Success in the First Tier Tax Tribunal

 

Friday, January 29, 2016

 

Rogers and Norton successfully appealed a Decision not to restore rum and wine imported from Jamaica. The import documentation and declaration had been incorrectly completed by the shipper and broker, which described the rum as low alcohol beverage. However, on Appeal, the First Tier Tribunal accepted that Border Force and its Review Officer had not taken into a number of factors including (a) the financial difficulties experienced by the refusal to restore, (b) the Appellant was a new business and (c) that the declaration was not the fault of the Appellant.

Peter Hastings, acting for the Appellant comments “Our client was delighted with the Decision and that the matter has been referred back to Border Force to reconsider the request to restore. It is essential that when a Review is sought, all points and factors to consider are detailed for Border Force to consider, and if they fail to consider each point this will help on an Appeal. If the Decision not to restore is unreasonable, the Tribunal will consider allowing the Appeal”.

Peter adds “I would also like to praise David Bedenham, counsel, of 11 Kings Bench Walk for his skilled advocacy and detailed preparation leading up to the hearing”.

The team is currently acting for businesses and individuals on a number of Border Force and HMRC matters including Appeals to the First Tier Tax Tribunal and also advising businesses on the Alcohol Wholesale Registration Scheme.

Guest at Rogers and Norton Charity Ball wins a diamond worth over £3000 for a tenner!!

Wednesday, January 27, 2016

Following the Winter Wonderland Charity Ball held at Barnham Broom in November raising funds for Nelson’s Journey, the presentation of a diamond worth £3250 has taken place at Zelleys Jewellers in St Giles Street Norwich to the lucky winner, Mrs Helen Youngs. 

Guests at the Ball, hosted by solicitors Rogers and Norton, purchased tickets for £10.00 each for a chance to win the diamond and Mrs Youngs was the lucky winner.  The diamond was kindly provided by Zelleys Jewellers and the evening raised over £12,000 in total for the Charity.



The above photo shows Mrs Youngs receiving the diamond from Graham Knights and Ellie Walpole of Rogers & Norton and Alistair Zelley representing Zelleys Jewellers.

New Year’s Resolution – Make a Will

 

Tuesday, January 26, 2016

 

According to a recent article in Moneywise, most UK adults risk dying intestate.

Almost nine out of ten people aged 20-29 have no Will in place according to research by the financial adviser comparison site unbiased.co.uk. and nearly two-thirds of 40-49 year olds and 60 percent of 50-59 year olds have not made a Will. Should they die now they would die intestate.

This means that they would not have a say in what happens to their estate. The “Rules of Instestacy” will divide their estate according to pre-determined rules which will not take into consideration any wishes they may have had.  It also may not be dealt with in the most tax-efficient way.

How likely you are to have a Will in place also seems to depend on where you live. In Brighton for example, 70 percent of respondents said they have no Will. In contrast, only 55 percent of Glaswegians said they had not made a Will.

The most common reason for not having a Will is that people are putting it off until they are older and this includes about one in seven people in their sixties. Meanwhile, 17 percent say they have too few assets to make a Will necessary.

Karen Barrett, CEO of unbiased.co.uk says that “Our research made two especially interesting findings, which are rather at odds with each other. We confirmed that people really do want to ensure their loved ones are taken care of after they’ve gone – but that most aren’t doing anything about this.”

Everyone should have a Will. We spend our lives looking after loved ones and by making a Will it ensures that when you die your estate is distributed according to your wishes whatever the size of your estate. Should you not have children it is equally important to make a Will so that the people or charities you care about inherit.

The advice from the Law Society is that trying to make your own Will without legal assistance can lead to mistakes or lack of clarity and could mean that your Will is invalid. You should consider:

• who should carry out the wishes in your Will (your executor/s)
•  any gifts or other special wishes such as burial/cremation
•  who should look after your children (if you have any)
•  who you would like to leave the remaining estate to and what happens if any of your beneficiaries die before you do.

 
If you have long-term residential or business connections outside England and Wales this may have tax and administration implications and you will need legal advice as to how it could affect your Will.

Once you have written your Will you should review it at regular intervals to make sure that it still reflects your wishes.  This is especially important if you:

• Get married/enter into a civil partnership as your Will is automatically cancelled by these events
• Get divorced
• Have children or other relatives you wish to benefit such as nieces, nephews or grandchildren
• Have bought a new house or acquired other assets

 
If you would like to discuss making a Will, or changes to an existing Will, please contact Wenke Lie-Critchley on 01953 458162 or email wlc@rogers-norton.co.uk.

Employment Law Bulletin January 2016

Thursday, January 21, 2016

Welcome
 
If you have embarked on a disciplinary or two after the festivities, you won’t be alone.
 
The perils of alcohol-fueled Christmas parties are well-documented, and their aftermath often leaves employees with more than just a red face and a tarnished reputation.
 
The point is that January is the month for sorting out. It’s a time for   resolving to do the things you may have been putting off – reviewing your policies and auditing your procedures, for example. Whether it’s tackling day-to-day management issues, ironing out operational problems, or making the big, strategic business decisions, go for it. It’s what the beginning of a new year is all about.

Different disciplinary treatment could be justified
 
MBNA v Jones
 
Two employees became involved in some sort of kneeing, face-licking, punchy, text message-threatening exchange that began at their employer’s 20th anniversary bash at the races. What started as fun or banter, as onlookers saw it, escalated and led to one of the men losing his job.
 
The long and short of it was that he was dismissed for punching the other in   the face. The other employee, who had sent threatening texts once the men had left the event, was given a final written warning. Two employees, same episode, different treatment. Was the dismissal of the first fair?
 
No, said the tribunal. Both employees had committed acts of gross misconduct and there was unfair disparity of treatment.
 
The Employment Appeal Tribunal overturned that decision. The dismissed employee had punched the other in the face at a work event at which staff had been told about the standards of behaviour that would be expected of them.   The other employee had later threatened to do something that he didn’t carry out. The more lenient treatment of the second didn’t make dismissal of the first unfair; that decision wasn’t wrong or outside the band of reasonable responses. The two men were disciplined for different things.
 
So, even though consistency is really important in disciplinary situations, it can be ok to treat employees caught up in one incident differently.  But tread cautiously. You need to be very clear about who did what, and about the sanction that’s appropriate to their actions. Keep good notes of the thought processes you have followed in reaching your decisions.
 
If you’re unsure about any of this, get some good, early legal advice.

Negative references and discrimination

Pnaiser v NHS
England and Coventry City Council

Ms Pnaiser worked for Coventry City Council. She was disabled and had had quite a lot of absence. When she was made redundant, she negotiated a settlement agreement that contained an agreed reference.     She was then offered a job with NHS England. But that offer was withdrawn after a conversation between her recruiting manager and the Council. There was some debate later on about what exactly the Council officer said during   that phone call and how, but the gist was an implication that Ms Pnaiser might struggle to cope with the new role. Crucially, Ms Pnaiser’s sickness absence was mentioned.   She alleged disability discrimination against the Council and NHS England,  winning on appeal. The Employment Appeal Tribunal said that the tribunal had   taken the wrong approach. As the Council’s comments about unsuitability were at least partly because of Ms Pnaiser’s absence (which was a consequence of her disability), it was for the Council and NHS England to show that the sickness absence played no part in the reasons Ms Pnaiser was said to be unsuitable for the role, and in the withdrawal of the job offer.     The big lesson here for employers is: stick to the agreed reference.  It’s always best to agree a reference that is as full and accurate as you can make it, and don’t depart from it. And if you are the potential employer, you will   need to carefully judge a situation in which you’ve been given more   information about a job candidate than their agreed reference reveals. Weigh up the discriminatory implications of acting on that information, and the  consequences of taking on an employee who you have discovered may not be up to the job.

Transgender guidance
 
A new guide has been published to help employers deal properly with transgender staff. It’s all about creating a more inclusive culture.
 
As well as helping employers recruit and retain transgender staff, the guide  sheds light on the day-to-day management of transgender issues.
 
One of the really interesting sections is about handling situations in which   an existing employee embarks on a transition. Employers may not know immediately how best to support that employee, including how to communicate what’s happening. Nor will employers necessarily have the right systems and policies in place to deal with the sorts of situations that may crop up.
 
It’s a guide that is well worth every employer reading.

Bigger fines for corporate breaches
 
The law is about to get tougher on organisations which have fallen foul of health and safety rules.
 
From 1 February 2016, corporate manslaughter, health and safety, and food safety and hygiene breaches (whenever they took place) will attract greater fines. In the most serious cases, this could be as much as £20 million.
 
 Penalties will be relative to the severity of what’s happened, and the size of your business. Even those employers who operate in what is considered to be a low hazard environment, or who have robust systems in place that take care of risks, should sit up and listen. Every organisation has the capacity to trip up, and the potentially devastating effects of a breach – in all sorts of respects – could see that organisation crumble.

Attendance policy didn’t need adjusting
Griffiths v Secretary of State for Work and Pensions
 
The duty to make reasonable adjustments engages once an employer knows (or should reasonably be expected to know) that an employee is disabled. But as  this case has shown, there are limits on what an employer will be expected to do.
 
Ms Griffiths was disabled. Her 66 days of absence (62 of which were because of her disability) triggered a written warning under her employer’s attendance policy. She claimed disability discrimination. Her view was that   the DWP ought to have held off from issuing the warning. Its procedure should   have been modified to allow her more days off work than a non-disabled   person, and periods of sickness absence related to her disability should have   been disregarded. These would have been reasonable adjustments, she argued.
 
The Court of Appeal said no. The employer’s provision, criterion or practice (the requirement to work at a certain level to avoid getting warnings and possibly being dismissed) didn’t put Ms Griffiths at a substantial disadvantage. The same sanctions applied to her non-disabled colleagues. On   the facts of this case, it wasn’t reasonable to expect the employer to alter its policy.
 
The same outcome may not apply in other cases; it really does come down to the specifics of each situation. The Court of Appeal confirmed that the duty to make reasonable adjustments can apply to sanctions under an absence management policy, even where that policy treats disabled and non-disabled employees equally.

Preparing for a wage hike

Is your business   ready to cope with introduction of the National Living Wage in April 2016?     The press is reporting the views of some that recruitment will be scaled   back, workforces reshaped, and prices put up to cover the extra 50p per hour that will need to be paid to lower-earning workers. Increasing basic pay to £7.20 for workers aged 25 and over may not be something that affects you or your business significantly or at all. But even if that’s so, it could well affect those you’re doing business with; suppliers, for example, who may have to look at their commercial options.     Wherever you stand in all of this, it’s sensible to address your mind to the potential consequences. And bear in mind, too, that the living wage is set to go up to £9 per hour by 2020, so you might want to factor that into your planning.

And finally…
Kitchen possible? 
 
If you watched the TV documentary Kitchen Impossible, you are bound to have been left with more than just an impression of the pressures involved in the catering industry.
 
The series followed a group of disabled people learning the ropes under the guidance of Michel Roux Jr. And it exposed many of the everyday challenges that face those with disabilities, not least when it comes to employment.
 
And this is timely. The Government is in the midst of trying to halve the employment gap between disabled and non-disabled people and wants businesses to provide more opportunities to those who might otherwise be left out of the marketplace.

This is against the backdrop of some employers’ nervousness around learning disabilities, as a survey by Mencap and Inclusive Employers has revealed.   Concern about interaction between customers and staff was highlighted, as well as concern among 23% of the 60 or so UK businesses surveyed that not all   colleagues would feel happy about working with someone with a learning disability.
 
While some of these statistics may make for uncomfortable reading, one of the   themes that emerges is more positivity among those organisations that have employed people with learning disabilities.
 
There will be some way to go before there is wholesale change both in attitudes and in the statistics. But as knowledge and awareness grows, it’s hoped that more employers will embrace the benefits of a workplace that is open to all.

Financial Loss in Fatal Accident Claims

Tuesday, January 19, 2016

It is a sad occurrence when anyone is killed in an accident, but when that accident was avoidable and caused by someone’s actions or omissions, often a claim in damages can be pursued. This is an area of law which requires expert assistance and which has to be handled extremely delicately and with the utmost sympathy. To try and value someone’s loss by an award of damages is impossible and quite understandably can in itself cause additional grief and trauma to the surviving relatives. However, the award of damages is the means the law provides to compensate for a loss of life, where the death has arisen by an act or omission of someone else and part of that award is to provide a financial sum to compensate for the loss of both the financial dependency (often earned or pension income) that the deceased provided but also the non financial dependency (assistance with gardening, DIY and household chores for example) that was provided.

This article will not examine the extent of potential Claimants following a loved ones death or the extent to which the law can compensate for bereavement as both are complicated issue and matters upon which legal advice should always be sought. This article instead will look at the issue of the calculation of loss in the light of the case of Knauer (Widower and Administrator of the Estate of Sally Ann Knauer) (Appellant) v Ministry of Justice (Respondent). This case is taking a very important issue to the Supreme court on the calculation of loss under a Fatal Accident Claim and is due to be heard on the 28th January 2016 by a panel of 7 judges. The case was held to be so important that its procedure from the High Court to the Supreme Court bypassed the Court off Appeal as it is seeking to change the law which is currently in force.

The significance of this case is that under the current law, the courts will always calculate loss arising from someone’s death by calculating all losses from the date of the death. This means that if someone would have survived for say 20 years but for the fatal accident, the loss will be calculated for that 20 year period but, the 20 years will be discounted to reflect the fact that the loss is being paid as a lump sum and can be invested over the 20 year period and achieve a return of interest. For example, a 20 year loss of say £10000 per annum could be awarded at around 15.7 years x £10,000 to reflect the early receipt of the damages. However, quite often the assessment of Fatal Accident Damages takes place many years after the death but the loss is still calculated from death. Therefore, losses which have now occurred and which have passed are still calculated by the multiplier from the date of death. In short this approach means that a Claimant claiming under the Fatal Accident Act is receiving potentially less damages than they should receive based on the deceased life expectancy and the period of time past since the death. It is also an approach which is arguably inconsistent with the approach used in personal injury claims were no death has occurred but losses continue to occur into the future.

The issue the Supreme Court needs to decide in Knauer is whether the correct approach to calculating Fatal Accident Damages should be to allow all losses since death to the date of the assessment of the claim in full, without applying any discount and only discount for early receipt the losses occurring after the assessment, using the above approach, until what would have been the deceased assumed date of death if the accident had not occurred. This will then only discount for early receipt the dependency claim which, but for the Fatal accident, would not have at that time been received.

The approach being contended for in the case of Knauer has been a view expressed as more appropriate by many lawyers and legal commentators for many years and if applied would likely increase the overall value of Fatal Accident claims. As such lawyers will be looking for the outcome of this case as it may well effect many Fatal Accident Claims which are currently being investigated and it will be interesting to see if the Supreme Court take this opportunity to change the law on this issue.

Whilst the Supreme Court hearing is on the 28^th January 2016, the final judgement may take a while to be handed down but this is a judgement which all personal injury lawyers will be looking out for with great interest.

Mark Hambling is a Director of Rogers & Norton, a Senior Litigator with the Association of Personal Injury Lawyers and handles Fatal Accident and Personal Injury Claims within the Rogers & Norton Personal Injury team in Norwich and Attleborough

For more information please contact Mark Hambling on 01603 675611 or email mbh@rogers-norton.co.uk.

Not just any Break Clause…

Supreme Court dismisses Marks & Spencer’ appeal for repayment of overpaid rent following termination of Lease by break notice.

Prospective Tenants need to be wary of the way break clauses in leases are drafted following the case of Marks & Spencer plc (Appellant) –v- BNP Paribas Services Trust Company (Jersey) Limited and another (Respondents) [2015] UKSC72 which was decided late last year.

Marks & Spencer (M&S) were tenants of a part of a building under a Lease which included a break clause allowing them to break the lease conditional on there being no arrears of rent and on payment of a lump sum of just under £1m (reflecting exactly a year’s rent).

The break date fell in the middle of a quarter on 24 January 2012.  On the quarter day prior to the break date (25 December 2011) M&S paid the full quarter’s rent, full quarter’s car park licence fee and the full quarter’s on account service charge.  Approximately six months prior to the break it also paid a year’s insurance premium.  There was no provision in the Leases expressly obliging the Landlord to repay any rent in respect of the period following on from the break date. M&S nevertheless argued that the overpaid rent (in respect of the period after the Break Date) should be repaid to them.

The matter passed through the High Court and the Court of Appeal to the Supreme Court who ultimately concluded that:-
In the absence of an express term in a lease or indeed any other contract a term will only be implied if it satisfies the test of business necessity and:-

1. it must be reasonable and equitable
2. it must be necessary to give business efficacy to the Contract so that no term will be implied if the Contract is effective without it
3. it must be so obvious that it “goes without saying”
4. it must be capable of clear expression
5. it must not contradict any express term of the Contract.

The Supreme Court therefore concluded that the general law on apportionment of rent is that without an express term rent paid in respect of a period after the end of a Lease is not repayable by the Landlord.  In this case therefore M&S were not entitled to recover the overpaid rent.

Bruce Faulkner comments “In many cases this will not be an issue because Break Dates tend to fall at the end of a Rent Period but Tenants should ensure that, when negotiating break clauses, specific terms are included obliging the Landlord to repay any rent and other payments paid in respect of any period after the break date.

Although this particular case related to a break clause in a Lease, it also has relevance to other commercial situations and the message from the Supreme Court is clear that where there is a detailed commercial Contract the Court will respect the bargain struck and will not, unless absolutely necessary, interfere with what the parties have put in writing”

For further information please contact Bruce Faulkner on 01603 675608 or email bwf@rogers-norton.co.uk.