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Can a court intervene in financial affairs?

Can a court intervene in financial affairs?

The Adults with Incapacity (Scotland) Act 2000 authorises a Sheriff to take steps on behalf of a person who has lost capacity to act for himself. The Sheriff must be satisfied that it is appropriate to intervene in the Adult's financial affairs in terms of the principals of the Act. So when can a court intervene in financial affairs?

Our recent case of JM and Mrs JM, is described by the Sheriff as a 'proper' example of this.

In 1997, a couple obtained a

Consumer Credit Regulation: why RSLs can't ignore changes

In March 2013, HM Treasury published its consultation on transferring consumer credit regulation from the Office of Fair Trading to the Finance Conduct Authority on 1 April 2014 to create a ?tougher and more pro-active? regulatory regime. When that happens authorisation, monitoring and supervision is likely to be more rigorous and costly for RSLs.

Fascinating.? But what?s it got to do with us?

Many RSLs (RSLs) and subsidiaries have consumer credit (CCA) licences ? primarily through participation in the LIFT Scheme where? they act as

How can Employers Avoid a Constructive Dismissal Claim

How can Employers Avoid a Constructive Dismissal Claim

Constructive dismissal has become 'sexy' following the highly publicised tribunal decision in the case of Stella English v Amshold Group Limited. Miss English (2010 winner of The Apprentice), brought a claim of constructive dismissal claim against her employer, Lord Sugar's company, stating that she had no choice but to resign as she had no real role at the company.

Following the unanimous dismissal of Miss English's claim, Lord Sugar praised the tribunal and saw it as a victory against the so-called 'claims culture'.

So

Assisted Suicide - an end to postcode lotteries?

Assisted Suicide - an end to postcode lotteries?

End of life decisions may raise questions about assisted suicide. The European Court of Human Rights has held that Switzerland is in breach of the European Convention on Human Rights, as it does not provide sufficient guidelines clarifying when a patient is entitled to ask for, and receive, a lethal prescription.

Doctors refused to provide a lethal prescription to a lady suffering a serious but not immediately life-threatening condition. The court accepted that it is for each state to address the "difficulties in finding the

High Hedges Act - legal update

High Hedges Act - legal update

Sunlight in Scotland is a rare enough thing and we cherish each moment we can get. If you have a neighbour who does not or cannot keep a boundary hedge under control and at a manageable height, you may be losing out on this precious resource. Disputes over the height of boundary hedges (whether the dreaded leylandii, other evergreen or deciduous trees or shrubs separating theirs and yours), can be a bit of a powder keg issue especially when emotions run high (no pun intended!!).

Retirement - essential steps for a smooth transition

Retirement - essential steps for a smooth transition

With?the announcement that football management royalty, Sir Alex Ferguson, will be hanging up his gaffer's hat and settling down to a life of retired bliss, my thoughts turned to the employment aspects of retirement and how an organisation can support an employee during this period.

Unless it can be objectively justified by your organisation, it is no longer permissible to dismiss someone on the grounds of retirement. Like Sir Alex, older workers can voluntarily retire at a time they choose and draw any occupational pension

Property Factors (Scotland) Act 2011 - Update for RSLs

Property Factors (Scotland) Act 2011 - Update for RSLs

In line with the requirements of the Property Factors (Scotland) Act 2011, the Private Housing Services Team within the Scottish Government are in the process of contacting all registered factors (including RSLs) to remind them that they are required to confirm or update the list of properties which they manage by 30th June 2013.

What do I need to do?

  • A note of all properties and details of all land managed by each factor.

The properties which must be listed are those managed by

Employee shareholder legislation ? third time lucky?

Employee shareholder legislation ? third time lucky?

Following three re-drafts by the Government, a consensus was finally reached on employee shareholder legislation. In April 2013, the House of Lords and the Government agreed on wording of the Growth and Infrastructure Bill which introduced a new employment status employee shareholder.

First proposed by the Chancellor George Osborne at the Conservative Party Conference last October, the original proposals saw a new employment status of employee shareholder that would see employees who were employed under this contract between £2,000 and £50,000 worth of shares, in

Challenging the procurement process

Challenging the procurement process

If you are considering challenging the procurement process are you aware that the courts will consider the public interest. The procurement regulations provide that,

where a legal challenge based on a breach of the procurement regulations has been raised following the completion of a tender process, the public body procuring the contract is prohibited from entering into the contract with the successful bidder until the legal proceedings are resolved, or the court grants an interim order lifting this prohibition.

In the case of Hastings

Do employers need a social media policy?

Do employers need a social media policy?

Should employers have a social media policy? The potential employment risks around social media was highlighted this month after the resignation of the first Youth Police and Crime Commissioner, Paris Brown, following racist tweets on her Twitter account. Although the tweets were sent before she applied for and accepted the job, they were there to be scrutinised by her future employers and the media.

It is taken for granted that everyone now has some sort of online presence  be it for business, pleasure or both.

Divorce in Scotland - a 2012 statistical round up

Divorce in Scotland - a 2012 statistical round up

According to Scottish Government divorce statistics in 2012, a total of 13,679 family cases were initiated in the civil courts during 2011/12, a decrease of 6% on 2010/11. Divorce actions accounted for 78% of the total figure, with actions concerning parental rights and responsibilities accounting for 17%.

A total number of divorces granted during 2011/12 was 9,453, a decrease of 2% compared to the previous year.

What was the most common procedure?

Of those 9,453 divorces granted, 62% used the Simplified Procedure ("quickie divorce") and

Rent arrears, tenant eviction & the bedroom tax

Rent arrears, tenant eviction & the bedroom tax

I can't seem to get away from the bedroom tax. Having blogged about this topic for the last couple of months, I thought an update might be useful regarding rent arrears, tenant eviction and the bedroom tax.

The changes to housing benefit came into force on 1 April 2013. From that date Housing benefits claimants who are deemed to have a 'spare' bedroom will see their housing benefit payments reduced by either 14% or 5%.

Campaign groups have continued to mobilise their opposition to these

Can right to buy applications be refused?

Can right to buy applications be refused?

The Right to Buy (RTB) process is managed by various legal time limits. As a result, a straightforward transaction should take around seven months to complete from receipt of the application to handing over the title. So can Right to Buy applications be refused?

One of the most important time limits is the one month period within which a landlord must refuse or reject an application to buy under the RTB legislation.

Failure to act timeously may result in the landlord being forced to sell

Dealing with Antisocial Tenants in Scotland

Dealing with Antisocial Tenants in Scotland

One of the many differences between tenancy law in England and Scotland was highlighted online, namely the consequences of a landlord's failure to address the behaviour of antisocial tenants. In England, the landlord has no specific legal obligations to deal with antisocial tenants however Scotland is an entirely different story.

The Antisocial Behaviour etc (Scotland) Act places a duty on a private landlord to take action to deal with antisocial tenants. Local authorities who receive complaints of antisocial behaviour in a tenanted property will normally

Legal separation in Scotland: 5 things you need to know

Legal separation in Scotland: 5 things you need to know

Legal separation in Scotland can be a difficult step to take but it is important to prepare yourself for what happens next. Here are 5 things you need to know.

1. How do we separate?

Couples usually separate when someone moves out of the matrimonial home. A solicitor can provide clarity on this by producing a separation agreement for spouses, civil partners or couples who have been cohabiting.

2. Who needs to know we have separated?

After separating you may have a responsibility to inform

Disability Discrimination - A Weighty Issue

Disability Discrimination - A Weighty Issue

We are often asked by employers to advise on disability discrimination.

Equality Act 2010 states 'a person has a disability if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day to day activities'. Long term means the impairment has lasted, or is likely to last:

  • at least 12 months
  • or for the rest of a person's life
  • or, if it is in remission, is likely to recur

The guidance

Penalty Clauses in Tenancy Agreements: Are They Legal?

Penalty Clauses in Tenancy Agreements: Are They Legal?

Putting penalty clauses in tenancy agreements is fairly routine procedure within the private rented sector. However, whilst the practice may be widespread in Scotland, the issue of whether or not a penalty clause is legitimate can be a tricky matter.

Penalty clauses provide that where a tenant is in breach of their tenancy obligations, they will be liable to pay certain charges in addition to their rent. Charges typically imposed by landlords and letting agents range from interest on overdue rent or charging for the

Internal Disciplinary Procedures - Getting It Right

Internal Disciplinary Procedures - Getting It Right

The case of Christou(C) and Ward(W) v Haringey Council focused on internal disciplinary procedures and involved an appeal to the Court of Appeal by two social workers. They were found to be at fault in the handling of the Baby P case.

C was a team leader responsible for a number of social workers, including W. W had specific responsibility for Baby P who was on the child protection register. They had been disciplined under the Council's simplified internal disciplinary procedures and given a written

Tenant eviction and the bedroom tax

Tenant eviction and the bedroom tax

Tenant eviction and the bedroom tax (or the 'spare room subsidy' if you're a cabinet minister!) continue to dominate conversation in the housing world.

My blog last month put forward some ideas to minimise the impact of the changes to Housing Benefit which are now just two weeks away.

It also seems that the UK government are starting to get cold feet. Yesterday Ian Duncan Smith, the current Secretary of State for Work and Pensions, announced that guidance will be issued that will exempt foster

Shared Parental Leave Scheme

Shared Parental Leave Scheme

In February 2013, the Children and Families Bill was introduced in the House of Commons. It implements, among other things, the family-friendly proposals contained in the government's Consultation on Modern Workplaces. The Bill will introduce a shared parental leave scheme.

Under this system, an eligible mother will continue to receive 52 weeks' maternity leave as a day one employment right. Following the completion of the two weeks of compulsory maternity leave post birth, the mother can choose to end her leave early and share the

What is housing bond finance?

What is housing bond finance?

Housing bond finance is essentially a loan agreement used to provide financing for a borrower and income for a lender. Called a "security" because they have a fixed yield, bonds compel the borrower to pay interest on the amount of the loan. This is called the principal or par value.

The capital is normally paid in full by the borrower at maturity although some bonds do provide for repayment over the period of the loan agreement. Until maturity, the borrower makes interest payments to the

Commercial Contract: ensure accurate clauses

Commercial Contract: ensure accurate clauses

A Court of Session decision in the case of Patersons of Greenoakhill Limited v Biffa Waste Services Limited highlights the significance of getting contract clauses right first time. This case demonstrates that cost implications to businesses can potentially be significant when mistakes in drawing up clauses in commercial contracts are made.

Patersons operated a landfill site and also had a controlling shareholding in a waste collection business. Biffa sought to purchase the waste collection business.

Patersons proceeded with this transaction on the basis that Biffa

Does your organisation pass the charity test?

The Office of the Scottish Charity Regulator (OSCR) has the power to apply the charity test as defined in the Charities and Trustee Investment (Scotland) Act 2005 to review the charitable status of charities listed on the register. Does your organisation pass the charity test?

The five functions of OSCR as specified in law are to:

    1. decide which bodies are?charities
    2. keep an accurate Register?of charities
    3. encourage, monitor and?facilitate compliance
    4. identify and investigate apparent misconduct
    5. inform and advise Scottish?Ministers

To maintain charitable status, charities must continue

So you want to be a company director ?.

So you want to be a company director ?.

S172 of the Companies Act 2006 states that a company director must:

"act in the way he considers, in good faith, is most likely to promote the success of the company for the benefit of its members as a whole"

When it was introduced, this section of the Act created a great deal of concern, was it a step too far in terms of directors' statutory duties?

However, it seems that the controversy surrounding this section was ill-founded, as we have been living with it

Can I change the locks on my spouse?

Can I change the locks on my spouse?

As family lawyers we are regularly asked the question: Can I change the locks on my spouse? This is probably one of the most common questions I am asked when dealing with a client's separation or divorce.

The short answer is no. Regardless of whose name the property is in, each spouse has the right to occupy the property. These rights are known in Scots Law as 'occupancy rights'.

The only way to legally exclude your spouse from the family home is by

Property Factor's written services statement

Property Factor's written services statement

The Property Factors (Scotland) Act 2011 has shaken up the previously unregulated, and unstructured, property factoring regime in Scotland and has introduced the Property Factor's written services statement. Although the provisions within the Act came into force on 1 October 2012, it seems many organisations and individuals are playing "catch up" with how the changes affect them, including the Property Factor's written services statement.

Written Statement of Services

In addition to the Act itself, property managers must also comply with the Code of Conduct.

Debt recovery and using an inhibition

Debt recovery and using an inhibition

When it comes to debt recovery, a pursuer must obtain a payment decree from the Sheriff Court against a defender (debtor), and then take steps to enforce the decree in order to recover sums due.

One of a number of different procedures a pursuer can utilise,with a view to recovering an outstanding sum, is an inhibition.

  • Once registered this prohibits a defender from selling, transferring or otherwise disposing of any land and other immoveable assets i.e. houses and commercial premises, until the debt is settled

Landlord legal advice - dealing with joint tenants

Landlord legal advice - dealing with joint tenants

Many landlords will have joint tenants, particularly in student flats. However recent legislation on tenancy deposit schemes and tenant information packs has highlighted some issues facing landlords with joint tenants in Scotland.

Tenancy Deposit Scheme

- The tenancy deposit scheme regulations say nothing about joint tenants

- It has been left up to each scheme to make the rules as to how they will deal with deposits for joint tenancies

- Each scheme requires?landlords to identify a lead tenant when submitting a deposit. This will

My tenant has abandoned my property & has sublet without consent!

We are regularly asked for advice by landlords in Scotland on how to repossess a property that a tenant has abandoned. However, recently we were presented with a situation that was slightly more problematic where the tenant had abandoned the property and then sublet without consent!

There is no legal route to repossess a property where a tenant has abandoned, other than by seeking a court order. However, landlords generally wish to repossess sooner rather than later and may want to carry out an assessment

Bedroom tax impact on housing associations

Bedroom tax impact on housing associations

My previous blog looked at the forthcoming bedroom tax impact on housing associations and offered some suggestions on minimising its impact.

Glasgow Advice Agency, an organisation which provides welfare rights and advice services across the South and North East of Glasgow, have recently obtained and published an opinion from Jonathan Mitchell, Q.C. The opinion is published via the website of Govan Law Centre (one of the Agency's member organisations) here.

In this blog, I will look at arguments that rooms of certain sizes should

Housing Associations & the bedroom tax

Housing Associations & the bedroom tax

There cannot be a single housing association which is not aware of forthcoming changes to housing benefit and the impact of the bedroom tax. These changes will see reductions in housing benefit to tenants who are deemed to be over-occupying. New rules will set out:

- The number of bedrooms which will be eligible for benefit

- If a tenant has one spare bedroom, then 14% of their benefit will be removed

- If they have two or more spare bedrooms, then their benefit will

Gritting common areas - landlord?s responsibility?

In a previous blog about landlords? duties during the winter months, we highlighted the possible duty for landlords under the Occupiers Liability (Scotland) Act 1960 to ensure that they are gritting common areas.

Continuing the gritting common areas theme, a very interesting judgement has now been released in a sheriff court case. The case is Bonham v Pentland Housing Association.

-? Ms Bonham was a tenant of Pentland HA

-? In December 2009, she fell on the pavement area outside her home, breaking her

Do you need a common insurance policy in Scotland?

Do you need a common insurance policy in Scotland?

Owners have a duty to ensure that their own property and any common parts are adequately insured. The title deeds for your property will state whether or not you are obliged to take out a joint insurance policy with other owners to cover both your own property and/or common areas affecting a larger building. So do you need a common insurance policy in Scotland?

The level of insurance is generally its re-instatement value, namely the cost of re-building your home from scratch. The re-instatement value

Scottish Tenancy Deposit Scheme Deadline

Scottish Tenancy Deposit Scheme Deadline

LetLaw have had a number of Tenancy Deposit Scheme queries from landlords and agents regarding the Scottish Tenancy Deposit Scheme deadline, and in particular the rules relating to tenancies which started prior to 7 March 2011.

The Tenancy Deposit Schemes (Scotland) Regulations 2011 provide for different timescales for lodging deposits, depending on when the tenancy commenced and when it renews. Some landlords appear to be of the belief that as long as the deposit was received prior to 7 March 2011, then they have no

What are the duties of charity trustees in Scotland?

What are the duties of charity trustees in Scotland?

The Office of the Scottish Charity Regulator (OSCR) were made aware of reports in the press about an alleged high value severance package agreed by the charity trustees of Glasgow East Regeneration Agency for the charity's Chief Executive when he was made redundant. What are the duties of charity trustees in Scotland?

OSCR's regulatory functions are set out in the Charities and Trustee Investment (Scotland) Act 2005 (the Act) and include the requirements to encourage, facilitate and monitor compliance by charities and to identify and

Housing Associations: How to follow the Golden Brick Road?

Housing Associations: How to follow the Golden Brick Road?

Golden brick is a familiar term to housing associations in relation to development sites and taxation but how will they follow the golden brick road? So, where Dorothy discovered the Wizard was simply an ordinary man, what will housing associations' discover if they pull back the curtain for golden brick?

What is Golden Brick?

Housing Associations (HAs) are not generally able to recover VAT on rented properties and have limited recovery prospects for shared ownership schemes. As a result they will always seek to

Dealing with workplace sickness absence

Dealing with workplace sickness absence

In 2011 a review of workplace sickness absence was carried out by Dame Carol Black, the Government's national director for health and work, and David Frost, director-general of the British Chambers of Commerce.

The Government has responded to that review by announcing that it will introduce a new independent assessment and advisory service in order to address sickness absence and get employees back to work.

This is likely to be in place by 2014. The service will offer a health assessment for employees who have

Cohabitation Rights in Scotland - Decision of Gow v Grant

Cohabitation Rights in Scotland - Decision of Gow v Grant

The law of Scotland on cohabitation rights provides that when an unmarried couple who live together separate, then one or either of the former partners may make a financial claim on the other.  There remain differences between this regime and the applicable system when spouses divorce and they should not be viewed as one and the same. This is in stark contrast to the law of England where only married couples may seek financial provision from a spouse. The law when it first came into

Scottish Tenant Information Packs

Following their introduction in the Private Rented Housing (Scotland) Act 2011, the Scottish Government announced that Scottish tenant information packs will arrive on the 1st May 2013. From that date, a landlord will be required to provide the tenant with standard documents no later than the date on which the tenancy starts, as specified in the Tenant Information Packs (Assured Tenancies) (Scotland) Order 2013.

In particular landlords will require to provide tenants with the following documents:-

  • a copy of the tenancy agreement
  • where the

Forcing owners to maintain property

Forcing owners to maintain property

We are frequently asked by landlords can other owners be forced to maintain their property. One common issue is where persistent leaks from one property cause water ingress and damage to another. This can be where one or both of the properties are being let.

Unfortunately, landlords in this situation are limited in what they can do to prevent further leaks arising. You can put pressure on the owner to carry out repairs swiftly and by a qualified contractor. However, often repairs aren't carried out

General Consent - Remember the Audit Trail

General Consent  - Remember the Audit Trail

Registered Social Landlords (RSLs) will be aware of the need to obtain Section 107 consent from the Scottish Housing Regulator (SHR) prior to any disposal of land, unless the type of disposal is specifically exempted or is covered by General Consent.

General Consent will cover: -

  • Sale of land, untenanted social houses or other assets up to and including £100,000
  • Sale of untenanted social houses to another RSL
  • Sale of untenanted houses, land or other assets to another RSL as part of a development agreement

Landlords, the truth about signing tenancy agreements online

Landlords, the truth about signing tenancy agreements online

Landlords are increasingly turning to the internet to conduct their letting business. A major part of that is the issue of signing tenancy agreements online. Most landlords would be keen to have this option particularly if there is no face to face contact between landlord and tenant. However, the law in Scotland has not quite caught up with the rest of the world and as such there is some doubt whether tenancy agreements signed online are legal.

In Scotland, tenancy agreements require to be 'self-proving'.

Scotland's Homeowner Housing Panel

Scotland's Homeowner Housing Panel

?Better Dispute Resolution in Housing: Consultation on the Introduction of a New Housing Panel for Scotland. A bit of a mouthful, but this is the title of the latest Government proposal for Scotland's Homeowner Housing Panel which was published in January 2013. The paper can be found by clicking here.

In very simple terms the government is inviting comment on its plan to change the way that housing disputes are resolved.

The consultation examines three principal options:

  • The expansion of mediation,?other forms

Making a Will in Scotland

Do you fall into the 60% of the population who do not have a Will? ?A survey found that the majority of those who didn't have Wills knew it was something they should do, but had just ?not got round to it?. If you fit into that description, why not start the New Year by ticking making a Will from your ?to do? list?

What happens if I don?t make a Will?

Many people delay making a Will as they believe their affairs are straightforward

Tips for divorce settlements - pensions and divorce

Tips for divorce settlements - pensions and divorce

It is not uncommon for divorce settlements to include a person's pension, as it can be more valuable than your house. It is therefore important not to disregard pension rights when determining how matrimonial property is to be divided on divorce.

In Scotland, only pension assets which have accrued during the period of marriage comprise matrimonial property.

There are three ways in which your pension can be dealt with on divorce:

  1. Pension sharing: The pension policy can be shared by transferring a portion of the

Employment law 2013, 6 things you need to know

2013 is shaping up to be another busy year for employment lawyers and HR professionals alike. With a raft of changes expected, we have summarised the most important, and will keep you updated throughout the year with regular blogs and tweets about employment law 2013.

1.?? From 1st February:

-? the Unfair dismissal compensation?award limit will increase from ?72,300 to ?74,200, and

-? a week?s pay for calculating statutory redundancy will increase from ?430 to ?450.

2.?? The Enterprise Regulatory and Reform Bill

Procurement interim orders & public interest

Procurement interim orders & public interest

The?case of Glasgow Rent Deposit & Support Scheme against Glasgow City Council and Ypeople (decided on 6 December 2012) highlights the court?s reluctance to delay a contract award because of an alleged breach of the procurement regulations where this would be detrimental to the public interest.

GCC tendered for a service providing increased access to housing for the homeless and specifically the provision of a deposit guarantee scheme and temporary furnished accommodation. The pursuer raised the action and asked that the decision to award the

Scottish Housing Bill - more legal changes

Scottish Housing Bill - more legal changes

Last year I blogged about the possibility of another Scottish Housing Bill during 2012 and more legal changes. That did not come to pass but plans are afoot for a Bill in 2013. Discussions are proceeding about the contents of the Bill.

I would imagine that one proposal which would meet almost universal support would be a ground for compulsory eviction where tenants are guilty of serious antisocial behaviour.

The UK Home Office published a draft Antisocial Behaviour Bill which will apply only to England

Advertising Properties for Rent in Scotland

Advertising Properties for Rent in Scotland

There are changes to advertising properties for rent in Scotland. The introduction of two important statutory changes will directly impact how landlords and letting agents advertise their properties. Non-compliance with the new advertising rules can result in financial penalties of up to £500. Landlords and letting agents in the private rented sector in Scotland should take steps to ensure that they are not caught out by these legislative changes.

Displaying Energy Performance Indicator

From the 9th of January 2013, where a property is being

Tenancy Deposit Scheme Legislation

Will English Tenancy Deposit Scheme Legislation impact on Scotland??A few months ago, the LetLaw team looked at the English case of Surpere v Nice where a landlord had failed to lodge the deposit with a tenancy deposit scheme.

The English courts have again looked at the tenancy deposit legislation and the impact on landlords if they fail to comply with their duties. As a health warning, it should be noted that the decisions of the courts in England are not binding on the Scottish courts.

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