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Human Law Mediation Blog: Recent Posts

Friday December 19, 2014 at 9:54am
As we enter the time of Christmas goodwill, it is perhaps worth reflecting that some of us will not be experiencing such harmony and will be less fortunate. A case in point are the two sets of neighbours recently featured in the press who have spent £500,000(half a million) on legal fees over a few feet of a muddy ditch.

The parties in dispute are the Gilks and the Wimslows; Lord Justice Bean, one of the presiding judges succinctly observed "This case is about a patch of land a few feet either way.What are the costs in this case so far? Half a million? I imagine that the disputed rights of way is worth rather less."

In my experience judges absolutely detest dealing with boundary disputes because their view is, what is the point?.

It makes for high risk litigation as well.

I can remember many years ago as a younger lawyer turning up to Court for a mini Court appointment with my client and the opposing side. The Judge got us all together, gave some legal analysis, explained how much he hated boundary disputes and asked us how much our legal costs were.

We plumped up with a figure.

The judge turned to me and said "Mr Patten what could you buy with that sum?"

I said "A BMW, sir"

The judge replied "You are damn right, Mr Patten. Don't you think that it would be much better that the parties spent their money on a BMW rather than a dispute like this?! Now, go outside all of you and sort this case immediately before I see you again."

Not surprisingly, we did a deal.

I would like to wish you all a Merry Christmas.

Monday December 1, 2014 at 11:13am
We are approaching a general election next year, and as what happened at the last election, the Conservative party will have a manifesto commitment to raise the inheritance tax threshold to £1 million.

For clarity, each individual has a new rate band of £325,000 tax-free and if they are married there is the prospect of transferring all of their estate to a spouse inheritance tax-free, with the survivor having a maximum of £650,000 to handover inheritance tax-free.

It may very well be the desire of the current prime minister and chancellor to raise this threshold, but this is simply not going to happen.

The first reason is clear. It is obvious no political party is going to get a majority next year. This will mean if the Conservatives form the next government they will be hamstrung by the political parties they are in government with all the parties they doing a deal with. The Conservative Party can promise what they want but as they are not going to get a majority, this pledge is going to be difficult to implement.

The second reason is even more fundamental, we are still in an era of austerity where the government is desperate to maximise its tax receipts in order to reduce the government deficit. No matter how the Conservative party spin this, they have not eliminated the deficit.

And here is the rub. Inheritance tax is a nice earner for the government stop due to rising house prices, more people are being impacted by the £325,000 threshold which has not changed since April 2009. Had the threshold being kept in line with inflation, it would now have risen to £380,152. At 40% of the value of any state above £325,000, Britain has the highest rates of inheritance tax in Europe.

Total payments reached £3.4 billion to the Treasury which is close to the high of receipts at pre-recession levels. This is a nice earner and the Conservatives in power have done nothing to stem it.

Tuesday November 18, 2014 at 6:40am
As has been reported earlier this year, the government legal aid cuts have led to the former deputy speaker, Nigel Evans being unable to recover his £120,000 of legal costs despite being found innocent in charges of sexual assaults.

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 and how with the cutting of the availability of legal aid it is now creating what can only be called miscarriages of justice.

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. However, as was picked up in the Sunday Times last week, a Swindon family are not eligible for legal aid 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.

That means that individuals who are just above the threshold are stuck in a twilight zone where they cannot afford to pay legal fees but are just earning enough to be ineligible for legal aid.

Unsurprisingly this is leading to people seeking to represent themselves in Court. According to a freedom of information request by law firm, Slater and Gordon the majority of parents now represent themselves in Divorce Courts. We now have the DIY litigant clogging up the Court. These cases take longer as litigants struggle to understand what is going on.

Greater use of mediation may help in that disputes can be resolved sooner, but lack of effective mediators is failing to provide an effective service....Overall it is pretty depressing.

Tuesday November 18, 2014 at 6:10am
The new Care Act will come into force in April 2016 and one of its key aspects 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 (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 see who will benefit.

This will lead to more assesments and more arguments. At a time when the government is desperately trying to manage costs this may lead to local authorities having to send in more resources.

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.

 

 

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