Monthly Archives: October 2017

Courts Head sets out next steps in digitisation of family justice

The Court and Tribunal Service (HMCTS) is now entering into ‘phase 2′ of its digital transformation process.While many lawyers remain cynical about any government-funded IT project within the justice system, and while there are legitimate concerns still to be addressed about access to justice, there is no doubt that Susan Acland-Hood is driving a strong reform agenda designed to bring the court system into the 21st century.’Phase 2’ is expected to last 18 months, meaning that by early 2019 we can expect to see uncontested divorces conducted entirely online and, more ambitiously, it is being suggested that uncontested financial settlements could be resolved online as well.A considerable amount of effort also seems to be aimed at ‘public law’ children cases (considering whether to take children into care) with developments that could eventually be rolled out elsewhere, including a digital document management system that might one day see all courts go entirely paper-free.We’ll be keeping an eye on this one with interest…

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Lies, Damned Lies and Divorce

You may have seen many commentators, the BBC included, reporting this week that divorces were up in 2016 by 5.8% – “the biggest year-on-year rise since 1985”!There is no real news here at all.  Divorces in 2015 were at their lowest since 1971 and were an unexpected 9% drop on 2014 – the 2016 figure was just a reversion to the mean. The reality is that divorce numbers have been dropping pretty steadily from a high of 165,000 in 1993 to 107,000 in 2016.Also, the claim that “the number of divorces last year in England and Wales was the highest since 2009” is simply wrong. The data shows the number of divorces was as follows:2016 – 106,9592015 – 101,0552014 – 111,1692013 – 114.7202012 – 118,1402011 – 117, 5582010 – 119,5892009 – 113,949So 2016 had the highest number of divorces since, er, 2014. Oh.It seems that divorce, as with so many things in life, is plagued not only by lies and damned lies but by statistics too.

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Equal pay and construction

Interesting article from my colleague and head of Employment and Dispute Resolution in Construction News last week….  

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Mental health problems force thousands out of work

A recent report commissioned by the government has estimated that approximately 300,000 people lose their jobs every year because of mental health problems.The authors of the report found that employees with mental health problems were 50% more likely to lose their job compared to those with physical disabilities.  But of course the relevant legislation, the Equality Act 2010, treats mental and physical conditions the same; either can amount to a disability if it is sufficiently serious.  Disabled employees have extra protection under the law.  Not only must employers not harass or directly discriminate against them; they also have a duty to make reasonable adjustments to accommodate them.  Reasonable adjustments are not just limited to physical features like wheelchairs ramps.  They can include:• Additional training and supervision• Extra sick leave• Flexible hours or working from home• Changing some of the employee’s duties or allocating them a different roleBut employers can only make reasonable adjustments if they are aware of the need, so this duty only kicks in when an employer knows about the disability, or if they could reasonably be expected to have known.  So employers need to be alert to any signs from their employees indicating that they may have a long-term health problem.  In particular, they should look for sick notes that refer to “stress”, which is often a euphemism for conditions like depression.  Employees need to talk about their mental health problems, and the support they need, with their employers.  This is obviously easier said than done, with many employees lacking confidence that their employers will be sympathetic or helpful.  But they should understand that the law on disability discrimination is on their side.   

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Consultation on changes to Construction Act

It will be interesting to see the industry’s response to this consultation review.  I have my own views which I will be sharing via the online survey…

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FinTech companies struggling to get customer data from banks may now have leverage

Banks that delay in providing customer data are under scrutiny. The suspicion is that they are deliberately hindering companies they see as potential competitors.Customers give their consent to the transfer of data necessary to use the FinTech company’s services. Competition regulators have conduted dawn raids on banks suspected of intentionally holding up the transfer.The raids were reportedly on Polish and Dutch banks, but they were coordinated by the European Commission. Those having difficulty getting data from UK banks can complain to the Commission or to the UK authorities, or they could threaten to do so, to try to speed up the process.

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Retiring family judge uses final speech to slam legal aid cuts

Mr Justice Bodey has used his valedictory speech to highlight the extent to which legal aid cuts made in 2013 have impacted many people’s ability to achieve justice for themselves or the children in the family justice system.Since the Legal Aid, Sentencing and Punishment of Offenders Act 2012 came into effect, legal aid has no longer been available to litigants in matrimonial finance or private children law cases other than in a small number of cases featuring domestic violence.  As a result, many of those most in need of proper support are left to navigate their way through the family justice system without any advice or understanding of what is expected of them.As Bodey J highlights, this has a knock-on effect both on judges and on the chronically underfunded court system, with poorly informed litigants in person clogging up the already rusting wheels of justice.At Collyer Bristow we now circumvent this mess as far as possible by directing our clients into arbitration and private FDRs – essentially BUPA to the court’s NHS.  That’s great for our clients, but it shouldn’t have to be that way, and in some ways it will exacerbate the problem by creating a true two-tier system, with private justice for the well off and a barely functioning system for everyone else.Family lawyers are almost universally rallying around Bodey’s comments. In my view it’s unlikely, however, that the message will get through to those holding the purse strings.

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Residential service charges – Landlords beware your obligations

The Upper Tribunal (Lands Chamber) has dismissed a landlord’s appeal against a decision of the First-tier Tribunal (Property Chamber) relating to insurance premiums charged to tenants under the terms of their leases. It held that the insurance premiums had not been reasonably incurred in accordance with s19(1) of the Landlord and Tenant Act 1985. Costs charged to a tenant through the service charge under certain residential leases should be reasonably incurred in accordance with s19(1) of the 1985 Act. In the case of COS Services Ltd v Nicholson [2017] UKUT 382, the court held that in considering whether insurance premiums have been reasonably incurred, a landlord is required to explain the process by which the particular policy and premium have been selected, with reference to the steps taken to assess the current market. Although landlords are not expected to show that their insurance premiums are the lowest in the market, tenants may place before the Tribunal such quotations as they have been able to obtain, if those policies are genuinely comparable.Landlords are free to obtain a block insurance policy should they wish to do so. However, where the insurance premium is higher than it would have been under an alternative policy, landlords should be prepared to demonstrate that the insurance policy provides the tenant a sufficient advantage and the extra cost is therefore justified.  Landlords should carefully consider both the provisions of the lease and their statutory obligations when dealing with residential service charges. If in doubt, they should seek the advice of a solicitor.

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Unsent text accepted as dead man’s Will by Australian court

An Australian court has ruled that a text message which an individual typed and stored in the drafts folder on his phone, but did not send, is an official Will.The 55-year-old man had composed a text message addressed to his brother, in which he gave “all that I have” to his brother and nephew.  The message was found in the drafts folder on the man’s phone after he took his own life last year.  Brisbane Supreme Court ruled that the wording of the text indicated that the man intended it to act as his Will.Justice Susan Brown said the “informal nature” of the message did not stop it representing the man’s intentions, especially as it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”.In England & Wales, the formalities for a valid Will are set out in Section 9 of the Wills Act 1837:the Will must be in writing;be signed by the testator, or signed on behalf of the testator in his presence and by his direction; andthe testator’s signature (or acknowledgement) must be made in the presence of two witnesses, present at the same time.The Law Commission is currently conducting a consultation on Wills which is open to the public until 10 November 2017.  The proposals currently being consulted on include, amongst others, the proposal to enable the court to dispense with the formalities for a Will where it is clear what the deceased wanted.It will be interesting to see how the consultation progresses and what the outcome will be.

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Race Discrimination and Statistics – the story from the Employment Tribunal

There’s been a lot in the news today about race and statistics. The Government has launched a website with the results of its race disparity audit. As employment lawyers, the Employment Tribunal statistics are obviously of particular interest to us – so what story do they tell?  In 2016 / 2017 there were 2,240 race discrimination claims issued in the Employment Tribunal. How does this compare to other types of discrimination? There are fewer claims than for age (7,500) and disability (4,000) and a lot fewer than sex (including equal pay and pregnancy – 20,000), but more than religion (400) and sexual orientation (200).  Race discrimination claims have dropped significantly since 2013, but this has little to do with improvements in equal opportunities. Fees were introduced to the Employment Tribunals in 2013 and there was a significant decrease in claims across the board. A recent Supreme Court decision abolished the fees, but that has not had time to be reflected in the available statistics.  However, we can expect the number of discrimination claims to increase this year, and the average number of race discrimination claims before the introduction of fees was 5,000 per year.   Do race claims normally succeed in the Employment Tribunal? No. Only 3% of issued claims go all the way to a final hearing and win. But an additional 36% of claims are settled somewhere before hearing – so that probably counts as a “win” for the Claimant. However, that still leaves a majority of claims that either fail at Tribunal, or get dropped somewhere along the way. This is not unique to race claims, the statistics are broadly similar to other types of discrimination claims. The only two that tend to succeed more often are disability (4% win, 42% settle) and pregnancy (6% win, 47% settle).How much are race claims worth? So few cases actually get to the stage of an award that the annual statistics can be unreliable and thrown out by a single large award. Looking at an average from the last 10 years is more helpful, and this shows that race claims tend to be the most costly of all types of discrimination, with an average award of £26,900, compared to £21,900 for sex and £15,500 for age.Source: https://www.gov.uk/government/collections/tribunals-statistics

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