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Human Law Mediation Blog: Recent Posts

Tuesday November 18, 2014 at 6:40am
As has been reported earlier this year, the government legal aid cuts lead to the former deputy speaker, Nigel Evans being unable to recover his £120,000 of legal costs despite being found innocent This is just one example of how the quest to save the legal aid bill as led to instances which fly in the face of justice..

It is worth reflecting what is going on in our society now.

Another example is this. If the state is seeking to take your child away from you, you should be entitled to legal aid irrespective of means but as was picked up in the Sunday Times last week, a Swindon family are not eligible due to a loophole that means if a local authority decide to put a child up for adoption, the parents legal aid is means tested.

Overall, we are now seeing a situation where in the face of legal fees which out of reach of many, we have the DIY litigant clogging up the Court. According to a freedom of information request by law firm, Slater and Gordon the majority of parents now represent themselves in Court. These cases take longer as litigants struggle to understand what is going on.

Greater use of mediation may help but lack of effective mediators is failing to provide an effective service..

Tuesday November 18, 2014 at 6:10am
The new Care Act will come into force in April 2016 and one of the key aspects of the new legislation is there is a cap on how much self-funders can be required to pay. It is set at £72,000 and there will also be changes to the mean theft threshold, which will rise from the current £23,250 to £118,000 for residential care.

I believe that the new legislation is going to lead to a series of possible financial disputes between local authorities and users of the service.

It is well known from the legislation that not all expenditure counts towards the cap. Crucially, not all expenditure counts. For both residential and home care, any money spent will only count towards the cap if the person needing care had eligible needs – and at local authority rates, rather what you actually spend. For residential care, Hotel costs b (food and accommodation) is set at £12,000 a year and excluded from the cap.

Fundamentally, there is a tension between the local authorities under financial pressure with their desire to minimise care costs, against the desperate wishes of families to protect their financial assets.

The stakes are high.

This poses logistical difficulties for families ,and local authorities. At the moment, families according to research referred to in the Telegraph (2013) tend not to press the detailed financial assessments because they perceive that they will not make the means test and will have to pay. The difficulty with the cap, is that now everyone will need a full assessment in order to benefit.

This will lea to more assesments and more arguments.

Friday November 7, 2014 at 3:25pm
As a result of a constant battle with the Local Authority to secure my daughter Jessica a placement at a specialist college that would provide appropriate support for her, and my failure to do, I sought assistance from Justin to help move this matter forward..

I found that Justin became a great asset, and certainly “opened doors” that had previously been closed to myself. He established whom we should be writing to, he ensured that all parties were made aware of the importance of this placement in relation to Jessicas overall well being and applied just enough “pressure” for the Authority to realise the a decision was needed almost immediately as time was of the essence to secure the placement, and prior to his involvement I was given varied information and the “goal posts” were constantly being moved..

I firmly believe that Justin helped greatly in securing Jessicas placement and felt that he was really easy to work with and had a genuine interest in helping Jessica move her life forward..

Tuesday November 4, 2014 at 3:59pm
According to a recent article in the Mail, more than 100 elderly a week are having properties seized to pay for care home fees Between 30,000-40,000 thought to lose homes this way every year.

The figures – gathered by the finance firm NFU Mutual – showed that over the past five years councils have taken legal action to secure a share in more than 3,000 older peoples’ homes each year. From 2009 to 2014 the 72 councils questioned put a charge on 15,174 homes.

Older people with assets of more than £23,250, must pay their own care bills. Many are forced to sell their homes to meet the costs, which are close to £600 a week for an average care home place.

Councils take out a legal charge on a property when an older person will not pay care bills, and the council has to cover the cost. Often the family has failed to sell the home. Some try to give their property to their children if they suspect they will need costly care. But they must still pay care bills for seven years after the gift is made. During this time, the council will put a charge on the property.

A charge is also taken out in the ‘deferred payment’ scheme, which allows the person to stay in their home. The charge ensures the council can seize and sell the property after the owner dies.

. The number of properties targeted annually rose by more than 10 per cent over the period – from 2,816 in 2009/10 to 3,109 in the financial year which ended in March.

Some people try to transfer assets out of their name to avoid paying for care fees but this poses a dilemma. Transferring an asset out of one's name does not necessarily mean that it will not be taken into account in a means test. Both the local authority and the Pension Service can, when assessing a resident’s eligibility for assistance, look for evidence of deliberate, or intentional, deprivation of capital such as a property. Deliberate deprivation occurs when an individual transfers an asset out of his or her possession to put him or herself in a better position regarding the means test for care home accommodation (or to claim social security benefits).

Tuesday November 4, 2014 at 3:33pm
If your relative has died, it is not automatic that probate is necessary. One can therefore potentially avoid the paperwork. The grant of representation(what you need for probate) may be avoided if the deceased did not have any property in sole name to pass on and the amount in the estate is relatively small. It is usually less than £15,000 but please see below as your bank may have a bearing on this.

According to survey by Which?, banks will allow monies to passed on to the beneficiary provided these amounts below are not exceeded:

Barclays - £30,000

Nationwide - £30,000

Bank of Scotland/Halifax/Lloyds - £25,000

Santander - £25,000

Tesco Bank - £25,000

Sainsbury's Bank - £20,000

Post Office - £15,000

Not all banks are created equal.

Tuesday November 4, 2014 at 3:11pm
We live in more difficult times and the middle ages seem to be feeling it more as shown in a recent Telegraph piece that middle-aged people have been warned they can no longer rely on an inheritance as they will be almost retired before they receive any money.

According to the Telegraph the age at which British adults received an inheritance was rapidly approaching 60, analysis of official data for The Telegraph found.

Some people believe that this is the "end of the traditional inheritance" for people in middle age. I would not got so far as it is an inherent part of human nature to want to provide for your offspring even after one's death. The number of times I have come across people who put themselves in tough personal positions to maximise inheritance for children.

The increase in pensioners living into their nineties, incurring large care bills and other expenses, meant fewer had anything to bequeath to their offspring on death, they said.

In 1999, the average Briton who inherited money was aged just under 53, providing a windfall to clear a mortgage and help children on to the property ladder.

Within the next decade the typical "inheritance age" will have risen to 58, the data showed.

The was said to be due to older people enjoying longer retirements and a fall in the age at which women gave birth between the two world wars.

Wednesday October 15, 2014 at 1:39pm

There has been further fall out from the hacking trial with Rebekah Brooks’s husband Charlie Brooks faling in his costs application for recovery of costs despite being found not guilty.  He lost his attempt to recover the £600,000 in legal fees he incurred as a result of being a co-defendant in the phone-hacking trial.

Mr Justice Saunders also ruled on Wednesday that he was rejecting the application for costs by the News of the World’s former managing editor, Stuart Kuttner.  The judge pointed out he was “satisfied that the defendants’ conduct brought suspicion on themselves and misled the prosecution into thinking that the case against them was stronger than it was”.

I do have a measure of sympathy for the defendants here as they "won" but it is worth pointing out that even if you have been found not guilty and have a costs award made in your favour it is unlikely that you will get all of your costs paid. Indeed, the presumption is you will not.


Wednesday October 15, 2014 at 1:16pm

As we approach a general election we will see all of the political parties making some kind of play for the elderly vote. One of the key issues is Inheritance Tax and the IHT threshold of £325k each; The headline remains the government aspiration to increase the IHT theshold to £1million. Note, aspiration as it remains to be seen if this willl happen.

 

 

Tuesday October 7, 2014 at 1:26pm
With the 25th anniversary of the founding of the world wide web, there are now calls led by Sir Tim Berners-Lee for a Digital Bill of Rights in the UK.

I think one of the complaints that people have about our political classes is that they seem out of touch with everyday issues.

We will see if next year anyone picks up the baton.

Research just published claims to show that 40 percent of adults in the UK have lost trust in the web over the last year - a situation that has been caused by a rising tide of government surveillance and privacy breaches..

The research also found that 57 percent of respondents think there should be a `Digital Bill of Rights' in the UK. .

Sir Tim Berners-Lee, credited as the inventor of the World Wide Web and founder of the World Wide Web Foundation, said that a trusted Web is crucial to the UK's future..

"Our tech sector has led the way out of recession, creating more jobs than any other industry in recent years. A Britain in which people no longer trust the Web as a safe and private place will be a Britain that is less free, less creative and ultimately less prosperous," he said, adding that the 2015 General Election is an opportunity for party leaders to enact a new digital bill of rights.".

According to Berners-Lee libel laws are reasonable. Destroying facts that are true is much more worrying. .

He also refers to the fact that the European Court of Justice (ECJ) ruled that Google should heed those seeking the “right to be forgotten” and hide embarrassing stories from search engine results. .

The rationale was to help ordinary people escape their past, especially if caught in compromising situations.

As ever this is a balancing act between the potency of the search engine which can remember many details about us and the right to some privacy and this has been covered by us previously.

I think one of the problems we have is that the political classes simply do not get it and I wonder if they have the flair to do what is right.

Monday October 6, 2014 at 3:53pm
As many of you will know, new rules governing the way estates are divided when someone dies without a will have come into play.

This is relevant for the bulk of people as almost two-thirds of UK adults have not written a will..

Of those that have written a will, almost a third are out of date.

From experience there is still too much of a trend to doing your own will which leads to problems.

The new rules principally affect estates worth over £250,000, but rising house prices mean that more estates will breach this threshold.

Figures from the Office for National Statistics showed that the average UK house price was £272,000 in July.

The main change in the reforms, which are effective in England and Wales from 1st October is that widowed spouses will inherit a larger share than is currently allocated under intestacy rules at the expense of the claims of any children.

While the reforms look to bring many aspects of the rules up-to-date, they have been criticised for not addressing all of the perceived injustices that can arise under intestacy. In particular, the unmarried continue to have no claim to their late partner’s estate.

We are all aware of the number of people who are not married, but their legal rights are shakey. No a common-law spouse does not have any legal rights.

From October 1st, a widowed spouse will inherit all of the estate, however high its value.

Where there are surviving children, the widow will now receive the first £250,000 of the estate plus half of the remaining assets.

The other half of the remaining assets will be shared equally among any children.

What I would like to see is a decision made on if unmarried people should have rights if they live with someone for a set period. The alternative is that individuals will make legal claims for reasonable provision. This protection comes in the shape of the Inheritance (Provision for Family and Dependants) Act 1975; known as the Inheritance Act. The Inheritance Act is there to help spouses, children, civil partners, cohabitees and other surviving dependants who have been left to cope without sufficient money to enable them to get by.

If a will (or intestacy in this case) fails to make 'reasonable financial provision' then the Inheritance Act will come into play..

In order to bring a claim you must satisfy the Court that you are entitled to make the claim. The Act states that the following must apply: 1.The deceased must have been living in England and Wales at the time of their death..

2.You, as the applicant, must be one of the following:.

- the spouse or civil partner of the deceased;.

- the former spouse or former civil partner of the deceased (as long as the deceased has not re-married or formed another civil partnership);.

- a child of the deceased;.

- where there is a marriage or civil partnership, a person who was treated by the deceased as a child of the family; - immediately before the death of the deceased you were dependent, either wholly or partly, on the deceased. - if cohabiting with the deceased, then you must have been living with the deceased for a period of at least two years..

3.The application must be made within six months of the grant of probate or letters of administration.

Whether one has made a will or not, this is an area of growth, namely trying to obtain reasonable provision when either the will or intestacy fails to provide.

 

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