Elderly people should be wary of gifting their homes to relatives while they are still alive, say Kerwoods experts.
Couples often mistakenly believe they can avoid future care home fees by passing ownership of their homes to children or other family.
But the Care Act 2014 allows local authorities to investigate whether such gifts can be considered as ‘deprivation of assets’, with no time limit on when gifts were made.
Jan Thompson, a partner at Kerwoods Solicitors with expertise in elderly clients, said: “There’s a myth that gifts made more than seven years ago are exempt from a local authority’s financial assessment of eligibility for state funding for residential care.
“But that seven-year timeline only relates to inheritance tax, and has nothing to do with care fees, as neither the Care Act nor the previous Charges for Residential Accommodation Guide state any legal time limit whatsoever.
“When you go into care, you’re asked whether you own or have ever owned a property, and if you have this is part of the financial assessment – regardless of how long ago you might have gifted your home away.”
Mrs Thompson said local authorities might consider such gifts as ‘deprivation of assets’, based on the ‘timing and motivation’.
She said: “They will decide if it was reasonably foreseeable at the time you made the gift that you might need residential care in the future, based on your medical records or pre-existing illnesses.
“And they will judge whether your motivation in making such gifts was to secure local authority funding for care.”
Mrs Thompson added that each local authority have their own rules and guidelines, and that the depth of investigations depended on their resources.
However, as an example, she said Redditch Borough Council employed its own legal team to consider potential deliberate ‘deprivation of assets’ cases.
Emma Beddows, another partner at Kerwoods with expertise in challenging care decisions, said there were additional dangers in people gifting their homes.
She said: “What if your children die before you? Their beneficiaries might decide to ask you to leave what’s now their home.
“Or what if your own children have financial difficulties, or divorce? In either case, they might be forced to sell what’s now their property, depriving you of what was once your own home.”
Ms Beddows recalled a case where a 75-year-old woman gifted her house to her son, and that he took out a mortgage on it to fund his new business. But his business failed, the house was repossessed and the woman lost the home she’d lived in for decades.
She said: “Bizarrely, the business he launched was as a clairvoyant, so he really should have seen this coming! But in all seriousness, there’s no advantage making an absolute gift of your house while living.”
Ms Beddows said it was possible to mitigate against some pitfalls by putting your home into a trust with ‘retained life interest’, which means your family don’t receive anything until after you die.
But even then, the Care Act could consider the trust as ‘disregarded capital’, and might judge it as ‘deprivation of assets’ depending on the timing and motivation.
She added: “Putting your home into a trust can be done for other reasons, such as ease of probate, but this should only be done when you’re fit and healthy, to avoid casting doubt on your motivation at the time the trust was made.”
Kerwoods Solicitors is urging elderly and vulnerable people to claim their share of what could be millions of pounds in legal fee refunds.
The advice comes after people who applied for loved ones to look after their financial affairs were charged too high a fee.
A Ministry of Justice announcement issued earlier this month has invited people to apply for refunds after its Office of the Public Guardian overcharged for Lasting Power of Attorney (LPA) arrangements between 1 April 2013 and 31 March 2017.
The announcement explains that refunds of up to £54 a time plus interest can now be claimed for each LPA made in that four-year period.
This is because the OPG was charging £110 for each LPA registration before the fee was reduced to £82 last year, and it had previously charged even higher rates.
Jan Thompson, a partner and expert in Probate and Wills at Kerwoods, said: “Public bodies like the Office of the Public Guardian are only allowed to charge break-even rates, but the LPA fee levels from 2013 to 2017 meant it was making a profit on each registration.
“The fees were reduced last year to correct this overcharge, but this still means anyone who made an LPA during those four years are owed anything between £34 and £54, and even more once interest of 0.5% has been applied.
“There were hundreds of thousands of LPA registrations in that period, and so the government may well have to make refunds totalling millions of pounds.
“The good thing is that the Ministry of Justice has been very open about this error, and Kerwoods is now advising those affected to apply for their refunds.”
Kerwoods Solicitors has welcomed new rules that mean people can buy and sell their homes online without the need for cumbersome paper deeds.
The firm's comments come ahead of changes to the Land Registration Rules on 6 April that will allow HM Land Registry to introduce fully digital conveyancing documents such as mortgages and transfers.
Veronica Du'Quesnay, head of residential conveyancing at Kerwoods, said: “This is great news and should lead to a faster and safer process for everybody involved.
“Currently, when we lodge our application with the Land Registry, especially for first registrations which must be sent via the post for completion, our application can take anything up to three months and sometimes longer.
“Therefore, anything that the Land Registry can do to speed up the registration process whilst not compromising on security will be a bonus.”
Graham Farrant, the chief executive and chief land registrar at HM Land Registry, said the changes would allow fully digital conveyancing documents with the use of e-signatures.
He said: “HM Land Registry plans to use digital technology to make conveyancing simpler, faster and cheaper while enhancing the integrity and security of the register against threats from cyber-attacks and digital fraud.
“The changes will allow HM Land Registry to build new and more flexible statutory services that have been called for by the industry, and other electronic services will improve the assistance offered to them throughout the application process.”
Ms Du'Quesnay at Kerwoods added: “More services using modern day digital technology would be welcomed by all involved.”
Kerwoods has urged property developers to prepare for a 20 per cent increase in planning fees that comes into effect later this month.
Ashley Gurr, commercial property partner at Kerwoods, was referring to a letter sent to local authorities just before Christmas by Steve Quartermain CBE, the Department for Communities and Local Government’s chief planner.
Mr Gurr said: “New government regulations mean that local planning authorities will be able to start applying this increase in planning fees from 17th January 2018.
“This means extra costs will be faced by all property developers, and they will need to adjust the business plans of various projects to make sure these changes don’t have a detrimental effect on their margins.
“This might involve increasing the price of eventual properties in future schemes or, if developments are on behalf of other organisations like housing associations, making sure these extra costs are passed on or shared.”
The new government regulations confirmed in the letter from Mr Quartermain have also introduced a range of other new fees, including:
In addition, the regulations introduce a fee of £96 for prior approval applications to permitted development rights that were introduced in April 2015 and April 2017.
These include the rights for the installation of solar PV equipment on non-domestic buildings, the erection of click-and-collect facilities within the land area of a shop and the provision of temporary school buildings on vacant commercial land for state-funded schools.
Mr Gurr added: “The hope is that these increased and new fees will be used by local authorities to improve the speed and quality of their planning services, and this is something I would urge the government to press for.
“But in the meantime, the price of planning applications is growing, and developers therefore need to ensure their business plans are robust to withstand these extra costs.”
When a business is looking to lease a new property, keeping costs down is, of course, essential. So instructing a solicitor to deal with the lease issued by the landlord can be seen as a hindrance, when you just want to get in the property and start running your business.
Some tenants may just want a solicitor to ‘cast an eye’ over the lease and go for the cheapest quote given, in the hope they can get into the property as soon as possible. Whilst appreciating the demands of business and the urgency of getting up and running as quickly as possible in a new premises, understanding the obligations and responsibilities placed on tenants by landlords within a lease is crucial, particularly as the wording and phrases used in leases do not make it obvious for tenants to appreciate what they are agreeing to.
Often it is the tenants’ repairing obligations in the lease which can cause the biggest headache, especially when the landlord or their agents mention the dreaded word ‘dilapidations’ towards the end of the lease term. Tenants can end up spending thousands of pounds which they have not budgeted for, by not realising what works the landlord can require the tenant to carry out to the property.
Tenants also need to be aware how they can deal with the property during the lease term if, for example, they wish to sub-let the property or sell their business and transfer the Lease to someone else.
Landlords normally require many conditions to be satisfied before they will consider allowing a tenant to transfer the lease to a third party, and tenants often do not realise that, even if the landlord does allow a transfer of the lease, the tenant cannot step away from his or her obligations, including financial, when the new tenant moves into the property.
Instructing an experienced commercial property solicitor who can negotiate the lease terms and point out in plain English what the tenant's obligations and liabilities are can save a lot of unwanted surprises, and allow the tenant to budget for outgoings that may otherwise unexpectedly arise during the lease term. Investing in a good solicitor at the outset can save time and money and lets you get on with the important job of running your business.
To find out more, contact Sarah Rao, Kerwoods' Head of Commercial Property, on 01527 588968; or email firstname.lastname@example.org.
Employers may find themselves paying out substantial damages if they rush to suspend staff where allegations are made against them.
Now, following a High Court hearing involving a London teacher, Kerwoods is warning that extra care needs to be taken.
In Agoreyo v London Borough of Lambeth it was reaffirmed that, although employees can be suspended when there is reasonable and proper cause, suspension is not a neutral act, particularly where it relates to qualified professionals with a vocation whose reputation can be damaged.
Ashley Gurr, employment partner at Kerwoods, said: “Confirmation that ‘suspension is not a neutral act’ could have far-reaching consequences.
“It is often the case that, where there is deemed to be potential misconduct, the employer does immediately jump to an immediate suspension in order ‘to conduct an investigation’, as was the position here.
“It is interesting to see that the courts have concluded that, particularly for certain professions, this could be deemed a breach of contract in itself owing to the potential reputational issues for the affected employee.
“As ever, the moral of the story is that before acting in haste, take professional legal advice to consider all options and the potential consequences of those options.”
Ms Agoreyo, a teacher with 15 years’ experience, was trying to control pupils aged five and six with serious behavioural issues.
She was suspended following three incidents in which she used a degree of force – teachers are permitted to use reasonable force under the Education and Inspections Act 2006 – whereby she had removed them from the classroom. No criminal proceedings were brought against her and she has not been barred from teaching.
The Court concluded that suspension was adopted as the default position, was a knee-jerk reaction, and amounted to a repudiatory breach of contract.
“It is a salutary lesson for employers,” cautioned Mr Gurr. “Employers need to think carefully and take advice rather than simply suspend as a matter of course.”
Wills will continue to be disputed by disinherited children despite a recent 'landmark ruling' from the Supreme Court, Kerwoods has warned.
Jan Thompson, head of private client at Kerwoods Solicitors, fears there will be no end to the complexities and heartache surrounding such legal battles.
Her comments follow the latest case in which a woman is to receive £30,000 from her father’s estate even though he made it clear his children should get nothing.
Elena Nahajec was awarded the figure from Stanley Nahajec’s £240,000 estate under the Inheritance (Provision for Family and Dependants) Act 1975. It came despite her having almost no contact with her father for several years before his death in 2015.
Mark Nahajec, a half-brother of Elena who was unable to work through ill-health, made a claim which was settled for £22,000. The third sibling, Philip Nahajec, made no claim.
Like the Supreme Court’s ruling in Ilott v The Blue Cross and Ors earlier this year, reasonable financial provision was the point at issue.
In that case, Heather Ilott’s mother Melita Jackson left most of her £486,000 estate to charities with which she had no real connection.
Mother-of-five Mrs Ilott, from Great Munden in Hertfordshire, who was living on state benefits when she challenged the will, was first awarded £50,000, raised on appeal to £160,000. But the Supreme Court sided with the charities and cut the award back to the original figure.
Mrs Thompson said multiple marriages, cohabitation and the number of children and step-children from different partnerships meant rows over wills, often the result of family estrangement, were becoming more commonplace.
Additionally, increased property values made potentially successful outcomes more attractive while badly-worded, self-written or DIY wills encouraged challenges to their validity.
She commented: “The likelihood of someone feeling hard done by is greater than before for all sorts of reasons surrounding the complexity of modern life.
“Indeed, with so many people reliant on borrowing, they increasingly expect and rely upon inheritances to provide for their own later years.
“It is hard to exaggerate the dismay that can be engendered if the inheritance turns out to be headed for the local cat and dogs home.”
Mrs Thompson said people today were generally more aware of the law, more litigious and less tolerant.
She urged people to ensure their will was drafted by a lawyer.
“DIY wills are dangerous and frequently lead to major problems and stress for those who remain to sort the situation out,” she said.
“Saving a few pounds by doing it yourself is a false economy.”
The splitting of assets in divorce cases is now very much in flux following a high-profile Court of Appeal hearing, Kerwoods has warned.
Stephen Priest, Kerwoods partner and family law expert, cautioned that more such challenges could now be expected.
Karen Hart had been in a relationship with John Hart, a wealthy Midlands property developer for 23 years when they first separated in 2006.
The case hit the headlines because on the one hand the former wife received £3.5 million out of total resources of just under £9.4 million despite living with another man, yet on the other hand the Court of Appeal dismissed her bid for an equal share of her and her ex-husband's assets.
Some family lawyers now predict a rise in the number of couples seeking prenuptial agreements.
Mr Priest said: “The decision was based on the pre-marriage wealth built up by Mr Hart, nevertheless it is considered unusual given this was such a long marriage.
“The courts draw a clear distinction between wealth built up during the course of a partnership and that generated prior to the marriage, and this is what has happened in this case. In most circumstances, the party that brings a significant amount of wealth to the marriage will be entitled to retain it.
“In Hart v Hart the former wife clearly felt aggrieved at her failure to receive half the assets yet some pundits have suggested that the award was generous given her new relationship.
“It will be very interesting to see where in subsequent cases the balance is struck. But clearly there are big implications for anyone getting divorced.”
Mr Priest said he agreed that this would likely encourage the further growth of pre-nuptial agreements.
Employers will need to redouble efforts to avoid workplace disputes – or face significant pay-outs.
That is the warning from Ashley Gurr, employment partner at Kerwoods.
It comes in the wake of the Supreme Court’s decision to rule the Employment Tribunal fees regime unlawful.
First introduced in 2013, fees started at around £160 and increased to between £230 and £950 for further hearings. For certain claims, they could go as high as £1,200.
It all resulted in a 70%-plus reduction in cases.
Now, though most in the sector think some sort of fee system is likely to be re-introduced eventually, the number of cases is set to rise once more.
Mr Gurr said: “Many employers will be extremely disappointed by this ruling as many would regard fees as having eliminated most vexatious claims where, it was considered, disgruntled workers were ‘trying it on’.
“There had been widespread complaints from business at the time, cost and unfairness surrounding tribunals. However, now the courts have decided that the fee system itself was unfair, employers will need to get to grips with what some will certainly regard as a return to the bad old days.
“If any had allowed their guard to drop then this is the time to become extra-vigilant once more.”
Mr Gurr said prevention of workplace disputes was vital, and that meant having good systems in place, taking quality advice and keeping up with the constant changes in employment law.
He noted: “The first rule is to ensure all workers have a contract of employment. You might think that a given but in fact a significant percentage of SMEs don’t bother.
“Having an up-to-date written set of terms will become essential should matters boil over.
“Where trouble looms, employers should follow laid down and long-established procedures and immediately take legal advice.
“In particular, redundancy can be something of a minefield while anything in the discrimination arena can prove costly.
“Many disputes that end up at tribunal could and should have been sorted had the right approach been taken at the outset.”
Mr Gurr said management training on the subject was important, while taking out legal protection insurance was another option.
So far it has been a decent summer with plenty of hot weather – just the combination to get staff and bosses alike hot under the collar, warns Kerwoods.
Disputes over holiday bookings, rows over a lack of air conditioning and controversy concerning a more relaxed approach to dress codes can set office temperatures soaring in all sorts of different ways.
Employment partner Ashley Gurr says staff shouldn’t get into heated exchanges while managers need to keep their cool.
He warned: “All sorts of myths have grown up around issues like holidays.
“Don’t go and book a £2,000 holiday, attempt to present it as a fait accompli … and then find others have already been granted those weeks and you are refused the time off.
“If it ends up costing you a packet then tough luck – you should have followed procedures.
“But equally if employers have company policies covering these areas, they must be clearly communicated to employees.”
While all workers have a legal right to a set amount of holiday each year, they can’t necessarily take holiday when they want.
Employers will usually bend over backwards to accommodate holiday requests so long as multiple requests do not risk damaging the business. A rota, ballot, or first come first served system is one option for dealing with these matters.
Workplace temperatures are greatly misunderstood.
There is no maximum workplace temperature. Instead, employers are required to ensure that the temperature in workplaces inside buildings is “reasonable”.
What is reasonable will depend on the work being undertaken and the environmental conditions of the workplace.
Whether staff can peel off clothing in the heat will depend on their employer’s official dress code and workplace culture.
“Employers set great importance by their corporate image and may take a dim view if it all begins to look like a day out on Clacton beach.
“However, at the same time, common sense must prevail when it gets very hot, and policy over practicality is not a good idea, so permit no ties and jackets etc when it is obvious the weather dictates it,” he said.
Then there is the thorny issue of holiday pay.
Mr Gurr noted: “Many businesses often struggle with the calculations for part-time workers where a pro-rata entitlement is applied.
“In short, it is important to get holiday entitlement and holiday pay right. Everyone performs better if it is a happy workplace, always helped when the sun is shining.”
A Midlands property expert has predicted that Redditch is heading towards a residential revival, with thousands of new homes due to be built.
Veronica Du'Quesnay, head of residential conveyancing at Kerwoods Solicitors, was commenting on the latest Local Plan published by Redditch Borough Council.
This shows that 6,400 new dwellings are needed in the town by 2030, with more than 1,000 of this number already built.
Ms Du'Quesnay said: “Despite everything that’s happening in the wider world, Redditch is still doing well, with money moving around and people still getting about and doing what they need to do.
“Kerwoods is becoming busier and busier handling property sales and purchases in Redditch, which shows that there are more and more homes on the market in and around the town.
“This is certainly required as the number of people and families moving to Redditch is increasing. It’s an up and coming town and needs to constantly evolve and expand to accommodate people from all sort of backgrounds.”
Ms Du'Quesnay pointed out how well Redditch was served by frequent trains and nearby motorway links to Birmingham and other larger urban areas.
She said that new building activity meant that Redditch would continue to have more affordable homes that many other commuter towns, while at the same time still being close to more affluent areas.
She said: “We’re really lucky in Redditch to be more affordable than places like Birmingham city centre and many of its sought-after suburbs, which will only be boosted by the thousands of new homes being built.
“This means we’re attractive to first-time buyers wanting to get a foot on the property ladder at that early stage in their careers and family lives.
“But we’re also close to places like Alvechurch and Barnt Green which have high-end properties, which means we can also attract established business leaders and professionals.
“And that’s what we need – a location for everyone, not a ‘them and us’ situation but a town which can provide for people of all backgrounds, helping to lift the town and raise spirits for all its dwellers.”
Ms Du'Quesnay said that expanding businesses in the Redditch area were making new homes even more attractive, as workers sought to move with increasing employment.
And she said that Redditch Borough Council would need to plan the right level of infrastructure to help support such growth, particularly in education.
She said: “Redditch is near to great rural areas, but more nurseries and schools will need to be considered if Redditch wants its new housing to attract first-time buyers.
“And with established professionals moving to places like Alvechurch and Barnt Green, the area also needs to make sure its schools can cover a wide range of children from all backgrounds.”
Ms Du'Quesnay said that residential developments were popping up all over Redditch, including the development of flats on a site opposite Kerwoods offices on Church Road.
“The new site opposite us is obviously aimed at young professionals who feel that living in a town centre is attractive but still quiet, as it’s down a side street.”
She added: “Currently, I live in Birmingham, but such is the quality of new homes that I would seriously consider moving to Redditch myself!”
Anne-Marie Harley, communications manager for Redditch Borough Council, confirmed that the town’s housing requirement is 6,400 dwellings by 2030.
She said that 1,019 of this total were already built, including 183 in the last year and 174 currently under construction.
Kerwoods has recruited a new member of staff from a solicitors’ practice in Birmingham city centre.
Sikay Chan joins Kerwoods as a residential and commercial property conveyancer, moving from T A Khoo Solicitors, where she worked as a paralegal.
Ms Chan, from Solihull, is a graduate in Communication and Media Studies from Loughborough University, and worked at T A Khoo for nearly four years.
She said: “After I graduated I worked as a receptionist and administration assistant at my sister’s workplace – Christine Lee & Co. Solicitors – and this exposure to the legal sector really interested me, particularly the conveyancing aspect as it’s so relevant to everyday life.
“After some good experience at T A Khoo, I wanted to progress professionally in the legal field of conveyancing and hopefully become qualified as a solicitor in the near future.
“Kerwoods is a long-established firm and prides itself on excellent customer care, so I wanted to be part of a team I could learn from and help contribute to their success.”
Sarah Rao, head of commercial property at Kerwoods, said: “We were really impressed with Sikay’s application and are delighted to have her working with us here at Kerwoods.”
Veronica Du'Quesnay, head of residential conveyancing at Kerwoods, said: “It’s great to see new talent from the local area, and I’m sure Sikay will quickly develop her career with us.”