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Do I still need an EPC during the Covid-19 pandemic?

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The Energy Performance of Buildings (England and Wales) Regulations 2012, known as the EPB Regulations, make it a legal requirement to have a valid Energy Performance Certificate (EPC) when a property is constructed, rented out or sold.

With the current ‘lockdown’ and social distancing rules in place, it may be wondered whether this legal requirement remains in force and how it can be complied with under current circumstances when you intend to sell or grant a lease of your property.

Guidance issued by the government confirms that the legal requirement to obtain a valid EPC before selling or letting a property remains in place, for both domestic and commercial premises. The position has not been relaxed due to the current Covid-19 pandemic.

Where a property remains vacant, it should be fairly straightforward to arrange for an EPC assessment to be carried out that complies with the social distancing guidelines.

However, where a domestic or commercial property is occupied, either by the owner or tenants, more consideration is required to ensure an EPC assessment is carried out in accordance with the social distancing guidelines and in a manner that is safe to all parties involved.

Government advice is that that any energy assessments should be conducted in accordance with the following:

  • Government advice on staying alert and staying safe during this period
  • Government advice on working safely during Covid-19
  • Government advice on moving home during the Covid-19 outbreak

This may involve measures such as the occupiers of the property temporarily vacating the property whilst the assessment is carried out, ensuring the person carrying out the energy assessment wears a facemask and appropriate PPE, and wiping down any surfaces the energy assessors has been in contact with. 

Suggestions include:

  • Assessors communicating with households prior to any visits to discuss how the work will be carried out to minimise risk for all parties.
  • No assessments should be carried out whilst an individual within the property is isolating with symptoms. Unless it is to remedy a direct risk to safety.
  • Prior arrangements should be made to avoid any face-to-face contact where possible.
  • In properties occupied by a tenant, landlords should consult with the tenants to ensure there is no one at the property showing symptoms, self-isolating, considered clinically extremely vulnerable or shielding.

Domestic Abuse During Lockdown

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Unfortunately with many spouses, partners and children being in the same households for considerable periods of time tensions often run high and domestic abuse can occur.  

Spouses/Partners in Domestic Violence situations should ensure to maintain daily contact with family and friends via social media or telephone. They should also consider devising a code if they are unable to talk.  The code for example could be for a family member or friend to contact the local police or the spouse/partner’s solicitor. 

On the 26th March, 2020 THE HEALTH AND PROTECTION (CORONAVIRUS RESTRICTIONS) ENGLAND REGULATIONS 2020)  came into force.  These regulations specify situations which amount to a reasonable excuse to leave home.  The most relevant in so far as domestic violence is concerned are as follows:-

Regulation h)  To fulfil a  legal obligation, including attending Court or satisfying bail conditions or to participate in legal proceedings.

Regulation i)     To access critical public services, including services provided to victims

Regulation m)    To avoid injury or illness or to escape a risk of harm

HOW YOUR SOLICITOR CAN HELP YOU IN LOCKDOWN

If the circumstances you are living in are dire and you fear for your safety and the safety of the children as well as contacting the police you can contact a Solicitor, Lynette Ann A’Court of Aston Bond will be able to assist you to make an application to Court under PART IV OF THE FAMILY LAW ACT 1996  to apply for:

  1.  A Non –Molestation Order to prevent your spouse/partner  from using violence against your children or yourself.  There are also a number of other orders which can be obtained, including preventing your spouse/partner from threatening harassing or pestering you.
  2.  In extreme cases an Occupation Order can be made ordering your spouse/partner from the Family home.
  3. In the event that your spouse/partner breaches Orders made by the Court he can be committed to prison for contempt of Court.

The courts are still available to hear urgent applications in respect of non- molestation orders and occupation orders.

The Court staff, judiciary, barristers and solicitors are key worker and are there to assist members of the public.

Usually the hearings are dealt with remotely by telephone. Such cases are classified as High risk and are dealt with as a matter of urgency.

If you are suffering abuse please do not hesitate to contact our senior family solicitor lynette Ann A’Court on 07754662438 to discuss your concerns and she will then advise the best way to try to resolve the position for you and put you in a much better place.

Family Courts During Lockdown

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Urgent Family Matters

The Court Services are listing matters in accordance with how urgent the case.

Cases which are considered to be urgent and take priority are:-

  1. Child abduction 
  2. If you consider that a child is at risk of harm
  3. If you have been harmed or are at immediate risk of harm

In the above circumstances, urgent applications may be made to the Court and the listing of these matters will be heard prior to the ordinary court family business.

Application for Child Arrangements Orders

These are applications where the parties have a dispute over the Arrangements for the Children.   The hearings have been categorised by the Courts as the ‘will be done category’.  These will be allocated to a District Judge or Magistrates for hearing as soon as possible but will not be classified as urgent.   However, if there are problems over the Children’s Arrangements parents should not be put off instructing their solicitor to issue proceedings, as these cases will be heard by the Court but the procedure will take a little longer than normal.

Divorce and Financial Remedy Proceedings

The issuing of Divorce Petitions again fall into the ‘will be done category’.   This means they will be done as soon as possible after the urgent Court business has been dealt with.     It does not mean that you should delay instructing your solicitor to issue your Divorce Petition when you are distressed as a result of the breakdown of your marriage.   The matter will still be dealt with by the Court but will not be prioritised.   However, at least having issued the proceedings you will be aware that the matter is progressing.

Financial Remedy Applications

Such Applications again fall into the ‘will be done category’.     It is often useful to have voluntary disclosure by way of the Form used by the Court, namely Form E, to provide full financial disclosure to the parties solicitors to see if agreement can be reached prior to issuing an Application for a Financial Order.     In the event that agreement is reached the matter may be resolved by way of a Consent Order made by the Court which incorporates the terms of the agreement which has been reached by the parties.    Also in some cases parties attend mediation to reach an agreed settlement but it is very important that if the mediation route is taken both parties must be willing to mediate.   If parties are living under the same roof in a very unhappy atmosphere the current pandemic should not hold parties back from issuing proceedings even though such proceedings will take a little longer than usual.

Remote Hearings

Except when there are exceptional circumstances all Court Hearings are heard remotely.   This can be via video link, skype or telephone.    The Court will usually make an Order that the case will be heard remotely. The writer has dealt with a number of telephone remote hearings which seems to be preferred method used by most of the Family Court’s at present.      The Court usually facilitate the Remote Hearing but in certain circumstances, the parties solicitor’s have to arrange the hearing.    It is necessary for the parties and their solicitors or counsel to provide their telephone contact details to the Court.       A fixed time will be given by the Court for the Remote Hearing and the parties will be called and will be invited to join the hearing.   The Judge will then introduce his or herself or in the event that the case is heard by Magistrates, the Magistrates’ clerk will introduce his or herself and also the Magistrates.  The case will then proceed as it would have done in Court but over the telephone.   The writer has found that these hearings work well and some parties prefer it as they are not intimidated by being in the formal Court Building and are sitting in the comfort of their own home.   However parties will be warned that no other person may listen to the proceedings neither is anyone permitted to record the proceedings.   In accordance with the Court’s normal practice the proceedings will be recorded by the Court.      

Can Aston Bond help with your worries and concerns about any of the above matters?

If you have any concerns relating to children’s disputes please do not hesitate to contact Lynette-Ann A’Court – Senior Family Solicitor at Aston Bond for your free initial interview

Mobile: – 07754662438 Email – lacourt@astonbond.co.uk

Relief from forfeiture due to non-payment of rent during the Covid-19 pandemic

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Commercial leases typically contain a clause enabling the Landlord the possibility of exercising a right of re-entry or to forfeit the lease in the event of non-payment of rent. During the current Covid-19 pandemic an increasing number of commercial tenants are finding themselves struggling to pay the rents due under their lease, especially since most leases provide for payment of 3 months’ rent in advance of each quarter day. 

On 26 March 2020, the Coronavirus Act 2020 (CVA 2020) came into effect introducing measures to help deal with the Covid-19 pandemic. Amongst these measures was protection against forfeiture for business tenancies in England and Wales (Section 82 CVA 2020).

Section 82 CVA 2020 prohibits a Landlord from exercising their right of re-entry or forfeiture under a business tenancy due to non-payment of rent during the ‘relevant period’. The ‘relevant period’ is defined as being until 30 June 2020, although there is the possibility that this may be extended if the government deems it necessary.

The definition of ‘rent’ is wide and includes any sum the tenant is liable to pay under a relevant business tenancy. This would, therefore, cover service charge and insurance rent in addition to the annual rent.

A ‘relevant business tenancy’ includes a tenancy to which Part 2 of the Landlord and Tenant Act 1954 applies. It should be noted that tenancies of an agricultural holding, farm business tenancies, and tenancies not exceeding a term of 6 months are expressly excluded from Part 2 of the Landlord and Tenancy Act 1954 and therefore would not benefit from the provisions contained in Section 82 CVA 2020.

The Act also catches forfeiture proceeds that were commenced prior to the CVA 2020 coming into force, and separate subsections of Section 82 deal with these circumstances.

It is important to note that Section 82 CVA 2020 places a restriction on the Landlord’s remedy of re-entry and forfeiture. It does not alleviate the obligation for the tenant to pay the rent due under the Lease, nor does it preclude the Landlord from pursuing alternative remedies for non-payment of rent (including issuing proceedings for recovery of a debt, deducting money from a rent deposit deed, CRAR, or relying on the interest provisions of the lease for late payments). A Landlord can still exercise their right of re-entry or forfeiture on the basis of other breaches of lease.

If a tenant is unable to pay their rent, they may be able to negotiate concessions with their Landlord such as a rent-free period, a temporary rent reduction, or the ability to pay rent monthly rather than quarterly. Whilst there is no legal obligation on a Landlord to agree to this, most Landlords will prefer to continue receiving at least some rent and retain their tenant rather than receive complete non-payment or an empty premises for which they would become liable.

If a tenant finds themselves unable to pay quarterly rent they could agree reduced rent, rent free, or monthly rent to alleviate cash flow problems in the short term.

Child Arrangement During Lockdown Concerns

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Concerns

If I have a Child Arrangements Order in force for my partner/ex-spouse to see the children of the family do I have to comply with the Order?

Government Guidance say:  ‘Where parents do not live in the same household, children under 18 can be moved from their parent’s homes”. This is clearly an exception to the “Stay at Homes Rules.” The decision that has to be made by parents,  ‘Is it safe for this to happen?”  For example, what occurs if the other parent works for the NHS or as a result of employment is in contact with a number of different people as a result of his or her employment. Clearly this would be unsafe. The parents have to assess what is in the best interests of the children, taking into account the children’s present health, the risk of infection, and the presence of any recognised vulnerable individuals in the household, for example, if the child’s mother or father are asthmatic.       

This is a time when parents should try and communicate with each other about their concerns.  Even if some parents think it is safe for child arrangements to take place by way of visitation or overnight stays others may be genuinely concerned. The parent’s should try and discuss their concerns and try to reach a temporary compromise until lockdown is over and the Order can be fully complied with.

What cannot happen?

Where a Child Arrangements Order is in the force the other parent cannot say there will be no Children’s Arrangements until after lockdown.   In the words of The Rt. Hon. Sir Andrew McFarlane, President of the Family Division and Head of Family Justice, “The key message is  that, where Coronavirus restrictions cause the letter of the Court Order to be varied, the spirit of the Order should nevertheless be delivered by making safe alternative arrangements for the children.”

How can parents deliver safe alternative Children’s Arrangements?

The children’s parents can agree Child Arrangements by facetime, skype, zoom, WhatsApp, or other video communication or by telephone. The main message is to keep all family members safe with the children’s interests being paramount.

What action do I take if my ex-spouse/partner refuses to agree on the children’s arrangement when a court order is in force?

Even though there is lockdown the Family Court are still operating mainly by way of remote telephone hearings or hearing via skype. Applications for Children’s Arrangements Orders and Application to Vary or Enforce Children’s Arrangements Order may be made to the Court.

How can I obtain a child/children’s arrangements order during lockdown?

The Court’s are working very hard to ensure that new cases relating to Children are still listed for Hearing. Parents may make an application to the Court for a Children’s Arrangements Order, which will usually be listed for a remote hearing as soon as practicably possible. The Court is doing its best to ensure that both parents are able to continue to spend time with their children unless there is a very good reason why they should not do so.   Clearly it is very wrong for one parent to refuse the other any contact with their children and it is totally unfair to the children.

If you have any concerns relating to children’s disputes please do not hesitate to contact Lynette-Ann A’Court – Senior Family Solicitor at Aston Bond for your free initial interview  – Mobile: – 07754662438 Email – lacourt@astonbond.co.uk

What can you charge your tenant following the Tenant Fees Act 2019?

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June 2019 brought in new legislation called the “Tenant Fees Act” which introduces a series of rules on what tenants can be charged for by landlords and letting agents.

So what does this new legislation mean for renters?

Well, firstly the Tenant Fees Act will apply to new tenancies and renewals of tenancies. This’ll eliminate those pesky and sometimes unfair admin fees which are notorious, additionally tenancy deposits will now be capped to five weeks.

So what can a landlord or letting agent now charge you for?

  • A refundable “holding deposit” (of up to a maximum of one week’s rent)
  • Deposits now have a maximum of 5 week’s rent for annual rent below £50,000, or 6 weeks’ rent for annual rental of £50,000 and above)
  • Utilities and communication services; Internet, TV licence, council tax, telephone, etc..
  • Replacement costs for things like keys and security.
  • Contractual damage costs for repair.
  • Payment for tenancy agreement changes. Like change of sharer, this is capped at £50 or, if higher, any reasonable costs.
  • Early termination of tenancy (Capped at landlord’s loss or the agent’s reasonably incurred cost)
  • Interest payments for the late payment of rent (up to 3% above Bank of England’s annual percentage rate)

What can a landlord or letting agent not charge you for?

  • Admin costs will no longer be a charge.
  • Check out and renewal fees.
  • Cleaning fees, unless there is certain proof that the property requires a deep clean.
  • Reference checks, credit checks, guarantor requests and insurance policies.
  • Gardening services.
  • To view a property. 

Importantly, the legislation state that unless a fee is listed as one of the permitted fees, it will not be allowed.

If you’re interested in reading the full legislature, then follow this link to the Tenant Fees Act 2019

But remember, the Act states that landlords or letting agents do not need to pay back any fees which were charged before 1st June 2019. This also means fees which are added contractually like checkout or renewal fees past the June date still stand.  This lasts until May 2020.

Additionally if an agent or landlord breaks the Tenant Fees Act it shall be counted as a civil offence and could land them a fine of up to £5,000.

It is particularly important for landlords to be aware of and consider these changes in the future.  Especially so as landlords who have charged an unlawful fee will not be able to evict a tenant until they have repaid these fees. Failure to comply with the legislation can therefore have serious ramifications.

If you require further advice on your obligations as a landlord, please contact us on 01753 486 777 to discuss your issue.

Changes to Employment Pay Rates

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April traditionally sees the increase of various employment-related pay rates. This year is no different.  Here’s what you need to know; whether you are an employer or employee.

National Minimum Wage

As from 1 April 2019, the following minimum rates of pay will apply:

  • National Living Wage (per hour) Age 25+: £8.21
  • Standard adult rate (per hour) Age 21-24: £7.70
  • Development rate (per hour) Age 18-20: £6.15
  • Young workers rate (per hour) Age 16-17: £4.35
  • Apprentice rate (per hour): £3.90

Weekly pay – and unfair dismissal and redundancy calculations

In a number of employment claims, the value of any award or how much employees are entitled to is calculated by reference to a prescribed “weekly pay”.  This weekly pay is capped at a set amount which as of 6 April 2019, has increased to £525.

Consequently, statutory redundancy pay will increase, with the maximum payment increasing to £15,750.

Similarly, the maximum compensatory award for unfair dismissal increases to £86,444 (this only applies to dismissals which take place on or after 6th April 2019) or 52 weeks’ gross actual pay, if that is lower.

Sick Pay

From 6 April 2019, the rate at which statutory sick pay is paid will increase to £94.25 per week.

Family friendly rates

The prescribed rate for statutory maternity pay, adoption pay, paternity pay and shared parental pay will increase as of 7 April 2019 to £148.68 per week.

Pensions

From 6th April 2019, the minimum level of employer contributions into the auto-enrolment pension scheme increases to 3% with the employee required to contribute 5%.  This means that the total contribution into the pension scheme will now be total 8%.

For any further information on this or any other employment matter, please contact Ilinca Mardarescu

Office ‘Banter’ wins over discrimination appeal

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A global software company salesman lost his final appeal for discrimination in November 2018 after complaining about being called various names, including “fat ginger pikey”, “wonky eye” and “salad dodger” in the workplace.

The salesman, David Evans, had been dismissed in December 2016 due to poor sales performance.  However, his dismissal took place after only 11 months employment – falling below the qualifying period in which employees can claim for unfair dismissal.  Mr Evans however made a claim for race and disability discrimination instead. The case reached the Employment Appeal Tribunal who considered whether such comments could be considered discrimination, and, while they usually could be, when taking into account the facts of this case, it was established that they were not.

Mr Evans claimed that he was victimised by his former bosses and colleagues due to his race (as he had strong links to the traveller community) as well as his disability (as he was a diabetic and had an underactive thyroid gland, which he said caused him to gain weight).   Therefore, he felt that some comments, such as “fat ginger pikey” addressed his race, while others, such as “salad dodger” were in reference to his weight, and thus, he felt that these constituted harassment, as well as discrimination due to his disability.

However, during the case it was established that the office culture at Xactly was one of ‘banter’ where good-humoured teasing and joking was participated in by all; indeed MR Evans himself had previously joined in and was further said to have used the ‘c word’ around the office.  It was established that the intention between colleagues was not for offence to be taken. Furthermore, many of those who made the comments towards him either were not aware of his links to the traveller community or his illnesses, they did not think he was fat, or both. Mr Evans had also failed to prove that his weight gain was linked to his disability. Lastly, Mr Evans also waited months to complain about the insults, leading the Employment Tribunal to believe that he potentially only made the discrimination claims to help him negotiate an exit package or avoid any disciplinary action.

The Employment Appeal Tribunal concluded that Mr Evans had not been subjected to discrimination based on his race and/or disability at his former workplace. The case of Evans v. Xactly Corporation Ltd therefore brings to our attention the importance of the factual background of harassment claims.  In order to avoid such claims however, employers should always have clear policies in place and regular training on such issues. And crucially, any complaint that is made should be dealt with quickly to avoid matters escalating.

“Self-employed-plus” Hermes workers: A significant development for gig economy workers’ rights?

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European parcel delivery giant Hermes has introduced a new label for the nature of their workers’ contracts, namely “self-employed-plus” in a bid to reach a compromise with the courier’s union workers. An Employment Tribunal based in Leeds in June of last year held that Hermes couriers are ‘workers’ rather than being ‘self-employed’ as suggested by their job description.  

This optional middle-ground which lies between being a ‘worker’ or an ‘employee’ allows Hermes drivers an entitlement to basic workers’ rights which include earning nine per cent above the national minimum wage and the ability to take annual leave on a pro-rata basis, both of which had previously not been automatic entitlements.  Choosing a self-employed-plus contract also allows Hermes’ employees to join the GMB and benefit from union representation.

This development has come in the wake of many similar organisations, including Uber, Deliveroo and Pimlico Plumbers, whose ‘self-employed’ workers’ contract terms have been subject to scrutiny in the courts with regards to the distinction between workers and employees. This seems to conform to the recent tendency of employment tribunals to find some sort of employment status where there is any uncertainty.

A new issue arises from this third category with regards to taxation. Some commentators argue that since those on self-employed-plus contracts are still paying tax as if they were self-employed, and Hermes is therefore making no national insurance contributions on their behalf, there may be complications with how HMRC will view this sort of arrangement.

The majority, however, view this development with optimism and excitement at the possibilities of finding new modes of working within the gig economy. The general consensus among employment lawyers is that the boundaries between employed and self-employed status have become increasingly blurred in recent years, and this new ‘self-employed-plus’ contract provided by Hermes is a direct manifestation of the desire for clarity. 

Aston Bond at Slough Aspire Careers Fair 2019

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Helping young people take the right step is important for Aston Bond, that’s why year after year we’re thrilled to take part in the annual Slough Aspire Careers Fair. With over 2,000 young students from year 9 and upwards in attendance it gives us a great opportunity to help direct and inform those who’re looking to get into a career in law, or for those undecided; make the right choice for their future in the workplace.

It was a packed day with plenty of students asking questions, discussing options and planning a potential career. It was amazing giving young people interested in a career in law the advice they need to peruse it, whether that is becoming a solicitor, barrister or even a judge. As well as which area of law they would take; which made for some great discussions!

If you’d like to know what it takes to become a Solicitor then look at one of our previous articles here.

Some photo’s from the event.