Debt Respite Scheme (Breathing Space) – Rules coming into force from 4th May 2021

4th May is sometimes known as Star Wars Day – May the 4th be with you!

Well 4th May 2021 is a significant date for those who have incurred debts during the last 14 months or so of the Coronavirus pandemic within the UK. Debts have mounted for many and a new scheme is coming into force from 4 May 2021 which will provide some relief for a short period of time for some many millions of debtors.

The aim of the Debt Respite Scheme also to be known as Breathing Space has been introduced to help those who find themselves in debt and it will have the effect of freezing interest payments and suspend any enforcement action for a specified period of time.

There are two types of Breathing Space under the scheme:-

• Standard Breathing Space
• Mental Health Crisis Breathing Space

Standard Breathing Space is available for individuals and will allow them a period of 60 days breathing space from any action being taken against them including any contact from the creditor or any enforcement action. During this 60 day period any interest charges are also frozen. The standing breathing space can be accessed just once within a 12 month period of time.

Mental Health Crisis Breathing Space differs slightly in that it is not limited to a specific period of time but lasts for the duration of the individual’s period of treatment plus an additional 30 days. There is no limit on this breathing space and it can be used whenever an individual is in a mental health crisis subject of course to specific criteria.

When/how does this apply?

Can only be initiated by:

• A Local Authority
• A debt advice provider who is authorised by the FCA (Financial Conduct Authority) to provide debt counselling

The creditor will be advised via an electronic service and may also receive notification in the post. The time period begins to run from the day after it appears on the register so if notification is given via the postal service then the period of breathing space may already have begun.

The creditor will be notified as well when the breathing space ends.

Action by the Creditor on receipt of Breathing Space Notice?

On receipt the creditor or for that matter claimant has a responsibility to inform any enforcement agency that they have been served with breathing space notice. This then has the effect of suspending any enforcement action against the debtor for the permitted specified period of time. Enforcement agents during this time are stopped from having contact with the debtor, unable to give notice of enforcement, unable to obtain a Warrant or Writ, unable to take control of goods, unable to visit the debtor’s home or business, stopped from serving notice of property possession and unable to take possession of property.

Types of Debts covered by the Scheme:

• Credit cards
• Store cards
• Personal loans
• Pay day loans
• Overdrafts
• Utility bill arrears
• Mortgage or rent arrears
• Government debt such as council tax
• Debt owed by an individual to a business or another individual

Debts not covered:

• Any business or commercial debt if the debt relates to the business and not a debtor personally

Excluded Debts:-

• secured debts (Mortgages, hire purchase or conditional sale agreements), only those arrears included at the date of an application for breathing space. Any new secured debts after the breathing space starts are not protected. If a secured debts remains as an ongoing liability and the debtor misses a payment then this can mean the debt adviser stops the breathing space
• debts incurred from fraud or fraudulent breach of trust
• liabilities to pay fines imposed by a Court for an offence
• child maintenance or obligations made in family court proceedings
• student loans
• advance payments of Universal Credit
• council tax liabilities not yet fallen due

We are happy to offer further advice and guidance relating to the scheme however, should you require further detailed information or details then please see the Debt Respite Scheme at:-

https://www.gov.uk/government/publications/debt-respite-scheme-breathing-space-guidance/debt-respite-scheme-breathing-space-guidance-for-creditors

All aspects of Debt Recovery work undertaken by the team at Rogers and Norton including:-

• Drafting and preparation of letters before action
• Issuing Court proceedings (including County Court/High Court)
• Obtaining of Judgments
• Enforcement action (including Attachment of Earnings Orders, Charging Orders and Third Party Debt Orders)
• Insolvency claims
• Insolvency claims (including service of statutory demands, bankruptcy and winding up petitions)
• Validation Orders

The sectors we have assisted include Construction Industry, National Finance Companies and those dealing with Hire Purchase Agreements, Landlords, Schools, Accountants and Manufacturing Companies.

For all your debt recovery needs contact the team via telephone (01603 666001) or alternatively email web@rogers-norton.co.uk with your initial enquiry. 

Success for Rogers and Norton’s HMRC and Border Force Team

 

Our Team is delighted to have secured the restoration of goods that had been seized by UKBF as our client did not have a CITES Import Permit.

Our specialist team argued that a CITES Import Permit was not required as they fell under our client’s personal derogation as per Article 57.5 of Commission Regulation no 865/2006 paragraphs 3 & 4, and she had a full export licence in place. It was accepted that the goods should not have been seized. Our client commented “wow, I am really pleased and will always recommend you”.

Recently the Team has also successfully recovered very significant damages and compensation for businesses who have had goods unlawfully seized and destroyed by UKBF/HMRC. The Claims were referred to a Referee pursuant to Paragraph 17 of Schedule 3 to the Customs and Excise Management Act (CEMA) 1979. The Team is also acting for a number of businesses with Duty and VAT issues with HMRC, especially in relation to goods imported from Hong Kong and China, and are pursuing many cases of all goods and commodities through the First Tier Tax Tribunal and Magistrates Courts.

In addition, the Team is dealing with a dispute with HMRC concerning Farming Sideways Relief. Trade losses may be relieved by deducting the amount of the loss from other types of taxable income. There are restrictions to the use of losses in this way, known as sideways relief, to ensure that relief is only given for genuine commercial losses. The Appeal will be heard by the Court of Appeal in December 2021.

Reputation leads to Pre-Easter Boom in Conveyancing

 

Stamp Duty holiday and Team’s 

1st Apr 2021

Our Property and Conveyancing Team have seen an ever increasing of new instructions for the sale and purchase of properties, and from developers.

Since the Government announced the reopening of the housing market back in mid-May 2020, our Residential Property team at Rogers and Norton have received a dramatic and record increase in instructions. Our large and talented team adapted remarkably well to the lockdown restrictions and with Easter upon us, have worked tirelessly to achieve clients’ objectives. The team have worked long hours and over weekends to overcome the challenges raised by this unprecedented situation, and to help our clients complete their move where possible. All offices at Norwich, Attleborough and London have received a record number of instructions in recent months. We have received positive feedback from our clients who appreciate that there have been many challenges for all of us.

A recent testimonial regarding our Conveyancing Executive Vikki Lambert is an example of the appreciation we received and the service we provide.

Kate Garraway and the legal protection we should all have in place

 

Kate Garraway’s heart-breaking story of her husband Derek’s year-long battle with Covid has been made even more complicated by the lack of legal protection she and Derek had in place. Kate was unable to access funds to manage her husband’s care or refinance her mortgage. She didn’t even have the legal right to see his medical notes, owing to data protection.

Research by SFE, shows that 65% of us think our next-of-kin will make medical and care decisions for us if we are no longer able to. In reality, this isn’t the case unless a Health & Welfare Lasting Power of Attorney is in place. Whilst there’s been a rise in the number of enquiries made about Lasting Power of Attorneys (LPAs) during the pandemic, only 22% of people in the UK actually have one.

To avoid this difficult kind of legal situation it’s important to use a specialist lawyer who is experienced in this area of the law, and is trained to support people making these crucial, complex and difficult decisions. According to Which? 22,000 LPAs are rejected every year so it’s essential that you get your legal documents right.

Lasting Powers of Attorney are beneficial in allowing those you trust to be appointed to assist with your property, finances and your health and care decisions. To read more about these documents please see our FAQ section.

Throughout the pandemic the Private Client team in Norwich and Attleborough have continued to assist their clients in putting in place these documents. Instructions can be taken over the telephone, via teams or in person depending on what works best for the client. Each client can have a tailored approach to the way in which we prepare their documents to ensure these are put in place in a timely but safe manner.

Laura Rumsey, Solicitor in the Private Client Team in Norwich and member of SFE (Solicitors for the Elderly), the membership organisation for specialist solicitors who support older and vulnerable people is more than happy to assist and can be contacted on 01603 675645 or lr@rogers-norton.co.uk.

New appointments for Rogers and Norton

 We are delighted to announce the arrival of three new members of our team.

Experienced fee earner starts in Commercial Property

We are pleased to have appointed Paul Oldershaw into our Commercial Property Team in Norwich. Paul has many years’ experience and brings a wealth of knowledge to strengthen our Property Team.

Paul graduated with a degree in Law and Economics from Keele University before completing a post graduate diploma in Legal Practice. He qualified as a Solicitor in 2003 and has specialised in Commercial property since then.

His vast knowledge and experience includes property development, advising business occupiers of office, retail and industrial property, agriculture, property investors, licenced trade and secured lending.

The Legal 500 describes Paul as “patient, helpful with incredible attention to detail”.

If you need any Commercial Property advice then please contact Paul on 01603 675622 or email paul.oldershaw@rogers-norton.co.uk

New Trainee Solicitors

Jack Crosthwaite and Chloe Tooley join as new Trainee Solicitors and will commence their training with Peter Hastings in our Litigation Team and Richard Etheridge in Company & Commercial Team respectively.

Jack graduated from Manchester Metropolitan University with a Law degree in 2019 before completing the Legal Practice Course and Masters also at Manchester.

Jack’s interests include football and fitness including amateur boxing where he represented Attleborough Boxing Club over several years. He has even competed internationally and won a gold medal boxing in Finland!

Chloe graduated from University of Sheffield with a Law degree, which included a year studying in The Netherlands at the University of Groningen. She then completed the Legal Practice Course in Sheffield before taking a role as a Litigation Paralegal dealing with damage claims on behalf of a large UK corporation.

Chloe’s interests include dancing and performing arts achieving high grades through the International Dance Teacher’s Association. Singing and art are also keen interests.

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The appointment of an experienced fee earner and two new trainees is very positive news as we continue to grow and strengthen our team.

In a challenging year for everyone, Rogers and Norton has adapted and progressed with projects to increase efficiencies and to ensure excellent client care. This is testament to our staff and their hard work and efforts over the past year.

More success for Rogers and Norton’s Litigation team in defamation claim

 Our Litigation team led by Peter Hastings successfully concluded a claim for Mutual Aid Sheringham (MASh).

It was alleged in May 2020 that our clients were subject to Police Investigation. This allegation was completely untrue and false. We advised our clients that this was a defamatory statement, and advised our clients that they had a claim in defamation. A letter of claim was issued and we engaged with Sheringham Town Council and its solicitors in pursuing the claim. Our clients received an apology and admission that the statement was false and untrue. The Council settled a claim for damages and costs. Our clients are delighted that they can now put this event behind them and continue to serve the local community, working with the Council.

Our clients commented “Throughout the duration of our case Peter Hastings and the team at Rogers and Norton worked tirelessly with incredible diligence and professionalism, promptly and ending with the best outcome. We really felt like they were working for us and we very much appreciated their skills and second to none expertise. I would not hesitate to recommend them to anyone. Peter, you are what they call a legend. “

This Valentine’s Day ensure your loved ones are provided for in your Will

 With Valentine’s Day approaching, thoughts are turning to the loved ones in our lives. Now more than ever is a good time to look ahead and ensure that those you care for will be provided for in later life.

Intestacy

The current pandemic is focusing minds on the future and leading many to review their affairs. The naïve assumption that your loved ones will be provided for simply because they are ‘your loved ones’ is not enough. If you die without leaving a valid Will in place, this is termed intestacy and these rules determine who inherits your assets. This is the law and you have no control over who inherits what.

Partnership and step-children

If you are not married and in a partnership without a Will, it could mean your partner is left with nothing as partners are not included under intestacy rules. This could leave them in a desperate financial situation making an already extremely difficult and emotional time even worse. Remember, too, that step-children are not included under intestacy rules and children you may regard ‘as your own’ may be left out from any inheritance to help secure their future.

Will Consultation and Instructions

During this third lockdown as key workers we are continuing to prepare Wills and maintain our high standards of service. Although no longer offering face-to-face meetings, we can take instructions for your Will over the phone or via video link. A draft will be sent to you by post or email for your approval. Once you are fully happy with the contents of the Will, arrangements can then be made for it to be signed.

We will be pleased to discuss the contents of your Will fully with you. Areas to cover include choice of Executors who will be responsible for carrying out the actions specified in your Will, any particular funeral wishes, guardianship issues, any gifts you wish to leave and who you wish to leave your main estate to.

We can also discuss including Trusts in your Wills such as Life Interest Trusts or Discretionary Trusts which may be beneficial for some.

Signing of Will

The Will can either be posted to you with instructions on how to witness it or we can arrange for the Will to be signed outside one of our offices or outside your home in accordance with Government Guidelines and in a Covid-secure manner if you’re unable to travel to our office and live locally. During the pandemic it has even been made legal to sign Wills via video link; however, caution must be taken with this method of signing and this should only be used as a last resort due to potential disputes and problems in the future.

Contact

Please contact us at our Norwich office on 01603 675645 or at our Attleborough office on 01953 458162 to discuss making a Will or up-dating an existing one.

Remember that making a Will is one of the most important things you can do for your loved ones to ensure peace of mind that they will be provided for financially.

Continued success for HMRC and UK Border Force Litigation team

 The Rogers & Norton HMRC and UK Border Force Litigation team were delighted to help with the restoration of goods (Nitrous Oxide) worth more than three hundred thousand Euros for a company importing from Europe to be sold to legitimate users within the catering sector.

The seizure and significant consequences for the company at a challenging time of year to find a solution to the problems they had with HMRC. Unless restored, our client would not have recovered the monies it paid for the goods and its customers would have had claims for breach of contract. The future of our client was at risk. Our specialist team that deal with HM Revenue and Customs (HMRC) claims, in particular relating to the detention of goods, seizure of goods, understood the need to react quickly to get the goods restored, as the effect on cash flow together with the potential impact on jobs, would be problematic for any company. It is illegal to supply or import for personal use, unless it can be proved to be destined for use in cream chargers for use in the catering industry. It was the UKBF’s case that the Goods imported were liable to forfeiture under the Customs and Excise Management Act 1979 (‘CEMA’), because they were in breach of a prohibition imposed by s.12 PSA 2016. They were also liable to be forfeited under the Psychoactive Substances Act 2016 (‘PSA’), as they could be consumed by any individual for their psychoactive effects; and the importation was not for an exempted activity. Our client’s evidence proved that the goods were for lawful use, and combined with our compelling arguments on financial hardship, the goods were restored.

We are currently pursuing other claims for damages against HMRC and UKBF, ranging from £50.000 to £6 million. Additionally we are challenging VAT and Duty Assessments from £30,000 to £1million.

We are experienced in Magistrates Court proceedings; First Tier Tax Tribunal; Court of Appeal; European Convention on Human Rights; Administrative Court and Injunctions and can assist with Tax, Coding and Duty and Vat claims and issues.

Lessons to Learn in Construction

Our construction team successfully defended an Adjudication brought against its contractor client for £350,000 by a subcontractor. The case was largely successful due to establishing through expert forensic evidence that a quotation for a fixed fee had not been received by email. In other cases in the past few months, issues ranged from the validity of Pay Less Notices and also payment terms.

This lack of clarity has led to adjudications which could have been avoided.

The Housing Grants Construction and Regeneration Act 1996 (“the Act”) brought in to force a clear procedure for procuring payment and objecting payment should the contract in place between the parties not provide its own mechanism. .

The procedure is as follows:

• The subcontractor applies for payment to the main contractor stating how much is due.
• 7 days later is the ‘Due Date’. This is not the date the money is paid but rather a legal term to start the next stages of the payment process and acts as a reference point in time for other processes. Importantly it is the point in time for which the dates of the Payment Notice, Pay Less Notice and Final Date for Payment are based on.
• 5 days after the Due Date the main contractor must issue a Payment Notice or a Pay Less Notice stating how much they intend to pay and showing the calculation that forms that valuation.
• 14 Days after the Payment Notice or Pay Less Notice is the Final Date for Payment. If the parties agree the value due the payment is made or; if they cannot agree the value the parties will refer the dispute to an Adjudicator.

The appointment of adjudicators and provisions for Pay Less Notices are governed by The Scheme for Construction Contracts (“the Scheme”)

On the face of it this process seems fairly simple but yet is the subject of many adjudications.

Two recent adjudications even concerned the same invoice.

The first issue was the subcontractor having a rather shambolic way of invoicing our Client. There were a number of administrative errors with the invoice and it was rescinded and re-issued with revised numbers. Furthermore two invoices were later sent with the same invoice number but for different amounts and it had been sent to our Client by two separate companies.

The subcontractor also maintained that the invoice was physically handed to our Client some months earlier but had no proof. Our client’s evidence was accepted.

The issue here is timing. The issuing of the Invoice is key to setting the timeframes for the rest of the payment procedure following the Act. If it is not known or agreed when the Application for Payment occurs then there is the potential for lengthy arguments to ensue regarding whether a Pay Less Notice has been issued in time or when the Final Date for the Payment is.

Following the Adjudicator finding in our client’s favour the subcontractor referred the issue to another Adjudication, this time submitting that the Payment Application was served on a different date.

In another Adjudication, we argued that a valid Pay Less Notice had been issued within the correct time frame. The consequences of issuing a Pay Less Notice out of time is that the main contractor is liable for whatever figure is on the Application for Payment. We argued that a valid Application for Payment had not been received until a certain date and as such relied on an email served on time as our Pay Less Notice.

If it is ambiguous as to when a payment application has been issued it will naturally be ambiguous as to if a Pay Less Notice has been served on time, it is in that ambiguity that costly and time consuming arguments thrive

The requirements under the Scheme for a Pay Less Notice to be valid are as follows:

• It must clearly state what value the main contractor believes is the correct amount due for the work carried out; and
• How they have calculated that figure.

There is no further guidance on format, the document does not have to state that it is a Pay Less Notice. It is easy to see how parties can attempt to rely on all sorts of documents as Pay Less Notices. Once again, these can lead to drawn out tedious arguments in adjudications as to what constitutes a valid Pay Less Notice.

Whenever drafting a Pay Less Notice, it is drafted with absolute clarity, clearly setting out the amount the issuing party intend to pay and how that figure was reached. The more detailed the calculation the better. Whilst is not a requirement under the Scheme it is good practice to mark the document as a Pay Less Notice, heading the email as Pay Less Notice and if sent under a cover letter, state clearly that a Pay Less Notice is being issued.

We are regularly advising on Construction Law and drafting the relevant documents such as Pay Less Notices, Referral Notices and other Adjudication documents. With the government’s current drive to ‘Build Back Better’ and focus on these types of projects we can only see more on the horizon. From drafting clear documents to avoid disputes and drafting the necessary documents as a result of disputes, we have knowledge and expertise in all aspects of Construction Law and offer well informed advice to all our construction industry clients.