It is a well known principle that any construct must be built on solid foundations in order to stand the test of time. Well, the same can be said for raising an action for recovery of possession of a Scottish Secure Tenancy. In order for proceedings to be initiated the first step is to serve a Notice of Proceedings.
This prerequisite document essentially supports the action through legal proceedings in the courtroom and certainly is the initial bedrock of a pursuer?s position before a Statement
'But I've not spoken to my children in 10 years!!' Whether or not you choose to make a Will, there exists what are known as 'Legal Rights' in Scotland. Some argue that if they have chosen to make a Will and expressed a clear wish that their children are not to inherit any of their estate, then why should their children, who they, perhaps, have not seen nor spoken to for many years, be able to lay any claim against their estate? The theory behind
Previously, we blogged on the problems with service of actions raised at the First-tier Tribunal - Housing and Property Chamber (FTT-HPC) where the address of the tenant was unknown.
Proposals to amend the FTT-HPC procedural rules to correct this problem and revise the procedural rules more generally were laid before Parliament in December 2018. The amending provisions are contained within the First-tier Tribunal for Scotland Housing and Property Chamber (Procedure) Amendment Regulations 2018 and The First-tier Tribunal for Scotland Housing and Property Chamber (Incidental Provisions)
Before we all down tools for Christmas, it might be an idea to think about what sort of 'resolutions' you wish to make for your business in the coming year. Sometimes, the personnel issues are the ones that go to the bottom of a to-do list so now is a good time to think of what you are looking to achieve.
One area that tends to go to the bottom of a to-do list is contracts and policies.
How can you recover factoring & common maintenance debts from owner-occupiers? A Notice of Potential Liability for Costs (NPLCs) can assist Registered Social Landlords and factors to recover money due by owner-occupiers for factoring and common maintenance debts.
Notice of Potential Liability for Costs
Introduced in 2004, the Notice can be used in relation to flats or houses. It does not solely relate to costs already incurred and can be lodged in relation to planned works where there is doubt regarding an owner's ability to
The Scottish Government and the Scottish Trades Union Congress (STUC) have jointly created A Fair Work Charter for Severe Weather, setting out guidelines for both employers and workers for managing the effects of severe weather on work. The Charter was developed as a response to the severe weather brought in by the 'Beast from the East' at the beginning of 2018 which had an impact on commuters and those with caring responsibilities.
The Charter is an extension of the 2016 Fair Work Framework which
Last week was National Stress Awareness Day, and is a good way to remind employers they should be ensuring the welfare of their employees, in particular their stress levels and overall mental health. Employers have a legal and moral obligation to ensure they aren't discriminating against staff, specifically because of their mental health. Reasonable adjustments, by altering working conditions, to help employees with a disability, including mental health problems is the law.
While many organisations understand the impact of mental health in the workplace, it
On 29 October 2018, the Chancellor, Philip Hammond, delivered the Autumn 2018 Budget. The Budget included the following measures of interest to employment practitioners:
The Advisory, Conciliation and Arbitration Service (Acas) has published statistics on its early conciliation (EC) service for the period April to June 2018. The statistics show that the total number of EC notifications had increased by 53% as compared to the equivalent quarter of 2017. The figures also show an increase in the proportion of EC cases which thereafter proceeded to a full employment tribunal claim: 23% of EC cases went forward compared to only 17% in the same quarter for 2017.
Acas early conciliation
Background
In September 2016 the Office of National Statistics (ONS) announced that it was reclassifying Registered Social Landlords (RSLs) in Scotland as public non-financial bodies for the purposes of the national accounts. This was due to RSLs being subject to public sector control via the Scottish Housing Regulator's (SHR) powers over management, constitutional change and disposals of land. As a consequence of this reclassification, RSL debt would have to be counted as a public liability for the purposes of the nation's accounts. The ONS was
There is now an impending deadline fast approaching at breakneck speed on the 1st October 2018. Yes, that's correct. As the turn of the month falls before us and as we enter the autumnal season, if you are conducting letting agency work in Scotland and have not applied to join the Register of Letting Agents through Registers of Scotland then please be forewarned as all individuals involved in letting agency work must comply with the Letting Agent Code of Practice as well as having
When it comes to Wills, most people are focused purely on how the estate will be distributed. Questions such as 'have I given enough to my grandchildren?' and 'will my spouse be adequately provided for?' are, obviously, very important matters to consider. However, the appointment of an Executor is just as important.
Who should I appoint?
Your Executor is responsible for dealing with the administration of your estate and ensuring that the terms of your Will are carried out, often with the assistance of a
Acas, also known as The Advisory, Conciliation and Arbitration Service, has produced new guidance on job references. Aimed at both employers and employees, it is based around the most frequently asked questions put to the Acas helpline. It explains what references are and provides information on what they should include, when they are required and how to deal with issues or problems. In particular, the guidance covers the following common questions:
Working nine-to-five is no longer the working norm according to a YouGov survey.
The survey reveals that a mere 6% work the traditional 9am-5pm workplace hours. Interestingly, only 14% of those polled would opt for these hours if given the choice.
A significant proportion (66%) said they would prefer to start earlier and finish earlier, with the most preferred options being 8 till 4 or 7 till 3.
Whilst this reflects a shift in labour requirements generally, it also shows a change in attitudes towards
One of the benefits of making a Will is that you can narrate your funeral instructions and let your family know your specific wishes for your funeral. However, as you will not be here to know if these wishes have been carried out, is it really worth stipulating what should happen to your body and at your funeral service?
The inclusion of funeral instructions in your Will is a guide to your Executors and family and can be as straightforward or as complicated as you
The First-tier Tribunal for Scotland (Housing and Property Chamber) (FTT) "recently considered the duration of a short assured tenancy in the case of Prestel & Dunbar v Norton (EV/18/1089)."
In this case parties entered into a tenancy agreement on 21st July 2017. An AT5 was served on the same date, before the tenancy agreement was signed. On 17th November 2017, the landlord served on the tenants a Notice to Quit and a Notice under Section 33(1)(d) of the Housing (Scotland) Act 1988,
As TC Young starts looking for another trainee, I thought some candidates may welcome some tips for completing a trainee application form before pushing the send button.
It is quite a thought returning to work after a period of maternity leave and here we look at the things an employee will want to think about before going back to work.
Recent figures from the Office for National Statistics establish a significant fall in the number of sick days employees are taking off work. The figures reveal that employees took off an average of only 4.1 days in 2017, compared to 7.1 back in 1993 (the year records began).
The available data shows that the sickness absence rate started slowly decreasing in 1999, and continued to fall following the 2008 credit-crunch. There will be a multitude of factors contributing to this. It is suggested that the
Figures obtained from a freedom of information request to the Department for Business, Energy and Industrial Strategy (BEIS) reveal that over £390,000 of employment tribunal awards remained unpaid in 2017 due to insolvency of the employer.
The real amount may be significantly higher as BEIS is only aware of unpaid awards when it is notified by a claimant. Experts suggest that these figures could be indicative of there being an element of "phoenixing", where an employer intentionally becomes insolvent to avoid the debt, and then
One of the main facets of the new Private Residential Tenancy (PRT) is that it offers increased security of tenure to tenants. An order for eviction will only be granted where a landlord can satisfy the First-tier Tribunal (Housing and Property Chamber) that one of the 18 grounds for eviction is established. The Tribunal needs to be persuaded, with evidence, that the landlord is entitled to end the tenancy.
How do private landlords prove that they have a ground for eviction?
It essentially depends on
There have been a few employment tribunal decisions which have considered the position of philosophical beliefs, and what beliefs are protected. The Equality Act 2010 protects the rights of employees to practise their religion without fear of discrimination. However, certain employees hold philosophical rather than religious beliefs and these may be protected by law.
In 2009, an Employment Appeal Tribunal (EAT) decision defined the criteria of a philosophical belief. It must:
On 1st December 2017 jurisdiction for private sector tenancy related disputes transferred to the First-tier Tribunal for Scotland Housing and Property Chamber. The Tribunal is allocating up to two cases to be heard each day. Tribunal members have sufficient time and expertise to scrutinise the content of rent statements. Accordingly, it is now more important than ever to ensure rent statements are accurate.
If you are relying on rent arrears as a basis for eviction, or you wish to lodge an application for payment
The above Order came into effect from Saturday 30 June 2018. Subject to certain conditions, First-Time Buyer Relief is now available to first-time buyers in Scotland. The relief applies to qualifying transactions where the contract is entered into on or after 9 February 2018 and the date of entry is on or after 30 June 2018. It is therefore not available for any transactions with an effective date prior to 30 June 2018.
Taking the decision to move, or helping a loved one move, into a care home can be a stressful time. It is important that the financial implications are fully understood.
The average rate for residential care in Scotland is £639 per week (£33,228 per annum) and for nursing care is £852 per week (£44,304 per annum). Understandably, when faced with these figures people worry about how they will fund a move to care or nursing accommodation should this be required in the future.
Where the
The government has recently published a response to the Women and Equalities Committee report on Fathers and the Workplace.
In March 2018, the Women and Equalities Committee published a report, Fathers and the Workplace, calling on the government to make improvements to fathers' rights at work. This included, for example, removing the qualifying period for paternity leave to make it a right "day one" from the first day of employment, and increasing the rate of statutory paternity pay to 90% of earnings.
The government has
In December 2017 Scottish Government produced their third Consultation Paper on extending Freedom of Information (FOI) to the sector with a draft Order which made both Registered Social Landlords (RSL) and RSL subsidiaries subject to FOI when carrying out 'housing activities' as defined in the Housing (Scotland) Act 2010. Responses to that Consultation are set out here
The Scottish Federation of Housing Associations commissioned our firm to provide a technical analysis as part of its response. Links to that response and analysis are set out
We are often asked - what is a Living Will?
It is:
Here's a sentence we don't often get to say: it's getting hot! The coming days are set to see record temperatures across the UK, giving us the feeling of an actual summer for the first time in a long time. While we've had to contend with previous weather issues (the Beast from the East to name but one), being too hot is not often one of them. Here we look at the things that employers should be thinking about while we're enjoying the current hot
The Occupiers Liability (Scotland) Act 1960 has given rise to a raft of case law recently. In essence, it sets out the level of care required to be demonstrated by the legal entity who occupies or controls land or premises to any third party who may access such land or premises. This requires the occupier to assess the dangers which exist given the location of such land or premises and to highlight or mitigate any wants and defects which are present.
The first thing to
Separation often results in one parent being responsible for the majority of the everyday care of the children. A common result of this is that they also end up being responsible for the everyday costs. Child maintenance payments are financial support paid by the parent who does not have day-to-day care of the children. It can be paid to the other parent, the child or a grandparent or other guardian.
Child support payments are usually agreed between the parents or through the Child Maintenance Service
With all the gorgeous weather we've been having, the start of the World Cup 2018 seems to have crept up on us (or is that just me?). The World Cup takes place in Russia between Thursday 14th June and Sunday 15th July. Football match times in the UK will vary between 11am and 8pm.
The World Cup is a big sporting event for many employees who may want to follow their favourite football team (sadly this does not include Scotland this time).
I think you should set up a trust; this will protect your assets. Sounds great! But what is a trust? What can you put in to a trust? And will there be any charges associated with the trust?
What is a Trust?
A trust is when one person is given property to hold for the benefit of another. Dependent upon the size and complexity of your estate, particularly if your assets are over the threshold for Inheritance Tax (currently £325,000), you may wish to consider
The various changes to housing management law and practice, which are contained in Housing (Scotland) Act 2014, now have dates set for their introduction.
Almost 4 years after the Act received its Royal Assent, the Commencement Order for these changes has finally been published.
The Act will make changes to a variety of areas.
The changes to the rules on Short Scottish secure tenancies (especially when used as method to deal with antisocial behaviour), the use of criminal convictions as grounds for eviction and the
A limited liability company is a popular choice when considering business models. It has relatively small costs to set up and get going. However, the essential requirements can appear daunting.
This guide outlines the key elements below and gives sources that are available for support.
Articles of Association
These are the building blocks of your company. They state how important functions will operate e.g. Directors powers. Model Articles are available on the Government's website that cover all of the basic functions. However, they may not
We are often asked, can collaborative law help me? The collaborative law process offers separating couples a non-confrontational way of agreeing the legal and practical arrangements for their separation and divorce. By reaching agreement in a collaborative way, couples are able to come to a respectable arrangement together through supported discussions.
At its simplest, the collaborative process is all about reaching solutions together. Sometimes talking things through can seem the hardest challenge of all. When relationships break down, hurt, bitterness and anger are often the
You might have heard somebody mention mediation before but what is mediation? Mediation is a form of alternative dispute resolution that involves two (or more) parties and a mediator. Mediation provides parties with the opportunity to have an open and honest discussion about a range of family law issues in a neutral environment. Everything that is said during a mediation session is confidential and the parties have control over any decisions that are made during the meeting.
What sort of issues can be dealt with
Termination payments are often made to employees when the termination of their employment is governed by a settlement agreement. New rules affecting the taxation of termination payments came into effect on 6 April 2018.
What are the changes?
There has been a change to the taxation of 'payments in lieu of notice' (PILONs), which are commonly part of any overall settlement.
Where employment terminates on or after 6 April 2018, there will now be no distinction between contractual and non-contractual PILONs. Both will now be
With less than a month to go before the implementation of the GDPR it is crucial that existing and future public contracts comply with the new legislation. What will change in respect of public contracts and the GDPR?
The Scottish Government has published a Policy Note on the impact the GDPR will have on public procurement and contracts. This blog will highlight the key features of the note alongside steps organisations should take to get their public contracts and procurement processes GDPR ready.
What is
We previously blogged about what options are available to landlords where one joint tenant wants to leave a rented property and the other(s) wish to remain. That blog related to assured and short assured tenancies under the Housing (Scotland) Act 1988. So what happens when a Joint Tenant wants to leave a Private Residential Tenancy?
Landlords will be aware that under the Private Housing (Tenancies)(Scotland) Act 2016, all new tenancies created after 1st December 2017 will be Private Residential Tenancies (PRTs). The position regarding
Each year, we see a number of proposals which have an impact for employees and employers alike, and this year proves to be no different. We thought that it would useful to give you an employment law update.
While some of the changes are those which we see every year, there are some which will have a greater impact on organisations.
Gender Pay Gap Reporting
30 March 2018 was the date on which specified public authorities, including government departments, the armed forces, local authorities, the
Under the General Data Protection Regulation (2016/679), a Data Controller is under a strict obligation to report a GDPR breach to the Information Commissioner's Office (ICO) in the event that it meets certain requirements.
Time frame for reporting
You must report a personal data breach, under Article 33, without undue delay and not later than 72 hours after becoming aware of the breach. However, what does becoming aware mean? The Article 29 Working Party Guidance considers awareness being at the point where you have
A Data Protection Officer (DPO) is the individual who is responsible for an organisation's overall compliance with the GDPR (General Data Protection Regulation).
The GDPR makes it mandatory for a DPO to be appointed for any organisation which is a public body. The definition of public body is taken from Freedom of Information legislation and the new Data Protection Bill. This means that when Freedom of Information legislation is amended to include Registered Social Landlords, you will be required to appoint a DPO. It is
An English Local Authority has recently been criticised for refusing to pay an elderly woman's residential care fees when it learned that she made regular cash gifts to her family after moving into a care home. They believed this to be a deliberate deprivation of capital.
What is a deprivation of capital?
The Local Authority requires a financial assessment be completed for anyone moving to residential accommodation. It follows the Charging for Residential Accommodation Guidelines for Local Authorities. The guidelines state what can be considered
Eviction cases based on anti-social behaviour are always difficult and although they invariably turn on their own particular facts and circumstances, it is possible to draw guidance from the approach of the Courts in previous cases.
A recent example is the case of Midlothian Council v Lee Greens.
This was an action for recovery of possession raised on the basis of three grounds: a failure to pay rent or other breach of a tenancy obligation, relevant conviction and anti-social behaviour.
Drugs Conviction
The Defender
The only things in life which are certain are death and taxes. They both also cause a great deal of uncertainty in life. We are often asked, what happens to a Scottish secure tenancy when a tenant dies?
What happens to the tenancy?
If there is a joint tenant the tenancy will continue as a sole tenancy in the name of the surviving joint tenant. If there is no joint tenant you will need to consider whether the tenancy passes to a successor. Succession operates
Generally, a contract only gives rights and obligations to the people that are a party to it. However, there are circumstances where contracts can create third party rights. In Scotland, these third party rights were often criticised as the law around them was unclear and inflexible.
To change this the Contract (Third Party Rights) (Scotland) Act 2017 (the Act) came into force on 26 February 2018.
The Act makes a number of changes to how third party rights in Scotland work. This blog gives a
What is an Action Plan?
The Assessment of the Energy Performance of Non-Domestic Buildings (Scotland) Regulations 2016 created a somewhat advanced form of an Energy Performance Certificate, known as both a section 63 Assessment but more commonly known as an Action Plan.
When do you need an Action Plan?
Action Plans apply to non-domestic buildings or buildings with a floor area over 1000 square metres, which do not comply with the 2002 Scottish Building Standards. The trigger for requiring an Action Plan is upon the
Land and Buildings Transaction Tax (LBTT) replaced Stamp Duty Land Tax on 1st April 2015. As well as being the duty payable on the price or consideration for the purchase of residential and commercial land and properties in Scotland, its introduction affected taxation on the grant of non residential leases.
In circumstances where a return in relation to a lease was made to Revenue Scotland in terms of the LBTT regime, i.e. after 1st April 2015, tenants under those leases require to remember
The 20-Year Rule provides that a heritable security (e.g. a standard security) over a private home may be redeemed on repayment of all money advanced under the security together with interest and expenses after 20 years.
This can create issues in shared equity arrangements. In 2014 Scottish Government held a consultation on exempting certain shared equity schemes from the 20 Year Rule. The intention is for the exemptions to take effect in the first half of 2018.
We understand that the Scottish Government has carried
