Clarke and Son News

In a recent case from Croatia, the European Court of Human Rights (ECtHR) ruled that the applicant’s Article 8 rights under the European Convention on Human Rights had been breached by the failure of administrative authorities to prevent excessive noise from a bar located in the same house.

The applicant lived in a house where several of the other floors were used by a bar open from 7am to midnight every day. She had repeatedly complained to the Sanitary Inspectorate about the excessive noise and several independent measurements had confirmed that the noise experienced by the applicant was excessive.

The applicant alleged that her Article 8 rights had been violated and that the authorities had breached her right to respect for her home. The ECtHR held that, although there was not an explicit right under the Convention to a quiet environment, authorities may still be required to adopt measures to protect a person’s private life even where the issue in question is between individuals.

The ECtHR likened the case to a Spanish case which concerned excessive noise from a nightcub. As in that case, here, the applicant had been subjected to excessive noise fro a prolonged period of time and the Croatian administrative authorities should have taken measures to protect her. Therefore, the applicant’s Article 8 rights had been breached and Croatia had failed to discharge its obligation to protect them.

Comment: this case confirms that local authorities do have a positive obligation to protect an individual’s Article 8 rights, especially in cases of prolonged noise nuisance. The ECtHR was also critical of the time it had taken for the applicant’s claim to be resolved as this had meant that she had been denied and effective remedy and been subjected to the excessive noise from the bar for nearly eight years.

For more information on Residential Landlord & Tennant issues, please contact Paul Cowdery on Tel: 01256 320 555.

The government’s proposals for personal care will go ahead - if the new government implements it.  That was the message from Tuesday’s enabling legislation which was passed on Tuesday evening.

The government accepted a House of Lords amendment in order to get the enabling legislation through before the general election which means that the introduction of free personal care at home for elderly and disabled people with the greatest needs is to be delayed by six months.  The effect of this, as Lord Warner, a former Labour Health Minister who helped push for the amendment, said:

“We feel we have done our job. We have slowed the bill down and it will be for a new government to deal with it in a more measured way.”

The bill is now expected to receive royal assent before parliament is dissolved for the election.

If implemented, the bill will guarantee free personal care at home for 280,000 people with the highest level of needs and will also provide ‘re-ablement’ services for 130,000 people so they can remain independent.

Under the white paper plan, stage two of the process of creating a national care service would be free personal care in residential homes for all people after two years.  Stage three ‘after 2015′, would be free care for all after introduction of a compulsory comprehensive insurance scheme.

For more information on these issues, please contact Nia Wharry on Tel: 01256 320 555.

Bhupendra Sankhla, Partner and Head of the Family Department at Clarke & Son LLP is now able to offer clients a Collaborative Law Service.  This is an alternative to court for divorcing couples, involving four-way meetings with both parties and accompanying solicitors.

 The aim is for all parties to set the agenda and to reach an amicable conclusion within their own timetable.  It helps to reduce the amount of cost to the client as there is less correspondence between solcitors.  Also, the solicitors sign an agreement to say they cannot represent the client in court, giving the client an incentive to work with this process.

It is an alternative to mediation which involves an independent person known as a ‘mediator’ who assists the parties reaching an agreement.  However, the mediator is not a legal representative and therefore each party is advised to take additional legal advice.

 Bhupendra says of the new service:

“I am delighted to be able to offer clients this alternative to court proceedings, which can be costly and stressful for all concerned.  It is vital that all parties are happy with arrangements, especially when children are involved and this process will hopefully help to achieve this.”

For more information on Collaborative Law, please email Bhupendra Sankhla, who is an accredited specialist member of Resolution (formerly known as The Solicitors Family Law Association) or tel: 01256 320 555.

Reports in the leading legal publication ‘The Lawyer’ have indicated a significant increase in the number of women seeking advice on divorce proceedings. Reports suggest that a growing number of women are seeking to secure assets as the economic boom turns to gloom.

Meanwhile, men are seeking advice on how they are going to prevent their former wives from accessing their dwindling wealth.

More men are also asking about variations - where court orders were made years ago and the husband has to pay an annual sum to the wife but can no longer afford to.

Bhupendra Sankhla, Partner, Clarke & Son says, “In the present economic climate, I’m finding more already-divorced couples coming back to us demanding a change to their original court orders, for the men because their earnings are not keeping up with the rising cost of maintenance fees and for the women, (or the main carers of the children), because of the increased price of food and fuel.”

If you need further information, help or advice regarding Divorce, Mediation and Reconciliation, Pre-nuptial Agreements  or Informal Separation, contact Bhupendra Sankhla Partner, Family Department.

Alternatively, call Clarke & Son on 01256  320 555.

Clarke & Son LLP is participating in a campaign with Cancer Research UK to offer people over 55 the opportunity to get a FREE Will and leave a legacy to charity.

The Cancer Research ‘UK Free Will Services’ has been set up to provide easy public access to independent legal advice for will writing while also making it easier for those already thinking about leaving a legacy to charity in general or to Cancer Research UK specifically, to do so.

Roy Young, Clarke & Son says, “The Cancer Research UK scheme is an ideal opportunity for those over 55 who haven’t yet made a Will - and really should think about doing so – to benefit from both a free Will and also to give something back to charity if they so wish. At Clarke & Son, we are delighted to be able to support this excellent scheme as it enables us to give our expertise in aid of the charity.”

Potential clients who wish to make a Will should contact Roy Young as soon as possible as this is a time limited offer. The firm has been allocated a limited number of coupons from the charity on a first come, first served basis. Once they run out, the offer may no longer be available, so if you’re interested, please respond quickly.

For further information, either e-mail Roy Young direct or telephone Clarke & Son on 01256 320 555.

So the Christmas tree’s been chipped for compost, the discarded wrapping paper taken to the recycling bin and the family dispatched to their own homes… but what to do now with the mountain of presents unused or unwanted in the corner gathering dust?

Says Nicholas Bowers, Partner Clarke & Son LLP

Watchdog fans out there will know that consumers have the right to expect anything they buy to be of satisfactory quality, to be fit for purpose and to be as they were described. Remember that just because an item is on sale it does not mean it automatically affects your statutory rights. If, however, during the January sales frenzy you are told by the shop assistant that the item is reduced because of a fault or if the fault was obvious before you bought it then you are not entitled to anything. Likewise if you caused the damage by yanking the item out of someone else’s hand, if you made a mistake and realise you don’t suit shocking pink camouflage shirts or you have changed your mind. Many retailers operate goodwill policies but you cannot expect them to do so as it is at their discretion.

Normally, if you have the proof of purchase you can return the present to the trader and the options available to you include a full refund, compensation, repair or replacement of the item depending on what is reasonable and proportionate. If you are still not satisfied then write to the seller calmly explaining the problem and how you wish to resolve it. Be realistic in your expectations and if you are prepared to accept alternatives let them know. Going to court should be a last resort especially if you consider the cost of the original item.

You should contact the local Trading Standards office, however, if the goods sold are unsafe, they are given a false description, a misleading price or the shop has a “no refunds” sign or if you have been injured by the goods. Do be careful if buying products from temporary retail outlets open just during the Christmas season as you may not be able to trace them to return goods or enforce any other rights.

With Guy Fawkes day only a couple of weeks away, Nick Bowers of Clarke & Son LLP offers advice on how to make sure you have a good time whilst minimising the risks involved and possible claims for damages.

You might be forgiven for thinking that the biggest risks on November 5th were from fireworks and bonfires. However, they aren’t the only risks, according to insurance statistics. The number of fires increases by 50% according to an analysis of claims.

Comments Nick Bowers, “November 5 is the second worst day for fire-related claims - only Christmas Day has more. However, the biggest risk is injury caused by a firework. In 2005, there were 990 firework injuries in the UK, of which 285 were eye injuries. 86 of these injuries occurred during the Halloween period between 31 October and 6 November. If your careless or reckless use of a firework causes injury to another person, you may find yourself facing a claim for compensation.

“It is safer to enjoy Guy Fawkes’ night at an organised event,” continued Nick Bowers “Local authorities encourage people to attend community displays, and for these there are codes of practice. Your local council’s Trading Standards office is the place to call if you are concerned about what seems to be an unauthorised bonfire in the making. Trading Standards officers also enforce the rules for storing and selling fireworks. Even so, plenty seem to end up in the wrong hands, and in some cases if you feel in danger, call the police.” Vigilance from the public is also helpful for councils, who tend to adopt a zero zero-tolerance approach to fly-tipping in the run up to Bonfire Night. Dumped rubbish can become a magnet to arsonists who find it amusing to set it alight, putting nearby buildings and residents at risk.

For organisers of community events on bonfire night, the advice is:

• plan ahead;
• choose a safe location;
• take out appropriate insurance (the insurance supplied by a standard household insurance policy may not cover this type of risk);
• have named “responsible persons”;
• inform all the necessary authorities;
• provide a PA system, signage and separation distances for good crowd control;
• follow the instructions on the firework with great care;
• make sure any bonfire you build is sited and lit safely; and
• tidy up responsibly afterwards and ensure the bonfire is extinguished.

The government has sound advice about fireworks and bonfires on the Department of Trade and Industry website, with excellent information for retailers and display organisers: www.dti.gov.uk.

Visit www.cgsystems.co.uk/ncfs for the National Campaign for Firework Safety webiste.

Firework accident statistics can be seen at: www.dti.gov.uk/files/file30136.pdf - the figures are for 2005, which is the most recent full year for which figures are available. However, there are statistics for the Halloween period of 2006 (see archive.nics.gov.uk/hss/070118e-hss.htm), in which 69 persons were injured.

6/4/06: The Bank of England has kept UK interest rates on hold at 4.5% for the eighth month in a row.

In its latest quarterly forecast, the Bank of England predicted that economic growth would recover in the UK, while inflation would remain around the 2% target.

Meanwhile, house price inflation has continued to rise in March, according to the latest survey from the Halifax bank.

It says prices rose by 0.9% during the month, pushing up the annual rate of house price inflation to 6.2%. But the bank added that there were signs that housing market demand was "beginning to level off" due to rising utility and council tax bills.

If you are thinking of buying or selling a home, why not contact either Peter Brown, Paul Cowdery or Jenny Axe - who can advise you on our conveyancing services to help the sale run smoothly.

Income Tax Rates
The personal income tax threshold rises in line with inflation from £4,745 to £5,035, with higher-rate tax coming in at a taxable income of £33,300 – up from £32,400 in 2005/06.

Capital Gains Tax (CGT)
There were no changes to CGT rates. Investors (including trustees) who ‘bed and breakfast’ shares to use their annual allowance for CGT or to create a tax loss will find that such transactions are ineffective with immediate effect. With the FTSE index having risen substantially this year, the Chancellor is effectively increasing his future CGT yield.

Motoring
Vehicle Excise Duty (the tax disk) is being reduced for the two lowest bands of vehicles (by up to £35) and increased by £25 for the highest band, with the two middle bands unchanged. The bands are based on how much pollution a vehicle creates. The very ‘greenest’ vehicles will be exempt from tax altogether. Set against this, the increase in fuel duty (postponed from September because of the spiralling cost of fuel) is being reintroduced, adding 1.5p per litre to petrol, but again deferred until September. The benefit in kind charge for the lowest band car is also being reduced by the introduction, from 2008/09, of a new 10 per cent rate for company cars with CO? emissions of 120g/km or less.

Venture Capital Trusts (VCTs)
Although the amount which can be contributed to a VCT is doubled to £400,000 from 6 April, the tax relief is to be limited to 30 per cent. The time such shares have to be held to be CGT free is lengthened to 5 years (from 3) and the size of the ‘gross asset value’ for a company which can obtain VCT status is reduced from £8m to £7m. These changes apply to VCT shares issued after 5 April 2006.

Anti-Avoidance
As well as new measures to prevent avoidance of tax and national insurance through the use of financial instruments such as share options, the Chancellor has hit hard at the abuse of charitable donations, by restricting the benefits which charities can provide to companies which donate to them, restricting charitable tax relief where the charity uses donations for non-charitable purposes and preventing abuses whereby a donation is made and then withdrawn when tax relief has been obtained.

Pensions
Measures designed to prevent abuses which allow the use of pensions to pass on assets free of IHT are being introduced.

Trusts – Chancellor Declares War
The Chancellor has declared war on the use of tax advantaged Accumulation and Maintenance (A&M) and Interest in Possession (IIP) trusts by making them subject, with immediate effect, to an ‘entry’ tax charge of 20 per cent on lifetime transfers that exceed the Inheritance Tax threshold. By deeming them to be ‘relevant property’ trusts, the 6 per cent ‘periodic’ charge and the ‘exit’ charge when trust assets vest will also apply, except where specific conditions are met. The main exceptions will be trusts arising on death where the beneficiary receives the assets at age eighteen or trusts which are created for the benefit of a disabled person.  Existing A&M and IIP trusts which provide that the assets in trust will go to a beneficiary absolutely at 18 – or where the terms on which they are held are modified before 6 April 2008 to provide this – will continue to have the current exemptions. Where they do not, the trust assets will become relevant property from 6 April 2008 and the periodic and exit charges will apply.

Property Taxes

The threshold for Stamp Duty Land Tax (SDLT) has been increased from £120,000 to £125,000 for residential properties. The threshold for the higher rate of duty has been frozen at £250,000, a move which will be unpopular with all residential property owners.  Click here to access this useful tool which will help you to callculate your SDLT quickly

Inheritance Tax (IHT)
Recent polls indicating that a large majority of the public think that IHT is inherently unfair may account for the decision to raise the IHT threshold to £285,000 immediately, with further increases to £300,000 in 2007/08, £312,000 in 2008/09 and £325,000 in 2009/10.

The budget summarised in 50 words

With his sights fixed firmly on number 10 Downing Street, not number 11, Chancellor Gordon Brown’s budget features a number of measures designed to create popular support, whilst preserving his reputation as a ‘no-risk’ Chancellor by keeping most changes at the levels required by inflation only.

The budget features a large number of anti-avoidance provisions, which include the extension of the powers of HM Revenue and Customs (HMRC) to exchange information with foreign tax authorities regarding indirect as well as direct taxes and a general extension of the types of tax avoidance measures that must be notified to HMRC. However, hidden in the depths of the HMRC budget notes are a couple of bombshells.

If you have any queries relating to how aspects might effect you or your business then contact Clarke & Sons on 01256 320555 or email mail@clarkeandson.co.uk and we will be happy to offer you advice.