Archives for January 2013

Will Aid 2012 – Solicitors Draft Wills for Charity

W&P Dept Photo

During November 2012 Annemarie Swainson, head of Harris & Harris Solicitors Wills and Probate Department and Joshua Eva, an Associate in that department, raised an estimated total of £1,345 by participating in Will Aid, the UK’s leading charity will-writing scheme.

Will Aid offers an opportunity to make or update a Will in return for a donation to help people in need in the UK and all over the world and supports nine well-known UK charities: ActionAid, Age UK, British Red Cross, Christian Aid, NSPCC, Save the Children, Sightsavers, SCIAF (Scotland) and Trocaire (Northern Ireland).

As part of the Will Aid campaign Harris & Harris drew up basic Wills for local people without charging their usual fee. In return for this service the clients made a donation to Will Aid. This year saw a very busy and successful campaign during which 15 Wills were made for local people, giving their families the security of a properly drafted Will as well as the opportunity to support popular charities.

Joshua Eva said, ‘We are delighted to have made another significant contribution to Will Aid, and equally delighted at the continued public interest. We would like to thank all of our clients who took part for their generous donations.’

 The money raised by Harris & Harris will be added to the nation-wide total, currently standing at £1.5m, which will be put to work to make a real and lasting difference to vulnerable children, families and older people in the UK and around the world.

Eweida – Did the European Court get it right ?

There has been a lot of publicity about the European Court of Human Rights decision in Eweida & Others v UK. The principles are quite simple; the key to understanding the decisions is the distinction between the right to hold religious faith and the right to display that faith.

Article 9 of the European Convention on Human Rights provides that there is an absolute right to freedom of thought, conscience and religion. However the right to manifest one’s religion or beliefs is qualified. This right is subject to ‘only such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others’. States have a ‘margin of appreciation’ for the way in which qualified rights are interpreted and the ECHR will not interfere with a decision that falls within that margin.

Two of the Applicants had sought to wear visible crosses, in breach of their employers’ uniform policies. That was a qualified right. The Court accepts that a manifestation of religious belief for the purposes of Article 9 need not be “mandated” by the religion but only needed to be “intimately linked”.

Ms Eweida worked for British Airways and wanted to wear a discreet cross visibly, having worn one under her clothing for some time. The Court held that British Airways’ desire to project a consistent brand image wasn’t sufficient, as there was no evidence that the wearing turbans and hijabs by other employees had any negative impact. In fact British Airways had recognised that in 2007 and changed their policy to allow it.

Ms Chaplin worked as a geriatric nurse. In her case the Court held that although her being permitted to manifest her religion must weigh heavily in the balance, the reasons put forward by her employers for asking her to remove the cross outweighed them. These were the protection of health and safety on a hospital ward.

The other two applicants wanted the ECHR to rule that their manifestation of their religious beliefs required their employers change their job descriptions where their beliefs conflicted with some of the duties they were normally required to perform. Ms Ladele was a registrar, whose employer required her to perform civil partnership ceremonies. They attempted to accommodate her but rota changes had created problems. Mr McFarlane had taken a job providing counselling services for Relate, but was unwilling to provide counselling for same sex couples.

Both of their applications failed. The ECHR noted that their employers’ justification for refusing their requests was the provision of non-discriminatory services, so departures from those required serious reasons by way of justification. In Mr McFarlane’s case they also took into account that he had been aware of the requirement about which he was objecting before he took the job but rejected the argument that accepting the job absolved his employers of any responsibility to consider reasonable accommodations.

The ECHR has left the decision to employers. If an employer is reasonable and can explain why a particular policy is necessary it is likely to be upheld. Employers know they should try to accommodate religious beliefs in the workplace and the four cases provide examples of the issues they are likely to face.

Many commentators think that the ECHR has reached the only decision it could. To have done less would have laid it open to complaints of failing to uphold rights granted by law. To be more prescriptive would have opened the door to many more applications, and to complaints that it was interfering in decisions at a level that should be left to domestic courts.

The principle was set out by South African judge Albie Sachs:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding.”

Residential Tenancy Deposits – Avoid Expensive Mistakes

Landlords of residential tenants could be forgiven for being confused about what they have to do to meet the requirements of the Tenancy Deposit Scheme.   When the original statutory scheme was introduced it was then undermined by cases which allowed landlords to virtually ignore it.   Some landlords and agents have got into the habit of ignoring the 30 day limit in the belief that they could put things right later.   That isn’t what Parliament intended, and the courts will not allow it in the future.

Landlords of residential tenants must now do all of the following within 30 days of the start of the tenancy:-

  • Protect the deposit, usually by putting it into one of the tenancy deposit schemes.
  • Serve a notice containing prescribed information, which includes the details of the scheme, how it can be contacted, and what the landlord may deduct from the deposit, plus, usually, the leaflet provided by the scheme.

There are serious penalties for landlords who do not comply.   If the landlord does not serve the notice on time, the court can order the landlord to pay the tenant a penalty of up to three times of the amount of the deposit.   The Court of Appeal has recently ordered a landlord to do that, and that case will be binding on the lower courts.  Landlords who miss that deadline must assume that the starting point will be that they will pay three times the deposit as a penalty.

If the Landlord has not protected the deposit in time the consequences are potentially more expensive.   Any s.21 Notice Requiring Possession is ineffective, as are any possession proceedings based on it.   That cannot be put right later unless and until the Landlord has paid the deposit back to the tenant and then served another Notice.   As a s.21 Notice normally has to give at least two months notice, that can seriously delay the ability of a landlord to get rid of a bad tenant.   Bad tenants are why landlords take deposits. If a Landlord starts possession proceedings based on a defective notice, they will not get possession, be ordered to pay a penalty and the tenant’s legal costs, and will have to start all over again – without the benefit of a deposit.

If you are considering letting residential property please contact Kathryn Lander.

If you have a problem with a residential tenancy please contact Neil Howlett or Andy Hambleton.