Magdalen Chambers are again ranked as a leading set by the Legal 500

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Magdalen Chambers is thoroughly delighted to announce that for the fourth successive year we have been rated as a leading set on the Western Circuit by the prestigious Legal 500 directory. The authors mentioned chambers specialism in civil and family law, and our key practice areas of family finance and public children law matters.

They say the family team at Magdalen Chambers is ‘very strong with respect to financial and children work’. In public children law matters, the set has seen a recent increase in instructions involving sexual abuse and non-accidental injuries. They also praise chambers for being “equally adept in planning, commercial and insolvency matters”, and for our expertise in property law.

In addition to chambers leading set ranking, 9 individual members were praised by clients for their work in their respective fields, and ranked in tier 1 on the Western Circuit for their expertise.

The editors of the Legal 500 singled out the following areas of law as being particular strengths of chambers’ practice:

  • Commercial, Banking, Insolvency and Chancery Law;
  • Construction, Planning and Environment;
  • Family and Children Law;
  • Personal Injury and Clinical Negligence;
  • Property Law

The members of chambers individually recognised by the directory as being in the top tier of practitioners are:

  • Joint Head of Chambers Michael Berkley for Commercial, Banking, Insolvency and Chancery law, and is described as “A robust advocate with a very good bedside manner” and for his work in Property law they say “Clients are reassured by his confident demeanour”.
  • Joint Head of Chambers Christopher Naish in the field of Family and Children law was described as “Very intelligent, calm, personable, courteous, analytical and thorough”
  • Rupert Chapman, Head of the Family team, was “Recommended for financial remedy cases and private law children matters”
  • Tony Ward recognised for his expertise in family work is also described as “Very experienced in financial disputes”.
  • Head of the Regulatory, Public and Administrative team, Gavin Collett was ranked in tier one, with the editors mentioning that “His practice encompasses planning, highways, and rights of way” and that “he made a successful challenge to the Secretary of State in the High Court”
  • William Hopkin, who heads up the Commercial team, was praised for being “Extremely able at assimilating complex information quickly”
  • Head of the Civil team, and leading property barrister, Russell James was described as having “a niche practice in homelessness law”
  • Carol Mashembo, a senior member of the family team, recognised in tier 1, has been described as “Experienced in cases involving same-sex families”.
  • Jonathan O’Neill was praised as “A specialist in personal injury matters” and for his expertise in property law as “An impressive cross-examiner”

In addition to the plaudits received by chambers’ members, two of our clerking team are mentioned in this years’ publication. Senior Clerk, James Basden and civil clerk Harry Turner were praised by clients for providing “a very effective personable service and are also very commercial in terms of fees” and that solicitors would “thoroughly recommend them”.

Burden of Proof under the Equality Act 2010 and Adverse Inferences

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Burden of Proof under the Equality Act 2010 and Adverse Inferences: Efobi v Royal Mail Group Limited (Judgment handed down on 10 August 2017). 

Prior to the advent of the Equality Act 2010 the burden of proof under the earlier legislation was stated by the Court of Appeal in Igen v Wong [2005] EWCA Civ 142. The first stage was that the Claimant had to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed, or is treated as having committed, the unlawful act of discrimination. If that initial burden was established by the Claimant, the legislation then required the Respondent to show that unlawful discrimination had not occurred.

Section 136 of the Equality Act 2010 provides:

“136 Burden of proof

(1)     This section applies to any proceedings relating to a contravention of this Act.

(2)     If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

(3)     But subsection (2) does not apply if A shows that A did not contravene the provision.

…”

It is of note that the explanatory notes referred to in the Preamble of the Act state that “…the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act…”

In Efobi v Royal Mail Group Ltd UKEAT/0203/16/DA, a race discrimination case under the Equality Act 2010, the EAT considered the interpretation of S136 after the tribunal at first instance applied Igen v Wong. The EAT held that section 136 does not put any burden on the Claimant and that it was explicit in not placing any burden on the Claimant. S136 requires the Tribunal to consider all the evidence, from all sources, at the end of the hearing so as to decide whether or not there are facts, from which in the absence of an explanation, it could conclude that there had been discrimination. This therefore means that S136 prohibits a submission of no case to answer at the close of the Claimant’s case because the Tribunal has to evaluate all of the evidence, including that of the Respondent, before considering whether there is sufficient evidence to require the Respondent to show that discrimination did not occur.

Laing DBE J acknowledged that this was not the way the Explanatory Notes to the Equality Act 2010 interpreted S136 and although they can be used to aid construction of the statute they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statue in question. It was further acknowledged that this was not the way that the burden of proof had been understood in cases starting with Igen v Wong but the statutory provisions under consideration in those cases were worded differently to the Equality Act 2010.

Efobi is also a salutary warning to Respondents that choose, without explanation, not to adduce evidence of matters in their own knowledge in that they run the risk that the Tribunal may draw an adverse inference when considering whether S136(2) has been satisfied. In Efobi there was very little evidence adduced before the Tribunal as to the race and national origins of the successful candidates and the Respondent had not called, as witnesses, any of the staff who made decisions in relation to Claimant’s application for promotion. Although not referred to as part of Laing J’s discussion, Lord Sumption’s Judgment in Prest v Petrodel Resources Ltd [2013] UKSC 34 and Wisniewski v Central Manchester Health Authority CA [1998] PIQR P324 were cited in argument.

In Wisniewski, a clinical negligence case in which the Senior House Officer on call did not give evidence, Brooke LJ derived the following principles in relation to inferences:

(1)       In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2)      If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3)       There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4)       If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.

Conclusion

Efobi has not only clarified that there is not a burden of proof on the Claimant as part of S136(2) but has also highlighted the need for Respondents to adduce evidence if they do not want to run the risk of an adverse inference being drawn as to why a witness has not been called or why disclosure of other evidence has not been provided. It should, however, be noted that before an inference on any particular issue can be drawn there must be some evidence before the court or tribunal on that issue. Accordingly, Efobi is a clear warning to Respondents who do not call alleged discriminators, in the absence of a good explanation, to give evidence.

Permission to appeal has been sought from the Court of Appeal and a Judicial Decision on the papers is currently awaited.

James Bax

Magdalen Chambers

 

Can I make this Order?

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It not infrequently happens that a District Judge, when being asked to approve a Consent Order in financial remedy proceedings involving the transfer of property, questions the jurisdictional basis for an order that one party releases the other from the mortgage on the property and indemnifies the other party thereto.

The recent decision of Mr Justice Mostyn CH v WH [2017] EWHC 2379 (Fam) confirms that such an order is permissible and explains why.

The previous practice (and, perhaps for some, a continuing practice) was to include the release and indemnification provisions by way of an undertaking.

No doubt that practice arose from Livesey v Jenkins [1985] AC 424 at 444G, where Lord Brandon stated that there was nothing in section 23 or 24 of the Matrimonial Causes Act 1973 which directly empowered the court to make an order requiring (in that case) the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Lord Brandon said this should have been incorporated in undertakings.

However, in the case of CH v WH [2017] EWHC 2379 (Fam), Mr Justice Mostyn has sent a clear message that “sterile, technical objections to orders in these terms must cease”.

The case before him concerned a draft final consent order which had been rejected by a Deputy District Judge and District Judge on the ground that the Family Court lacked the power to order that “each party must use his or her best endeavours to procure the release of the other party from the mortgage on the property that he or she received and, in any event, must indemnify that other party against liability thereunder”. Both Judges it would appear decided that such an order fell outside the ambit of the Matrimonial Causes Act.

The order under scrutiny had been drafted in accordance with the Financial Remedies Omnibus which can be found here.

Mostyn J accepted that the wording of sections 23 and 24 taken literally does not make provision for the court to make orders of this nature. However, he referred to section 30, which gives the court power when making a property adjustment order to direct that the matter be referred to conveyancing counsel to settle a proper instrument to be executed by all necessary parties. Mostyn J observed that such an instrument could “contain terms which furnish all necessary indemnities and the obligations to pay instalments in relation to a mortgage secured on the property”. He therefore did not accept that such an order was outside the Matrimonial Causes Act.

However, his main reason for disagreeing with the approach taken by the District Judges can be found in the rationale explained at paragraph 84 of the Financial Remedies Working Group’s first report dated 31st July 2014 where it was stated:

‘A number of those responding to the consultation process queried whether, in relation to mortgage payments and other household outgoings, the court had power to direct one party to make such payments and/or indemnify the other against non-payment. Such obligations have traditionally been included as undertakings, but their inclusion as directions in the draft standard orders implied that the court had such powers when undertakings were not offered. Mostyn J has expressed the following view in justification of this inclusion:-

“Under the new s31E(1)(a) MFPA 1984 in any proceedings in the family court, the court may make any order which could be made by the High Court if the proceedings were in the High Court. The High Court has power to order or decree an indemnity. This is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873. It was the very relief initially ordered in Salomon v A Salomon and Co Ltd [1897] AC 22 (but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies). As to mortgage and other outgoings in my view the power to order A to make payment to B plainly includes the power to order A to make payments on behalf of B.  The greater includes the lesser. It was necessary to spell out the power to order the payment of mortgage and other outgoings in Part IV FLA 1996 proceedings (see s40(1)(a)) because the wider direct power does not exist in those proceedings. It would be anomalous if the power to order payment of outgoings only existed in Part 4 but not FR proceedings. It is necessary in my view for the court to have these powers if only to cover the position if someone is not prepared to give the necessary undertakings or is not participating in the proceedings.”‘

Moreover, Mostyn J stated that the Family Court has all the powers of the High Court, which includes the equitable power to order an indemnity and an injunction in support of a legal right. An order to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right. Mostyn J stated that this provision is squarely within the power of the High Court to order and is therefore within the power of the Family Court.

This Judgment is a very useful resource to financial remedy practitioners to reassure the Family Court of its power to make an order requiring release from a mortgage and indemnification thereto.

Veterans, treatment, support, the military charities, and how they can help us

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Following the welcome withdrawal of British Combat troops from Afghanistan it is tempting to think that the problems faced by our servicemen and women are coming to an end.  In fact, the opposite seems to be the case.

This article is designed to help practitioners in the Family Court identify sources of help for ex or serving servicemen and women and to help you navigate through the bewildering array of choice.

As this is an article about servicemen and for servicemen I’m afraid that it will be full of acronyms, as the services love a SLAMOA (a stupid, long and meaningless abbreviation). I apologise in advance.

It’s not just acronyms that require explanation.  The service charities have their own terms of art for describing those that they help.  Servicemen and women are those currently in uniform.  They describe everyone else as a “Veteran” so it’s generally, although not exclusively, going to be Veterans that we come across in the Family Court.

This article was inspired the problems encountered whilst representing a veteran who was in a marriage of long standing and to which he and his wife were committed.  He suffered from Post-Traumatic Stress Disorder as a result of his service and he needed effective help.  His psychiatric report read as follows:

“He informed me that he had seen a counsellor for his symptoms, but recalled that she had found his account of his battlefield experiences to be distressing and had missed a number of appointments with him before eventually terminating the therapy” [altered a little to preserve confidentiality!]

As the friend to whom I refer below observed, “What your client needs is a therapist with some spine!”

The hunt for a therapist who was a bit more use was on, but where to start?

The military charities

These seemed the obvious place to look for help; but the first thing that was apparent was that are a bewildering number of Military Charities, some well-known, some terribly obscure.
Perhaps the best known is the Royal British Legion (The Legion)1 famous for the annual poppy appeal.  Equally well known is Help for Heroes a charity which has risen from a standing start to do a fantastic job of fundraising and supporting those very seriously wounded.  A close third in a tight race for public profile is SSAFA3, (which stands for Soldiers, Sailors and Airmens Families Association).  Then come the three Services own charities – The Soldier’s Charity (formerly The Army Benevolent fund/ABF), the Royal Navy and Royal Marines Charity (RNRMC) and the Royal Air Force Benevolent Fund  (RAFBF).  In addition to these well-known charities there are many, many others such as Combat Stress, the War Widow’s Association and BLESMA which have all been created to help specific, often ‘niche’ veteran issues.  There’s even the Forces Children’s Trust which is a charity devoted to helping children whose father or mother has died or has sustained life threatening injuries whilst serving as a member of the British Armed Forces.  There is then a bewildering array of smaller (and sometimes dubious) others.

Fortunately it’s not necessary to list all or even most of the specialist charities nor to remember their names as they have an umbrella organisation known as which shelters under the bewilderingly obscure SLAMOA of COBSEO which presumably tells you all you need to know about it!

The point to note is that when it comes to delivering support where it’s needed the main Service charities work very closely together – we just need to tap into the right place.

So how do your client access the help that’s available?

After a frustrating hour or two of research I phoned a friend.  In this case a regional director for the Soldier’s Charity.  He explained that to make things simple for the veterans, the Legion and SSAFA are usually the first port-of-call.  A case worker will be appointed.  They will contact the veteran, often within a few hours and arrange to assess their needs.  They will then point them in the right direction and will remain on hand to guide them throughout.  Contact details are all below.  I saw this done by a colleague at Court.  They phoned just before going into a directions hearing.  By the time it was finished their client had a case worker, an appointment and a telephone number to call.  By the next hearing a couple of days later there had been an initial assessment and their client was waiting for the support which was expected imminently.  It really can be that quick.

At that point it’s job done for the busy family practitioner not least because once Service Charities have identified relevant need they will fund therapy or support in a way that seems quite miraculous to those of us used to battering our heads against the social services and the health service to try to get much needed help.

Who pays for it?

Once need is confirmed and a solution identified, one of the Service charities will step in.  For example Combat Stressx, a very useful charity in our line of work, have funding streams in place to enable them to move at short notice.  It’s all a very different experience to making part 25 compliant applications late on a Friday at the end of a busy list in front of a Judge who finds the difference between “necessary” and “overwhelmingly desirable” an irresistible opportunity to waste a few more hours of our time.

What about support for families?
It’s not just veterans who need support.  The stresses and strains on the families of those Serving and veterans can also be acute, although hopefully less so now that the endless cycle of combat tours has ended, at least until Latvia kicks off.  The Services charities are also set up to fund help for families where it’s needed.  Again this is best accessed through SSAFA or the Legion.

And finally is he a veteran or delusional?
It’s a sad reflection on society that many seek to blame active service for their problems when the nearest that they’ve actually been to serving their country has been spending their dole cheque in the Docker’s fists.

Those of us who practice in areas where there is a high concentration of veterans will all have our own techniques for separating those who have really served from those who just think that it sounds like a good excuse to beat their wives or abuse their children.

Here are a few of them.  Every veteran will know their number; ask her what it was.  If she says she can’t remember, alarm bells should ring loudly.  Every veteran will have kept their discharge papers (unless they were dishonourably discharged) ask to see them.  If they can’t produce them alarm bells should ring although perhaps a bit less loudly than if they don’t know their number.  Every veteran will be able to tell you what their last unit was, if it’s an unintelligible string of letters and numbers pronounced individually it’s probably true.  If they refuse to tell you because it’s a secret, it’s Walter Mitty time as even the most secret organisation has a plausible cover story.

The Armed Forces are keen to stress the moral obligation between the nation, the government and the Armed Forces; they call it the Armed Forces Covenant.  This has nothing to do with that.  The resources that identified in this article are the Services and the Service ‘family’ (i.e. charities) looking after their own.  They are there to help, know what they are doing and can make our (legal) lives easier; use them.

With my thanks to Charles Dunphie, DL, of the Soldiers’ Charity for his help.

Footnotes and useful websites

  1. The Royal British Legion.

http://www.britishlegion.org.uk/can-we-help/financial-assistance/grants-and-loans

Helpline: 0808 802 8080,

  1. SSAFA

https://www.ssafa.org.uk/help-you

Helpline: 0800 731 4880

First published in Family Affairs in 2015

Early Neutral Evaluation: An Alternative Approach to the Resolution of Financial Remedy Cases

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Paul Waterworth writes

One of the fascinations of the practice of family law is the way in which the law itself and the procedures involved in its application, evolve to suit changing social needs and the constant search for more (cost) effective processes. On some issues, it is clear that parliament has been ahead of general public sentiment and on others, the  ever flexible common law has often found ways of finding solutions outside legislation. The adoption of marriage for same sex couples is one example of the former. The latter is exemplified by the partial relief of the plight of unmarried couples in the resolution of property disputes by constructive use of the law of trusts, such as was seen in the case of Stack v Dowden [2007] UKHL 17 in which Lady Hale found that “many factors other than financial contributions may be relevant to divining the parties’ true intentions”.

In the practice of financial remedy applications (still then called applications for “ancillary relief” – even the nomenclature evolves), it is now nearly twenty years since the introduction of Financial Dispute Resolution (FDR) hearings as part of the formal court process. It is easy to forget how revolutionary such a development appeared at the time. By and large, FDR’s have been successful with many cases settling at or soon after such hearings.

It has to be accepted, however, that formal court FDR’s are not without their problems. There is generally acknowledged to be a lack of adequate court time for each hearing. The number of cases listed and the late production by practitioners of case summaries and copies of offers usually means that there is insufficient time for adequate preparation and consideration by the judge. The inappropriate listing of some cases before part time judges with little or no experience of this area of the law renders some FDR’s of little value, at least in court (although at least the parties are brought together which makes discussions more likely). Experience shows that  there is virtually no prospect of finding a solution at a FDR where neither party is legally represented.

FDR’s come at a relatively advanced stage of the formal court process. By then, even in the simplest of cases, much work will have been undertaken, at no little expense to the parties. Hopefully, there will have been an exchange of financial information and “full and frank” disclosure; documents will have been examined in detail; consideration will have been given to the issues, such as whether the case is one in which a departure from equality can and should be argued; pension information will have been obtained and often, expert advice on the possible ways of sharing the benefits. In many cases, valuations of property and other assets will have been prepared and agreed or the cause of disagreement identified; statements will have been drafted and served. Advice will have been tendered by solicitors and sometimes also by counsel and offers and counter-offers made and considered.

One of the great strengths of our system is that the majority of practitioners, seeking to achieve the most suitable result available for their clients, form a view, as a case progresses, as to the likely outcome. Genuine attempts are usually made to find a solution by negotiated agreement between the parties. Even, however, where there is goodwill between the parties (not always obvious)  and their lawyers (usually, but not inevitably present), there can be genuine differences of opinion as to what amounts to the fair solution, which, of course, is the goal of the process.

When Baroness Deech was introducing to parliament her bill seeking to amend the basis upon which financial disputes on divorce were resolved and to replace it with a formulaic approach, she commented that it was recognised that judicial intervention was an excellent method of resolution under the present system. She argued, however, that that intervention came “late” in the process. She also said that the current law in this area, with its wide discretion for judges, was too unpredictable, even though, in her proposed replacement, discretion would be retained where required.

It is clear that there are many cases where lawyers are able to give their clients sound advice as to the likely outcome. There are also many examples where, for whatever reason, such advice is not accepted and the case ploughs on, with ever increasing costs and often growing inflexibility by and rancour between the parties.

It is for some of these reasons that practitioners are increasingly turning to other methods of resolving financial (and other) disputes arising on divorce. One such method which is rapidly gaining traction is the obtaining an early evaluation of the case from a neutral expert, frequently an experienced practitioner not involved in the case or a retired judge. Practitioners are recognising that such a system provides an independent and reliable additional resource which they can utilise for the benefit of  clients and which is cost effective and quick.

Early neutral evaluation has sometimes been described as “private judging”. Technically, the system is evaluation or assessment at any stage of the process, not merely towards the end which, typically, is the case at FDR’s in the court process. Evaluation is  usually undertaken on the joint instructions of the parties but can be undertaken at the instance of only one party. The evaluation can relate to a case as a whole or only part of it, perhaps to a particular asset or issue, even one that is temporary, pending a final settlement.

One of the significant advantages of early neutral evaluation is that it can be take place very much more quickly than can a hearing in court, for it is now commonplace for there to be very considerable delays between the first court appointment and the later FDR hearing. At evaluation meetings, more time, often very much more (a whole day is not uncommon), can be given to the parties than can be accommodated in a busy court list. The process can also be shaped to allow time for the parties, together or separately, if necessary with their legal advisors, to consider privately what has been said at the end or even part way through the process.

The meetings take place in the presence of lawyers and their informal nature means that they are likely also to be useful to those who are not represented and therefore without legal advice.

Early neutral evaluation meetings can be tailored to the needs of the individuals and the case. Assessment can be given in simple cases as well as those which are more complex and can even take place before proceedings have begun. The more information and material the consultant has, the more likely that a clear view can be expressed. The process is confidential and there can be no publicity unless agreed between the parties (which is rare). The parties can decide the extent to which, if at all, what has been discussed at early neutral evaluation meetings can be referred to if the case proceeds to court. The date of the evaluation meeting can be fixed to suit the availability of the parties and the consultant.

The purpose of the evaluation is for the consultant to make an assessment of the case, or part of it and to express a view of the likely outcome. It is only if the parties specifically agree that this should be the case that they would be bound by the assessment: otherwise the consultant has no legal power to decide facts, let alone a case as a whole. The process is advisory to the parties. If an agreement is reached, it will be for the parties to draft a document recording that agreement, normally   followed by an application for a court order (usually but not invariably, with the help of lawyers because of the need to ensure that such documents are legally sound).

Disputes relating to finance, indeed any issues arising on separation and divorce can be painful and bitter. In the traditional court process, it is often only when the parties arrive at court that constructive discussions take place. However, it is inevitable that  parties, when at court, usually feel under extreme pressure: it is undesirable, if there is a viable alternative, that they should be asked to make immediate decisions on very important decisions, frequently involving lasting consequences.  

All the evidence shows that parties find the process of resolving disputes in court perplexing, stressful, protracted, worrying, long and expensive. The rationale of early neutral evaluation is to remove some if not all of these disadvantages. The benefits to each party and any children in finding a fair and satisfactory solution are clear and settlements reached by agreement are very much more likely to be adhered to.

Early neutral evaluation will not suit every case and solutions will not always be found or accepted by the parties. It is, however, an additional resource which practitioners will find provides extra scope towards the settlement of disputes, with the resultant increase in satisfied clients

Paul Waterworth is a retired District Judge and a consultant with the Financial Resolution Consultancy

at Magdalen Chambers in Exeter where he is an associate.

The Homelessness Reduction Act 2017, initial thoughts

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Last week, the Department for Communities and Local Government reported an increase of 33,000 children being housed by councils in temporary accommodation since mid-2014, representing a rise of 37%.  This equates to an average of 900 extra children each month.  In the circumstances, it is easy to appreciate why the department has described the situation as ‘unsustainable’.

Without wishing to add further to the concern, it is difficult at this juncture not to reflect upon the 2017 Homelessness Monitor, which suggested that 50% of councils and, alarmingly, 95% of London boroughs reported that it was ‘very difficult’ to assist homelessness applicants to secure self-contained accommodation.  In this vein, 65% of boroughs cited a near-crippling shortage of available housing stock, although it is apparent that surging rental prices and the current state of the welfare benefits system have played their role, also.

In the circumstances, it seems like a good time to reflect upon the “impending” Homelessness Reduction Act 2017 (“HRA”).  The statute, which received assent in April 2017 and expects commencement at some (currently unspecified) point during 2018, started life as a private members’ bill catalysed out of campaigning by Crisis with support from Shelter.  As a Bill, its explanatory notes cited as a policy background that ‘[t]he number of homeless households in England is increasing.  57, 750 households were accepted as statutory homeless and in priority need in 2015/16, up 6% on a year earlier.  The total numbers in temporary accommodation are also rising.  Local housing authorities took action to prevent homelessness for 50,990 households in April to June 2016, up 4% from 48,820 in April to June 2015.’  The guidance further acknowledged the limitations presented by restricting duties owed to applicants assessed as being in ‘priority need’, with the inevitable corollary that ‘those who do not meet the threshold for ‘priority need’ often receive little support.’

Heralded by Shelter as ‘the first major piece of homelessness legislation for 15 years’, the main thrust of the Act will be to amend Part 7 of the Housing Act 1996, whilst also amending the Homelessness (Suitability of Accommodation) (England) Order 2012, by imposing duties on local housing authorities to ‘intervene earlier and take steps to prevent homelessness in their areas’, regardless of priority need or intentional homelessness.  The hope is that this will lead to a reduction in homelessness, whilst achieving financial savings for local authorities.

The statute’s starting point in this respect is to amend section 175 of the 1996 Act.  The amended s. 175(4) and (5) provide that a person will be threatened with homelessness if it is likely that (s)he will become homeless within 56 days, doubling the previous 28 day period and meaning that local authorities must work with people to prevent homelessness at an earlier stage.  Notably, the provision makes clear that the service of a section 21 notice, which expires within 56 days, will engage the duty.

The amended section 179 of the 1996 Act remodels local authorities’ “advisory services”, stipulating that each authority must provide or secure the provision of a freely available service, to advise upon preventing homelessness; securing accommodation when homeless; the rights of persons who are homeless or threatened with homelessness, and the duties of the authority; any help that is available from the authority or anyone else, for persons in the authority’s district who are homeless or may become homeless (whether or not they are threatened with homelessness); and how to access that help.  Subsection (2) et seq provides far more detail, which will add focus and scope to the advisory process.

As above, a core feature of the HRA is to improve the support that is available to applicants who have either made themselves intentionally homeless, or are not considered to be in priority need.  This is addressed by the newly imposed section 189A, which requires an authority to carry out an assessment and produce a personalised plan in respect of all applicants who are homeless or threatened with homelessness, and are eligible for assistance.

The new section 195 imposes a “prevention duty”, which will apply to all eligible applicants threatened with homelessness and will require that an authority ‘must take reasonable steps to help the applicant to secure that accommodation does not cease to be available for the applicant’s occupation’.  Notably, the duty is ‘to take reasonable steps… to secure’.

The duty will typically run for 56 days and may end in accordance with subsection (8): suitable accommodation has been provided and there is a reasonable prospect of continued occupation for a period of 6-12 months; 56 days have passed, regardless of the applicant’s circumstances (but subject to a section 21 notice being served); the applicant has become homeless (in which case, move on to the new section 189B duty); the applicant has refused an offer of suitable accommodation; the applicant has become homeless intentionally from accommodation that was made available pursuant to the exercise by the authority of its section 195(2) function; eligibility has otherwise ceased; or the applicant has withdrawn the application.  A failure to cooperate will also terminate the duty.

Section 189B applies to applicants who are already homeless and provides that an authority, having regard to its section 189A assessment, must ‘take reasonable steps to help the applicant to secure that suitable accommodation becomes available for the applicant’s occupation for at least… 6 months, or… such longer period not exceeding 12 months as may be prescribed.’  This will, therefore, push back the section 193 duty by 56 days.  As with section 195, there are circumstances in which the duty might be ended, as to which sections 189B(7) and (9) should be consulted (n.b. that such a decision would be susceptible to challenge by section 202).

Whilst statutory guidance is yet to be published, as is the code of practice that is referred to within the amended section 214A, it nevertheless seems that both sides of the housing law table anticipate positives arising out of the legislation.  Indeed, any sensible measures taken to reduce the number of people living without a home can only ever be a cause for celebration.  However, a considerable concern amongst local authorities faced with the prospect of implementation, aside from the obvious transitional and interpretative hurdles, will clearly pertain to funding.  It is axiomatic that for the aims of the statute to be realised to full effect, there must be sufficient funding in place.

For instance, the Local Government Association anticipates that the imposition of the prevention duty, alone, will increase the workloads of London boroughs by circa 270%.  The Association of Housing Advice Services has suggested that the financial burden to the boroughs will rest in the region of £160m.  Palpably, neither concern is likely to be dampened by the government’s promise of an additional £48m in funding (available only for the first two years following implementation), or the hope that savings might adequately offset costs before the two-year period expires.  Whilst the additional funding may well hep authorities to “hit the ground running”, they will surely be hoping that the short-term cash boost will be followed by an effective post-implementation review of funding, resources and stock, as promised by communities’ secretary Sajid Javid.

As for the costs that are likely to arise out of issues of construction and initial implementation, authorities might expect a surge in challenges to their interpretation of eligibility, “reasonable steps” and “help to secure”; and in cases of refusals to accept offers of accommodation and alleged non-cooperation.  Again, it is hoped that the anticipated explanatory notes and code of practice should help to iron out at least some of those potential areas for conflict.

Jonathan O’Neill

July 2017

Jonathan is a barrister who specialises in housing law, with particular expertise in disputes concerning possession, demotion, public law principles, human rights, equality, antisocial behaviour, injunctions, tenancy deposits, disrepair, breach of tenancy agreement and unlawful eviction.  He can be contacted via his clerk, on 01392 20 84 84.

This article has been prepared and published as a discussion document and is not to be relied upon as a source of legal advice.

 

 

Working: employed or gigging? 

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We lawyers have been arguing about the status of ‘employees’ since the dawn of the first codified employment legislation in this country and the advent of the industrial tribunals. Cases such as Ready-Mixed Concrete v Minister of Pensions & National Insurance [1968] QB 497 and Carmichael v National Power Plc [2000] IRLR 43 gave us the irreducible minimum of obligations without which no contract of employment can exist.’ Factors such as the mutuality of obligations between the company and the individual, the control exercised by the ‘employer’ over the individual on a day-to-day basis, the individual’s level of integration within the company, and the economic reality of the situation. This is so vitally important because not all those ‘employed’ are in fact ‘employees’ and therefore do not have access to the same rights, such as the national minimum wage, paid holiday, sick leave, etc.

The statutory definition is set out in section 230(1) Employment Rights Act 1996 (‘ERA’). This section states: an ‘employee’ is: ‘an individual who has entered into, or works under, a contract of employment’. Section 230(2) defines a contract of employment as a contract of service.  For comparison a self-employed person may refer to themselves as working under a Contract for Service.

The Court of Appeal held in Protectacoat Firthglow Ltd v Milkos Szilagyi [2009] EWCA Civ 98 and the Supreme Court affirmed in the case of Autoclenz Ltd v Belcher and Others [2011] UKSC 41, that despite any label given to a relationship by the parties, the Court should look behind that agreement and examine the actual nature of the working relationship.

That was all well and good but in more recent years we have seen an explosion in a new type of ‘employment’, with the advent of the zero hours contract and the ‘gig economy’. According to one definition, the ‘gig economy’ is: ‘a labour market characterised by the prevalence of short-term contracts or freelance work, as opposed to permanent jobs’. Taking opposing partisan viewpoints- it is either a working environment that offers flexibility with regard to employment hours, or a form of exploitation with very little workplace protection.

Recent caselaw includes Dewhurst v CitySprint UK Ltd ET 22025/2016, a first instance tribunal decision which held that Ms. Dewhurst was a worker not self-employed, and Aslam, Farrar & Others v Uber & Others ET 2202551/2015, another first instance decision which is awaiting the appeal hearing listed in the EAT in September 2017, where the tribunal determined that:

‘The notion that Uber is a mosaic of 30,000 small businesses linked by a common platform is to our minds faintly ridiculous… simple common sense argues to the contrary.’

The Court of Appeal handed down judgment in Pimlico Plumbers Ltd & Another v Smith [2017] IRLR 323 earlier this year stating that Mr. Smith was a worker qualifying for sick pay rather than a self employed contractor.

At the time of writing Deliveroo’s case is being assessed by the Central Arbitration Committee with regard to the national minimum wage and holiday pay.

Yesterday, the ‘Taylor Review of Modern Working Practices’ entitled ‘Good Work’ was published. It is an extensive document that includes proposals some of which will be able to be rolled out easily and quickly, others will require extensive drafting and Parliamentary process, but it is at least perhaps an indicator of the direction of travel. Some of the key proposals in my view are:

  • Keeping the distinction between employees and workers, but renaming workers who are not employees ‘dependant contractors’ page 35;
  • Amending the legislation cited above to include the case law principles;
  • Placing more emphasis on control within the definition of worker- page 36;
  • Amending the NMW to make it clear that gig-economy workers allocated work through an app are undertaking a form of output work and will not have to be paid the NMW for each hour logged on when there is no work available- page 38;
  • Extending the right to a written statement of terms and conditions to workers as well as employees- page 39;
  • Requiring written statements to be given on day one of employment;
  • Extending written statements to include a description of statutory rights;
  • Giving agency workers the right to request a direct contract with the end user after 12 months on an assignment- page 48;
  • Giving those on zero-hours contracts the right to request guaranteed hours after 12 months;
  • Giving HMRC enforcement powers for sick and holiday pay- page 59;
  • Allowing Claimants to bring a claim to the tribunal (without an issue fee) to determine employment status as a preliminary issue prior to any substantive claim- page 62;
  • Placing the burden on the employer in the tribunal to prove that the Claimant is not an employee or worker- it is currently the other way round.

We will have to see how much of this becomes law and what the appellate courts make of the cases before them in the mean time, but it seems that there is still no clear definition of ‘an employee’ thanks to both social and technological advances.

Any one wishing to find out more about their potential employment rights, should contact Sarah Hornblower in Chambers.

Rupert Chapman

Conduct in Needs-Based Financial Remedy Cases

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The issue of conduct is one often raised by litigants in financial remedy cases. The court’s treatment of it, however, is often not what the parties would wish it to be, often because the court considers the parties’ needs to be the guiding principle for consideration – one that is thought to ‘trump’ all other issues. In the recent case of R v B and Capita Trustees [2017] EWFC 33 Moor J took issue with this approach.

The case involved a 15-year relationship where all the assets (around £3.5 million) were in the wife’s name. The wife was an artist and had an interest in various dynastic trusts, on which the court did not place a value. The parties had separated in 2005 and the wife petitioned for divorce in 2010. The wife’s assets largely derived from a share in a family business set up by her father in the 1950s. The husband, however, had become involved in the running of the business during the relationship and had spearheaded a restructuring that involved the creation of various trusts in Jersey, one of which was for the sole use of the wide and the children and was a post-nuptial settlement within the terms of the Act. He continued in this role after separation.

That role came to an end when the CEO of the company discovered that H had incurred liabilities of £22 million in the business. There was a further dispute over the funding of the purchase of a property in France, intended as a hotel development, and over monies provided by the wife to her new partner. The litigation was extensive, drawing in the parties’ adult children and including a lengthy trial on the preliminary issue of the ownership of various assets.

It was agreed by all parties that this was a needs case given the source of the assets, but each party made allegations against the other; the husband alleged a wanton dissipation of assets to her partner, while the wife alleged that the husband had incurred huge liabilities either by fraudulent or incompetent mismanagement of the business, as well as litigation misconduct.

Moor J, in a lengthy judgment handed down after hearing the parties’ evidence, considered the role of conduct in general, and particularly in needs cases. He held that;

  • As had been established in previous cases, including Miller/McFarlane [2006] UKHL 24, conduct would be relevant in only a few cases, and only where it was both obvious and gross.
  • The burden of proof is on the party seeking to allege conduct, and the standard of proof is the usual civil standard. The seriousness of the allegation makes no difference to the standard of proof, and the inherent probabilities are merely something to be taken into account.
  • The wanton dissipation of assets by one party, however, would not be ignored. Applying Martin v Martin [ [1976] Fam 335 ‘A spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.’ The Judge held that ‘if a spouse has created unnecessary debt or incurred unnecessary liabilities, this detracts from his or her contributions as well as meaning that the assets have been reduced. Moreover, provision needs to be made for liabilities that have not yet been discharged’ (citing Charman v Charman [2006] EWHC 1879).
  • Conduct was not only an issue for sharing cases, but was relevant to needs cases as well. For example, the conduct might be such as to prevent the court from satisfying the needs of both parties. In such a case, the court ‘must be entitled to prioritise the party who has not been guilty of such conduct’ (para 85).
  • In doing so, the court might reduce the award to the offending party from the standard provision of meeting their reasonable requirements generously assessed to ‘something less’. While the issue should not reduce a party to a position of real need (unless there is no alternative), it could be relevant to the level of need to be met. By implication, needs would be assessed in a more parsimonious way where that party is guilty of conduct which could not be ignored.
  • Where a party adopts a litigation strategy ‘so extreme that it would be inequitable to disregard it’ the way he had conducted proceedings could be reflected in the award made to him even in a needs case (applying M v M (Financial Provision: Party Incurring Excessive Costs) [1995] 3 FCR 321). In most cases this should be reflected in a costs order, but in an exceptional case the award itself could be effected.

The Judge found that the husband was a liar in several respects. While he had made contributions to the marriage that were significant, including through his work in the business, he had engaged in deliberate and fraudulent deception in hiding two loans of more than £7 million from the wife and her family, through his general management of the business and of his own finances. He had failed ever to declare any income tax to HMRC, but rather he had used the family business to fund his lifestyle, taking whatever he needed from wherever he could get it ‘regardless of the ownership structure’. His conduct was clearly so severe that it would be inequitable to disregard it. The wife, on the other hand, had been reckless in her dissipation of assets to her partner, which was not conduct, but rather a significant liability set off against her significant contributions through family money. The result was a potential liability to the business and trusts of between £9 million and £12 million, largely in tax liabilities incurred because of the parties’ (mostly the husband’s) cavalier treatment of the assets.

The husband was given a capitalised maintenance fund of £839,000, based on half the income that the wife would receive each year from the family business (she received around £100,000 net pa). There was to be no pension provision even though the husband had no state pension, having never had a national insurance number or paid any tax – the wife should not fund his misconduct. He would receive £411,000 to pay some of his personal debts of £1.35 million (excluding £950,000 in costs), and no other capital for his housing needs – the judge considering that because of his conduct there was insufficient to meet both parties’ reasonable needs. The wife retained the balance and all of her interests in the various trusts.

The judge considered the costs to be completely out of control and the litigation to be ‘financial suicide’. The preliminary issue hearing itself had ‘achieved nothing apart from the waste of over £2 million in costs’, caused entirely because of the husband’s irresponsible conduct of the family finances. The husband’s overall legal costs were £3 million.

The lesson of this case is principally that where a party is guilty of gross and obvious conduct, particularly where it substantially reduces the available assets they can expect either to have their reasonable needs assessed at the lowest end of the spectrum, or to have them unmet where the other party’s needs can only be met in this way. In exceptional cases, this will extend to litigation conduct as well as more general financial conduct.

Rupert Chapman

Financial Remedies update: Short Marriage cases – a departure from the principle of equal sharing

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In White v White [2001] 1 AC 596 the House of Lords established what has become a principle that the matrimonial assets of a divorcing couple should normally be shared between them on an equal basis. The Court of Appeal delivered judgement this week in the case of Sharp v Sharp [2017] EWCA Civ 408 in which they determined that this is not inevitably the case where the marriage has been short, there are no children, the couple have both worked and maintained separate finances, and where one of them has been paid very substantial bonuses during their time together. This is the first time since the joint appeal of Miller & Mcfarlane in 2006 that the Court has directly considered this issue.

In Sharp v Sharp each party came to the marriage from a relatively modest financial background. Each of them worked hard to achieve the qualifications and experience which each of them brought to their relationship at the start of the six years for which their cohabitation and marriage lasted. The wife worked continuously as a fuel trader whilst the husband work until 2012 in IT. Both had basic salaries or around £100,000 p/a however the significant difference between them was that wife received a discretionary annual bonus which in the central five years of their relationship totalled £10.5 million. Any bonuses the husband’s employment brought were comparatively trivial. At the time of the hearing the total assets held by either party amounted to £6.9 million. The figure for “matrimonial assets” was £5.45 million.

At first instance, the parties adopted polarised positions, the wife offering a lump sum and a transfer to the husband of one of their two properties, together with a contribution towards his legal fees (representing a total value of £1.23 million). In contrast, the husband sought a total package of £3 million.

After reviewing the relevant authorities, the trial judge concluded that no sufficient reason had been identified to depart from equality of division. The fact that this was in effect a husband’s claim against a wife rather than the more conventional claim of wife against husband empathetically did not call for a discount. The principled outcome was half of the matrimonial assets, a final total payment to the husband of £2.725 million.

Noting that this appeal focuses on a fringe of cases that may lie outside the equal sharing principle, and in a lengthy judgement where he considers in detail the principles as set out in White, Miller and Charman. McFarland LJ, finds that the wife’s bonuses were not “family assets”, and observes that the court is obliged to take account of the duration of the marriage with a view to considering reducing the husband’s share to reflect the period of his domestic contribution. McFarlane LJ sets out that in a case where, in contrast to the more traditional ‘bread-winner’ / ‘home-maker’ model, each partner worked full time for most of the marriage, and where there are no children, it must be necessary for the court also to evaluate the extent, if any, by which the husband’s domestic contribution exceeded that of the wife. He concludes on the facts of this case, the combination of potentially relevant factors (short marriage, no children, dual incomes and separate finances) was sufficient to justify a departure from the equal sharing principle in order to achieve overall fairness between these parties.

The husband was subsequently awarded a total sum of £2 million (a property transfer valued at £1.1 million plus a lump sum of £900,000). He was awarded half of the capital value of their two properties and an additional sum to reflect a combination of: (a) the standard of living enjoyed during the marriage; (b) the need for a modest capital fund in order to live in the property that he is to retain; and (c) some share in the assets held by the wife.

William Hillier
Magdalen Chambers