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THE VOICE OF A CHILD

THE VOICE OF A CHILD

An announcement was made on 1 October 2021 that child witnesses in criminal court cases would be able to give evidence in pre-recorded interviews, under a new scheme announced by the Scottish Government.  In criminal cases the intention is that Police Officers and Social Workers will be able at an early stage to interview children involved in criminal trials at the High Court, to reduce distress in court when recounting experiences.

The Justice Secretary commented that the aim is to gather “the child’s best evidence

CHILD WELFARE REPORTERS - LEARN MORE

CHILD WELFARE REPORTERS - LEARN MORE

The Sheriff Court Rules state that at any stage of a family action, the Sheriff may appoint a Child Welfare Reporter to (a) seek the views of the child and report any views expressed by the child to the court; or (b) undertake enquiries and report to the court.

If you are involved in a court action in which a Child Welfare Reporter is appointed, the Reporter will probably want meet with you and your ex-partner, and with the child(ren). Sometimes the Reporter will go

Living Together? What are your rights in Scotland?

Living Together? What are your rights in Scotland?

More than three million couples in the UK live together. For any number of reasons, many do not intend to marry. However, this means if they split up, their rights are limited. If you are considering moving in with your partner, or are already living with a partner but are unmarried, here are some essential points to note:-

  1. Forget about “common law spouses”

 There is no such thing in Scotland as “common law marriage” and it should not be assumed that cohabitees have the

The benefits of Pre-nuptial Agreements

The benefits of Pre-nuptial Agreements

Pre-nuptial agreements (or more commonly referred to as a ‘pre-nups’) have become more popular over the years.  They are no longer considered to be documents used by only the wealthy or by celebrity couples.  More people now are looking to regulate their financial affairs before entering into marriage.

A pre-nuptial agreement is signed before marriage and enables a couple to decide how they wish their assets to be divided should they later decide to separate or divorce.  Although it may not be considered the most

Government to Consult on Proposals to Introduce Day-One Right for Employees to Request Flexible Working

Government to Consult on Proposals to Introduce Day-One Right for Employees to Request Flexible Working

The Department for Business, Energy and Industrial Strategy (BEIS) will shortly be publishing its consultation on extending the right to request flexible working to all employees, removing the current requirement for 26 weeks' service before doing so.

This proposal was part of the Conservative party's 2019 manifesto but the introduction of the "day one" right was delayed due to the COVID-19 pandemic.   If introduced it will allow employees to request flexibility from the outset of their employment, which will assist many more employees to better

Domestic Abuse - Civil Court Remedies

Domestic Abuse - Civil Court Remedies

The Herald reported earlier this month that domestic abuse charges reported by the police to Scottish prosecutors, which include attempted rape and serious assault, have hit a five year high. Lockdown was described by Scotland’s Law Officer, Advocate Depute Dorothy Bain QC as having a “devastating impact” for domestic abuse victims.

When there is a prosecution for an offence of domestic abuse there are often protective bail conditions put in place. It is important to be aware that there are also a number of remedies

Changes to FOI Law and COVID: What do RSLs Need to Know?

Changes to FOI Law and COVID: What do RSLs Need to Know?

The ongoing COVID-19 pandemic has been a challenge for everyone. However as lockdowns lift and vaccines begin to take effect, the Scottish Government has begun to walk back some changes in law made to accommodate the impact of the pandemic through the: Coronavirus (Extension and Expiry) (Scotland) Act 2021.

What does the Act Change?

The Act repeals a number of provisions contained in Coronavirus legislation passed in 2020 and, in particular, reverses some of the leniency around FOI compliance.

Under changes to the law made

Digital Partnerships - A Data Shake Up – Round 2?

Digital Partnerships - A Data Shake Up – Round 2?

It was announced last week that New Zealand’s privacy commissioner, John Edwards, has been named as the UK government’s preferred candidate for the next information commissioner.

Why is this significant? Well, the Government has announced that with a new Information Commissioner will come a shake-up of current data rules. On 1st January 2021, the official “transition period” governing the UK’s departure from the EU ended. With the UK set to take more steps to depart from the General Data Protection Regulation (GDPR), Digital Secretary, Oliver

What do Scotland’s new Heat Network Laws mean for RSLs?

What do Scotland’s new Heat Network Laws mean for RSLs?

The new Heat Networks (Scotland) Act 2021 (the “Act”) is not without its controversies, with correspondence released under Freedom of Information this summer showing that the Queen had lobbied the Scottish Government in order to seek changes to the Act.

But, what does this legislation mean for RSLs – both those operate heat networks and those who currently have no plans to do so? This blog will give an overview of upcoming changes that RSLs should monitor.

What is a heat network?

Heat networks

Short Term Lets – August 2021

Short Term Lets – August 2021

Despite curfews and closures, 2020 was a busy year for licensing lawyers due to the ever changing nature of restrictions introduced to combat the Coronavirus pandemic. In February 2021, the Scottish Government  withdrew the Licensing Order in relation to short-term lets from the Scottish Parliament to allow guidance to be drafted. That has now been published and the revised Civic Government (Scotland) Act 1982 (Licensing of Short-term Lets) Order 2021 (‘Licensing Order’) has been open to consultation throughout the summer. The consultation period closed on

Establishing a Charitable Trust

Establishing a Charitable Trust

A Trust is an unincorporated entity set up to hold property to be used solely for charitable purposes.  Just how do you go about establishing a charitable trust? 

The main characteristics of a Trust are as follows:

1.         It is simple to set up

2.         The Trust Deed (which is the governing document of the Trust) will identify the individuals who are the trustees responsible for the control and management of the Trust and its assets. The powers and duties of the Trust are set

What is a clearance certificate and why does the court need it for me to get my money?

What is a clearance certificate and why does the court need it for me to get my money?

You may be excused for thinking that if a public body was holding money on your behalf that they would hand it over without any hassle. Unfortunately, when it comes to the Scottish Courts and Tribunals Service, it is not as straightforward as many would hope. The court, as a public body, have to follow strict procedures to ensure they can legally release money they hold. One important procedure for the court is that they must check there are no taxes due on the funds

Interest Rates in a post–LIBOR world. Where are we heading?

Interest Rates in a post–LIBOR world. Where are we heading?

As RSLs will be aware, LIBOR will cease to be published from 31 December 2021 and those who have Loan Agreements where the interest rate is, or may be, set by reference to LIBOR will have to decide how the interest they pay on these loans will be calculated when it is no longer available.

Whilst Banks vary with regard to what they will offer, the possible alternatives suggested by the Bank of England are:

  1. SONIA (Sterling Overnight Index Average) calculated by reference to actual

Eviction for criminal convictions – Is it really mandatory?

Eviction for criminal convictions – Is it really mandatory?

On 1 May 2019, the Housing (Scotland) Act 2001 was amended to provide Registered Social Landlords (RSLs) with a mandatory ground of eviction in certain circumstances where a tenant is convicted of a crime. 

Section 16 (2)(aa) of the 2001 Act establishes a two part test for RSLs to have a mandatory ground for eviction:

  • That a tenant, joint tenant, subtenant, or a person residing, lodging or visiting the property, is convicted of an offence punishable by imprisonment committed in, or in the locality of, the

Responding to a FOI Request

Responding to a FOI Request

By now, most Registered Social Landlords (RSLs) in Scotland will have dealt with a Freedom of Information (FOI) request. It may be a more regular occurrence for some RSLs than others. Regardless if you receive one or one hundred FOI requests, each request must be dealt with in accordance with the rules set out in Freedom of Information (Scotland) Act 2002 (FOISA). To assist RSLs in following the correct process, we have created a handy checklist to which you can refer to which provides brief

CORONAVIRUS (EXTENSION AND EXPIRY) (SCOTLAND) BILL

CORONAVIRUS (EXTENSION AND EXPIRY) (SCOTLAND) BILL

To help manage the COVID-19 pandemic, the Scottish Parliament passed two Bills in 2020. These became the Coronavirus (Scotland) Act 2020 and the Coronavirus (No.2) (Scotland) Act 2020. We previously blogged about the impact each of these Acts would have on Scottish Residential Tenancies.

On 18th June 2021, the Scottish Parliament introduced a new Bill: The Coronavirus (Extension and Expiry) (Scotland) Bill. If enacted, the legislation will amend the existing Acts, which were due to expire on 30th September 2021. The legislation will

The Importance of having a Power of Attorney

The Importance of having a Power of Attorney

Hearing so many families losing loved ones and the long-term effect Covid-19 has had on their lives is distressing.  However it does highlight the importance of having a Power of Attorney in place.  Too often we hear of spouses with separate bank accounts where one of them becomes ill and the other isn’t able to deal with their accounts, their bills and other important matters at what is already a traumatic time.  So, alongside the worries of their loved one’s health they now have to

The impact of Covid-19 on guardianship applications and renewals in Scotland

The impact of Covid-19 on guardianship applications and renewals in Scotland

Although restrictions have eased there is still a significant impact, which will be felt in the coming weeks and months.

Where someone has been assessed as lacking capacity and has not put in place a power of attorney, an application requires to be made to the Court for a guardian to be appointed with legal authority for decision making in respect of the incapax adult’s health, welfare, finances and/or property. This was brought into effect some 20 years ago by the Adults with Incapacity (Scotland)

Buying or Selling Your Home: What are the Scottish Standard Clauses and what do they mean?

Buying or Selling Your Home: What are the Scottish Standard Clauses and what do they mean?

You have saved up scrupulously for months, found the property of your dreams, and now you have had your offer accepted. You are finally ready to begin moving home and you have instructed your solicitor to arrange the legalities for you.

However, there are many practical aspects to consider when moving to a new property. For example, which items within the home are to be included as part of the sale? What if any of those items are not in working order? Is the home

What is Scottish Guardianship?

What is Scottish Guardianship?

A Guardianship Order is a court order, which authorises a person to act and make decisions on behalf of an Adult with incapacity. In Scotland, an Adult is a person who is 16 years old and over. The law relating to guardianship is governed by the Adults with Incapacity (Scotland) Act 2000. It is important to seek legal advice prior to making an application for Guardianship to ensure that the appointment will benefit the Adult and that no other means provided for under the Act

Dementia Awareness Week 2021

Dementia Awareness Week 2021

Today sees the start of Dementia Awareness week in Scotland which, prior to the pandemic, would have culminated with Alzheimer Scotland’s annual conference.  Sadly, the conference will not be taking place again this year due to current restrictions.  However, during this time we can all continue to show support and continue to raise awareness for those living with dementia, their carers and families. 

Now, possibly more than ever, it is important that those living with dementia and their families know that getting their legal affairs

Lifting the Ban on Evictions in Scotland

Lifting the Ban on Evictions in Scotland

Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The ban applies in all areas which are within Tier 3 and Tier 4 of the Scottish “lockdown” levels.

The majority of mainland Scotland moved to Tier 2 on 17 May 2021 (except for Glasgow City and Moray) and some island communities moved to Tier 1. As such, the ban on enforcement of eviction orders was lifted from 17 May 2021. 

‘Special Destinations’ – not so special?

‘Special Destinations’ – not so special?

Among the excitement of purchasing a property together, the question of how the ‘title’ to the property should be taken is often only given a quick thought.

 Very little time is spent on considering what it means to include or not to include a ‘special destination’ in the title and the consequences this may have down the line.  

What is ‘joint title ’?

When a person buys a property he/she  takes ‘title’ to that property in their sole name. When two people fund a

Eviction Bans and Notice Periods: Private Sector Tenancies

Eviction Bans and Notice Periods: Private Sector Tenancies

The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) contains emergency powers relating to coronavirus and health protection in Scotland. In exercising these powers the Scottish Government have introduced rules which have afforded additional protections to tenants by increasing the notice periods required before eviction action can start and banning the enforcement of eviction orders in certain circumstances.

Eviction ban update

Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The

Eviction Bans and Notice Periods: Public Sector Tenancies

Eviction Bans and Notice Periods: Public Sector Tenancies

The Coronavirus (Scotland) Act 2020 (“the 2020 Act”) contains emergency powers relating to coronavirus and health protection in Scotland. In exercising these powers the Scottish Government have introduced rules which have afforded additional protections to tenants by increasing the notice periods required before eviction action can start and banning the enforcement of eviction orders in certain circumstances.

Eviction ban update

Since December 2020, the enforcement of eviction orders has been prohibited unless the order is based on the tenant’s antisocial behaviour or criminal activity. The

New SIC Report on the RSL Sector’s First Year in FOI

New SIC Report on the RSL Sector’s First Year in FOI

In November 2019 no one could have predicted what a difficult year 2020 would prove to be. However a new report published by the Scottish Information Commissioner (SIC) highlights that RSLs are coping well with their new FOI obligations despite the challenges raised by COVID-19.

The Report contains a number of key figures, namely:

  • 97% of RSLs and subsidiaries who responded were confident in their ability to respond to FOI requests.
  • The majority of respondents confirmed that FOI had not contributed significantly to their workloads

From LIBOR to SONIA – The pace quickens

From LIBOR to SONIA – The pace quickens

In an earlier blog we set out the basics of how the transition from LIBOR to SONIA would be effected. The matter has become more pressing as since October 2020 Banks have been providing detailed drafting to document the proposed transition and it was announced on  5 March 2021 that LIBOR as currently calculated would no longer be available from 1 January 2022. We examine some key issues below:

Spread

Although other periods are possible, LIBOR has generally been offered to the sector for periods

Upper Tribunal- Significant Decision

Upper Tribunal- Significant Decision

The practice of serving Notices to Quit by sheriff officers has recently been considered by the Upper Tribunal (UT). In a decision which will be of interest to private landlords and letting agents in Scotland the UT held it is competent for a sheriff officer to serve a notice to quit.

In 2019, Mr Henderson raised eviction proceedings in the First-tier Tribunal (FTT). The action was based on rent arrears.  An Eviction Order was granted by the FTT in October 2019. The tenant sought to

Up to date equalities training is key

Up to date equalities training is key

Many employers take steps to ensure that their staff undertake equality and diversity training within their organisations. Employers can also use this as a defence in any discrimination claims to say they have taken all “reasonable steps” to ensure that no discrimination takes place within their organisation.

However, a recent case of Allay (UK) Ltd v Gehlen, the EAT has held that an employment tribunal was entitled to reject an employer’s ‘reasonable steps’ defence to a claim of racial harassment. Although the perpetrator of the

Will employers be able to insist employees are vaccinated against Covid-19?

Will employers be able to insist employees are vaccinated against Covid-19?

The past few months has seen the roll out of the Covid-19 vaccination across the UK and while the availability and speed of the process is being questioned daily in the press, one issue which we have seen brought the foreground of discussions amongst clients is whether or not they can mandate their staff to have this vaccination.

Many employers are likely to encourage their staff to take up the vaccine, but the issue of whether this can become mandatory is an interesting one from

Ground 2 Eviction - Significant Decision

Ground 2 Eviction - Significant Decision

The Sheriff Appeal Court has just issued a decision which will be of significance to RSLs throughout Scotland. It concerns the operation of the “streamlined” eviction process in terms of ground 2 in the Housing (Scotland) Act 2001 designed to be used when tenants are convicted of criminal offences committed in or near the rented property.

Since May 2019, 2019, the “reasonableness” test has been removed from this ground meaning that the court must grant an eviction where the ground is established. However the government

New SIC Decision on RSL’s handling of FOI request

New SIC Decision on RSL’s handling of FOI request

The Scottish Information Commissioner (SIC) has recently published one of the first decision notices on a RSL’s handling of a FOI request.

Whilst the decision notice (which can be viewed here) does not answer some of the bigger questions the sector has about their new FOI duties it does act as a reminder of some key aspects of FOI compliance. So, what can RSLs learn from this decision?

What was the decision about?

The decision concerned a failure to respond to a request for

Guardianship for young adults

Guardianship for young adults

Young adults who lack capacity – guardianship orders

Any parent of a young adult who lacks capacity and is approaching 16, or has just turned 16, should take advice on whether they should apply for a guardianship order.  Until the age of 16 you have been able to make decisions on behalf of your child.  On turning 16 that automatic delegation of decision making to you, as their parent, comes to an end.  

There may be various matters you have to assist with. For example

Regulations Facilitate Adaptations to Common Parts

Regulations Facilitate Adaptations to Common Parts

Historic position

Historically when a disabled proprietor wanted to make an alteration to the common parts of a tenement to allow them to continue to use and enjoy their home by, for example, introducing a stair lift, access ramp or additional handrails by dint of the Common Law they required the consent and agreement of all other owners in the tenement to permit the change.  The introduction of the Tenements (Scotland) Act 2004 failed to provide a simplified mechanism for approving such improvement or alteration

COVID-19 and Powers of Attorney

COVID-19 and Powers of Attorney

None of us could have imagined that almost a year after we first heard the words “Covid-19” that we would still be under such restrictions, the impact this would have on the NHS and the long term effects of Covid-19.

Hearing so many families losing loved ones and the long-term effect Covid-19 has had on their lives is distressing.  However it does highlight the importance of having a Power of Attorney in place.  Too often we hear of a husband and wife with separate bank

Eviction Ban Extension

Eviction Ban Extension

We recently sent an update to confirm that evictions were being banned until 22 January 2021 - unless your Decree was granted on ground 2 and/or 7 of the Housing (Scotland) Act 2001, as amended. This is where Decree was for Antisocial Behaviour (ASB) and/or where there was a conviction.
 
It has now been announced that the existing ban will be extended until 31 March 2021. Like the previous ban it will not apply to Decrees for eviction which are granted on the ground of ASB or a conviction.

Ban on Evictions in Scotland

Ban on Evictions in Scotland

The Scottish Government announced that between 11 December 2020 and 22 January 2021, there is to be a full ban on evictions being carried out in Scotland. The ban will last for a period of six weeks and will apply to all evictions (except in cases of anti-social behaviour relating to Ground 2, Ground 7 or Ground 8 detailed in the Schedule 2 of the Housing (Scotland) Act 2001).

What does this mean?
No evictions on other grounds can proceed during the six-week period.
 
However, where

New Year To Do List - Will and Power of Attorney

New Year To Do List - Will and Power of Attorney

To do list:           

Prepare a Will                                 Tick                                      

Prepare a Power of Attorney     Tick

For most people preparing a Will and Power of Attorney are tasks that are on their never ending “to do” list and, for some, it is one task that continually gets pushed to the bottom of the list as day

Getting your affairs in order during a pandemic - the new “normal”

Getting your affairs in order during a pandemic - the new “normal”

Life has changed dramatically for us all since March 2020.  We had hoped that we would be getting “back to normal” sometime soon – would any of us have thought we would still be living under restrictions more than 8 months later?!

Many of us have put things off, vowing that we will do this “when we get back to normal”.  

For now the new “normal”, for a large proportion of us, means:

  • working from home
  • adapting to new ways of working
  • flexible

Furlough to be extended to March 2021

Furlough to be extended to March 2021

This lunchtime, the Chancellor, Rishi Sunak, announced that the Coronavirus Job Retention Scheme (CJRS) will remain open until 31 March 2021, which will allow employers to furlough employees until that point. For claim periods running to January 2021, employees will receive 80% of their usual salary for hours not worked, up to a maximum of £2,500 per month. This means the Scheme is more generous than the scheme running in September and October. The percentage may be reviewed for February and March, presumably reducing on

First-time buyers should consider Lifetime ISA

First-time buyers should consider Lifetime ISA

A Lifetime ISA, or ‘LISA’ as they’re regularly referred to, offers a similar deal to Help to Buy ISAs but with considerable differences which you should watch out for or take advantage of. Some people may be taking advantage of a LISA to save for later in life (over 60), however there are benefits of using a LISA to purchase a property as a first-time buyer. If you wish you can always keep your LISA after purchasing your first property and continue to save

New reforms to boost hearing capacity in employment tribunals

New reforms to boost hearing capacity in employment tribunals

New reforms to boost hearing capacity in employment tribunals have been introduced at Westminster with the aim to hear more cases and allow for greater flexibility in light of the COVID-19 pandemic.

One of the changes being made will allow the judiciary the option of deploying non-employment judges into employment tribunals and will also allow employment judges who normally sit in England and Wales to sit in Scotland and vice versa.

Announcing the reforms, Business Minister Paul Scully said: "The employment tribunal system has held

Short Term Lets and Airbnb - Update

Short Term Lets and Airbnb - Update

Short Terms Lets and Airbnb have become a contentious matter in Scotland in recent times. The Scottish Government have recently conducted research into Airbnbs and Short-Term Lets in Scotland which confirmed there are 31,884 active Airbnb listings, three times as many compared to 2016.

It was found that in Edinburgh’s City Centre 16.7% of properties are being used as Short Term Lets equating to an estimated 140,000 visitors to the area per year, around 4.5 times the local resident population.

The increasing popularity of Airbnbs

Enhanced Redundancy Payments and Settlement Agreements

Enhanced Redundancy Payments and Settlement Agreements

If an employee is being made redundant they will be entitled to a period of notice and, for those with at least two years’ service, a statutory redundancy payment.  They should also be paid in respect of accrued but untaken holidays, if appropriate.

Statutory redundancy payments can be relatively small therefore some employers offer a payment in excess of the statutory minimum – usually called enhanced redundancy payments.  This can be offered for a variety of reasons: 

  • it may be that it forms part of

Covid-19 Update for Private Rented Sector Tenancies

Covid-19 Update for Private Rented Sector Tenancies

The Coronavirus (Scotland) Act 2020 (Eviction from Dwelling-houses) (Notice Periods) Modification Regulations 2020 are expected to come into force 3 October 2020. 

We previously blogged about the extension of notice periods introduced by the Coronavirus (Scotland) Act 2020. The link can be found here.

The purpose of these new Regulations is to reduce the extended notice periods for eviction grounds relating to antisocial behaviour and criminal convictions to 28 days in both the private and social rented sector.

New proposed notice periods for:

Private

Notice Period Update for Registered Social Landlords

Notice Period Update for Registered Social Landlords

The Coronavirus (Scotland) Act 2020 (Eviction from Dwelling-houses) (Notice Periods) Modification Regulations 2020 are expected to come into force 3 October 2020. 

We previously blogged about the extension of notice periods introduced by the Coronavirus (Scotland) Act 2020. The link can be found here.

The purpose of these new Regulations is to reduce the extended notice periods for eviction grounds relating to antisocial behaviour and criminal convictions to 28 days in both the private and social rented sector.

The new proposed notice periods are:

  • 4

Eviction Ban in Scotland - myth buster

Eviction Ban in Scotland - myth buster

A number of  RSL clients have been in touch with us recently to enquire whether there is a current ban on evictions in Scotland.

The extensive publicity suggesting that such a ban exists is misleading. There is no law in Scotland which prevents evictions taking place.

The most recent publicity has stemmed from the Scottish Government’s plans to consider extending the application of the extended notice periods beyond the original end date of 30 September 2020.

Currently the Coronavirus (Scotland) Act 2020 provides that our

What is guardianship in Scotland?

What is guardianship in Scotland?

Many of you may have seen the latest headlines regarding the #FreeBritneySpears movement where her fans are concerned about her father acting as her Conservator. Conservatorship is an American legal concept whereby the court appoints a person to manage a person’s affairs if they are deemed to be incapable.

The equivalent of Conservatorship in Scotland is known as Guardianship. A Guardianship Order is a court order which authorises a person to act and make decisions on behalf of an Adult with incapacity. In Scotland, an

Statutory Notice and Statutory Redundancy Payments Based on Full Pay not Furlough Pay

Statutory Notice and Statutory Redundancy Payments Based on Full Pay not Furlough Pay

The government has recently legislated to ensure that if a furloughed employee was made redundant, certain statutory payments would be calculated with reference to the employee's normal pay and not with reference to their reduced furlough pay.

The government suggested that throughout the pandemic it had urged businesses to do the right thing and calculate payments for employees being made redundant with reference to their normal pay, rather than their reduced furlough pay. While the majority of businesses had done so, the government was aware

Scottish Housing Market – changes for RSLs

Scottish Housing Market – changes for RSLs

As the Scottish Housing Market is set to re-open, guidance has been issued by the Scottish Government to ensure that this process is as safe as possible.  Whilst the requirement to maintain social distancing, regular hand washing, and the recommendation to wear a mask are still in effect, the following practical advice for the Social Rented Sector has been set out:

House Viewings

Before arranging any viewings, the RSL must determine if any members of the household are either shielding, or displaying symptoms of COVID-19

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