices to undergo a strict assessment, compulsory training, self reporting, random audits and annual reviews in order to maintain CQS status. It is open only to members of the Law Society and to those who meet the demanding standards the scheme will set and has the support of the Council of Mortgage Lenders, the Building Societies Association, Legal Ombudsman and the Association of British Insurers.

In a previous article I stressed the importance of making a Will. Obviously to be able to do so, a testator has to have capacity at the time he gives instruction for this to be drawn up. What happens, then, for people who no longer have the capacity to make a Will? How can they be sure to get the treatment that they want before they die if they no longer have capacity to give instructions or make decisions themselves?

There are various options available which can help in certain circumstances.

For someone who is anxious to set out what sort of treatment they want should they become ill and lose mental capacity, a Will is not going to help them as it only deals with their property and affairs after their death. One way around this is to have a Health and Welfare Lasting Power of Attorney prepared which can set out their wishes regarding treatment, and even give the chosen attorney the right to give, or refuse, consent to life-sustaining treatment for the patient. A Lasting Power of Attorney would have to be registered before it could be used and can only be used once the donor (ie the person giving the power) had lost capacity. It is one way of putting a person’s mind at rest if they have particular concerns about what treatment they might get in such circumstances.

Alternatively, a person still having capacity could make a Living Will. This term is somewhat misleading because it is not really a Will as we know it as it is designed to operate during the person’s lifetime and not after their death. However, unlike a Lasting Power of Attorney, it does not need to be registered and may be made verbally as well as in writing, except in the context of a refusal of life-sustaining treatment when it has to be in writing and signed and witnessed by one witness. Living Will is a term commonly used to mean an advance decision to refuse treatment, including life-sustaining treatment. It needs to specify the particular treatment that should be refused and if the time comes and the donor still has the capacity to give or refuse consent, the Living Will cannot be used. Controversy has surrounded the making of Living Wills in the past but the advance refusal decision remains another option open to people who wish to set out their wishes regarding medical treatment.

In some circumstances, certain people, suffering under a mental disability and no longer having capacity, are also able to have a Will made for them. This is known as a Statutory Will. An application has to be made to the Court of Protection for an order authorising the making of such a Will but where it is deemed to be in the patient’s best interests then an order may be made. It may be that a former Will made by them when they were well needs updating with regard to beneficiaries who have died, for example, or that their former Will doesn’t mitigate their Inheritance Tax position adequately in view of current legislation. It may just be a matter of changing the patient’s existing Will or even making one for the first time when he no longer has the mental capacity to do so. This may seem somewhat strange but courts have held that for many people it is in their best interests to be remembered by their family as having done the right thing in disposing of their property by a Will.

As you can see, there are options available so as to give effect to your wishes, particularly with regard to health care and treatment, even if mental capacity becomes an issue.

Sarah Painter

On the 1^st January 2012 new laws come into force which requires the registration of septic tanks and sewage treatment plants with the Environment Agency. Living in the countryside many domestic properties are not connected to the main sewerage system but drain into a privately owned and maintained septic tank, cesspit or sewage treatment plant.

The Environmental Permitting (England and Wales) Regulations 2010 have introduced a legal requirement on all homeowners to register their septic tank, cesspit or sewage treatment plant with the Environment Agency before the 1^st January 2012.

Most householders with such private drainage will need to apply for an exemption which is free and can be done online at www.environment-agency.gov.uk as long as:

• The tank or sewage treatment plant is not near a protected or designated area for the natural environment;
• It is used to treat sewage from 11 people or less per day and the discharge goes into the ground; or
• It is used to treat sewage from 27 people or less and the discharge goes into a river or stream.

Any property that discharges into a river or stream needs to be registered now and any property that discharges into the ground needs to be registered by the 31^st December 2011.

Once a property is registered, and if the equipment meets the criteria above, an exemption will be issued, which can be transferred to a purchaser when the property is sold by contacting the Environment Agency. If an application for an exemption is not accepted, perhaps because the septic tank or sewage treatment facility is too close to a protected area, the Environment Agency will notify you and you will need to apply for a formal permit.

In the coming months buyers may start insisting that sellers obtain the necessary exemption before they will proceed to complete the transaction. This may result in transactions being delayed so householders are advised to make their applications to the Environment Agency as soon as possible.

For further advice, please contact Tom Walsh.

In April of this year the Law Society introduced a new Conveyancing Protocol. The main aim of the Protocol is to set out the obligations of both the buyer and seller on a residential transaction in such a way that it helps the clients to understand the process involved in buying or selling a home.

The Protocol is designed to increase communication and exchange of information between the solicitors to help a transaction progress smoothly as well as endeavouring to maintain high standards of professional conduct. The Protocol stipulates the use of the most up to date forms, formulae and codes which are prescribed by the Law Society, the Solicitors Regulation Authority and the Council for Licensed Conveyancers and it therefore ensures that the legal representatives are up to date with both the law.

The Protocol however does not just focus on the relationship between the solicitors but also encompasses the relationship with other professionals involved in the process such as mortgage brokers, estate agents and surveyors as it is accepted that their roles in the process can be invaluable.

Use of the Protocol by solicitors is not mandatory but is considered to be the preferred practice. Walsh & Company are committed to providing excellent service and have accordingly adopted the Conveyancing Protocol to ensure that we continue to provide an efficient and professional service to all of our clients.

For further information, please contact Tom Walsh.

In March 1994, the Lord Chancellor appointed Lord Wolf to review, and make recommendations for the reform of, the Rules of Court. At that time, the rules which applied to the High Court were known as the Rules of the Supreme Court 1965, and in the County Court, the County Court Rules 1981. Following what became known as the Wolf Reforms, there emerged a single body of Court rules covering the same procedural matters as those formerly covered by the Rules of the Supreme Court and the County Court Rules and these became known as the Civil Procedure Rules 1998 (‘the CPR’). There were exceptions however, notably, the rules governing family proceedings in the Courts.

Her Majesty’s Court Service and the Family Procedure Rules Committee were charged, in 2004, to deliver a new set of unified Family Procedure Rules for all tiers of Court. After some six years in the making, on the 6 April 2011, the new Family Procedure Rules (‘the FPR’) came into operation. These new rules relate to family proceedings across all tiers of Court dealing with family matters, namely, the High Court, the County Court and the Magistrates Court. They provide for a single set of rules of Court and codes of procedure, dovetailing with the Civil Procedure Rules 1998. So we now have the CPR and the FPR.

The four key objectives of the FPR, are the modernisation of language, streamlining of procedure and harmonisation with the CPR, a single, simply expressed unified code of practice and procedure similar to the CPR for all family proceedings and alignment at all levels in Court.

The new rules reviewed language and style and left out what was perceived as outdated language in favour of a more modern style. Gone from the new rules are such phrases as ‘cause lists’, ‘special procedure’. ‘Leave’ has been replaced by ‘permission’. ‘Ex parte’ is replaced by ‘without notice’ and ‘liberty to apply’ is replaced by ‘permission to apply to the Court’. Some of the old terminology has also been changed with more modern, user-friendly plain English, which mirrors that of the CPR. For example a Decree of Divorce is now known as a ‘Matrimonial Order’ and a Divorce Petition is now an ‘Application’ and the Petitioner is now the ‘Applicant’.

It was intended to take out words such as ‘prayer’, a phrase included in a divorce petition and ‘decree nisi’ and ‘decree absolute’. Apparently however the cost of updating the Court’s software was so prohibitive, that (certainly for the time being) the terms now remain. As far as possible, the new Family Procedure Rules have been harmonised with, and styled on the Civil Procedure Rules so that there is now one set of simply expressed rules of Court for all family proceedings.

Proceedings for ancillary relief are now no longer ‘ancillary’ to the divorce, or dissolution proceedings to which they relate. The proceedings for divorce and financial order are now separate and distinct entities. Such proceedings will now be known as ‘proceedings for a financial order’ and the term ‘financial remedy’ will apply to all such related proceedings. More revolutionary, is the fact that proceedings for a financial order will now cover a wider range of financial proceedings, rather that just divorce. The emphasis being on, at the earliest opportunity, a full and frank disclosure of the parties’ respective financial positions and proposals for settlement of financial issues.

It will be interesting to see how these new family proceedings rules will develop and it is likely, in the not too distant future, that the words ‘petition’ and ‘decree nisi’ and ‘decree absolute’ will disappear completely. The consensus of opinion is that the rules governing family proceedings have now moved into the 21st century.

Ian Tofts