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In times of economic hardship, one area where few of us will take risks is in the myriad types of insurance we all have, and for understandable reasons. Insurance in many areas is either compulsory or highly advisable.

However, many of us have also had problems in being able to rely on insurance, with insurers seeking to rely on contract clauses which are either unclear or blatantly unfair. The biggest problem of all is that, if facing a dispute with insurers, this is a classic David vs Goliath situation and many individuals or businesses simply give up or give in.

The above are the obvious ways in which insurers may not always play fair, but there are unfortunately others as well.

Another example relates to fraud. There is very significant and hard evidence of  major fraud in car accident personal injury claims over the last decade. So much so that there are postcodes in the UK with ridiculously high incidences of minor accidents and whiplash claims. the insurers have known about these areas for some time and yet have done little, in conjunction with the police to sort the problem out. Instead, they have taken the line of least resistance. Car insurance is of course compulsory – so their response has simply been to raise premiums for all drivers, which is frankly outrageous.

another scandal has been the misselling of unecessary insuarnce products such as Payment Protection Insurance and only yesterday, it came to light that vulnerable old people were being sold policies to cover care home costs by a subsidiary of HSBC which were inappropriate for their circumstances.

Other than a generalised moan against insurance companies, this post was prompted by a US story we came across today, which makes interesting reading. Here is the link to the story, which in essence shows that insurers are quick to access death records so as to stop paying benefits but slow in advising beneficiaries of rights to pay outs where policies provide for this.

What do you think of this issue – have you had bad experiences with insurance ?

Finally, not all insurers operate in the above ways, there are of course good and bad, but the general principles about the power of insurance companies nonetheless apply.

There are many uses for lawyers, but some may come as a surprise.

Take, for example the war in Iraq and the burgeoning hacking scandal. what do they both have in common ? Well, powerful people who have money often havea 6th sense (or perhaps they know full well) that certain issues may come back to haunt them. They know that when this happens they need a “get out of jail” card (sometimes almost literally), and what is one of the best get out of jail cards…. confirmation from solicitors that they believe there has been no wrongdoing.

Most of us will be familiar with the numerous facile Iraq enquiries which seem to go nowhere, waste money and simply act to placate continuing protest. Anyone who watched or read about the latest enquiry will have heard ad nauseum, those criticised for going to war on false pretences stating that “we had advice it was legal from the Attorney General” or words to that effect. This is the ultimate in saying “it wasn’t me it was him”. Sounds like the school playground doesn’t it …? (by the way many successful business people learn a lot of skills in the playground).

This game of pass the parcel can continue with solicitors insisting that a barrister’s opinion be obtained and so on and so forth.

In the latest manifestation of this backside covering, those at the top of the News of the World/News International hierarchy are claiming that what looks like cogent evidence of widespread hacking some 4 years ago was not passed on to the police because they had top city lawyers advice that documents didn’t show widespread hacking. Cynics among you might ask why they felt the need to seek lawyers to confirm this… were the lawyers truly independent or were they a firm used regularly by News International which would mean the firm was in an awkward position with clearly a big and important client…. ?

The questions continue… who knows what the answers are at the moment, but one thing seems clear, we are in for the “it’s not me it’s him, her, them, it” merry-go-round !

Enduring Power of Attorney and Lasting Powers of Attorney

Those whose mental faculties are failing require help in the management of their affairs from someone who they can trust and is willing to take responsibility for managing that person’s legal, financial and health interests

Until 2007 the authority for managing the affairs of someone whose mental faculties were failing was granted by an Enduring Power of Attorney. The Mental Capacity Act 2005 enabled people to entrust the management of their finances and assets to another in the event that they should become unable to do so themselves,  as well as health and welfare decisions, through a Lasting Power of Attorney (LPA). which replaced Enduring Powers of Attorney (EPAs) in 2007, when the Mental Capacity Act came into force.

Enduring Power of Attorney

Prior to October 2007, it was possible to grant an EPA to a trusted person to manage their finances.  Should they become incapable of doing so.

It is important to know that EPA’s remain effective whether or not they have been registered at the Court of Protection, provided that both the donor (the person granting the power of attorney) of the Power and the attorney/s (the person or person accepting the grant) signed the document prior to 1 October 2007.

Registration

An EPA may be used, with the consent of the Donor, whilst the Donor still has mental capacity,. Attorneys must register the EPA with the Office of the Public Guardian (OPG)… If the Donor appears to be losing the mental capacity to manage his or her finances, Once application for registration has been made attorneys may use their Donor’s resources to buy basic items such as paying for food or payment of regular bills. They may carry out more substantial transactions, such as the sale of a house until the EPA has been registered.

Lasting Powers of Attorney (LPA’s)

LPA’s replaced EPA’s in October 2007

There are two forms of Lasting Power of attorney

Property and affairs LPA

A property and affairs LPA enables a Donor to entrust someone (the attorney) to make decisions in relation to the Donor’s property and affairs when the Donor no longer has the mental ability to take such decisions himself. This could involve paying bills, collecting income and benefits or even selling your house. It can only be used when it has been registered at the Office of the Public Guardian (OPG).

Personal welfare LPA

A Personal Welfare Order permits an attorney to make decisions on behalf of the Donor concerning personal welfare or circumstances such as residency. It can authorize the attorney to give or refuse consent to medical treatment but only where that power is expressly given in the LPA. A personal welfare LPA can only be used when it has been registered at the OPG and the Donor has become mentally incapable of making decisions about his own welfare.

Who can make an LPA?

Anyone aged 18 or over with the capacity to do so can make an LPA appointing one or more attorneys to make decisions on their behalf.

Who can act as attorney?

anyone  over 18 and not bankrupt when they the form is signed. More than one person may act. Attorneys may be replaced whilst the Donor has mental capacity If more than one person is appointed the Donor may choose whether they should act together or independently.

Your attorneys must follow the principles set out in the Mental Capacity Act sets out the principles which govern the conduct of Attorneys when they are making decisions or acting on the Donor’s behalf. Attorneys must always act in the best interest of the donor. To the extent that the Donor is capable of so doing, attorneys should take all practical and appropriate steps to help the donor make a particular decision.

How to make an LPA

There are different forms for making a property and affairs LPA and a personal welfare LPA. Forms and explanatory leaflets can be obtained from the OPG.

Before the LPA can become valid a certificate of capacity drawn up by an independent third party called a Certificate Provider is required. The Certificate Provider could be a solicitor doctor or any independent person you have known for at least two years. Relatives of your attorney cannot be a Certificate Provider. The prescribed form must be completed and signed in the presence of a witness. Each attorney must also sign to confirm they have read the explanatory information and understand the duties they are undertaking.

Donors should list a person or persons to be notified of any application to register the LPA. If none are listed then an additional certificate of capacity must be provided.

The form must be registered with the OPG before it being used. There is a fee for registering each LPA, In certain circumstances you may be able to avoid the registration fees. The OPG will advise

Do I need a solicitor?

You do not but an LPA is an  important document, the forms are lengthy and quite complicated so Donors may be wise to seek guidance from a solicitor familiar with the process .

Top law firm liable for sex discrimination against male solicitor

In an interesting recently reported employment tribunal claim, Eversheds, a well known and highly regarded law firm was found to have sexually discriminated against a male employee solicitor in relation to selection for redundancy. The case highlights that employers need to be proportionate in terms of making special provision for pregnant staff or those on maternity leave.

The Employment Appeal Tribunal found that Eversheds had artificially improved the female member of staffs appraisal scores when selecting for redundancies because the firm was more worried about a sex discrimination claim from her than from the male employee.

As this unusual case (both in terms of the defendants being a highly regarded law firm and the claim of discrimination by a man) shows, discrimination can work both ways, and lawyers do not always get it right when dealing with their own legal matters !

If you believe you have been subjected to any form of employment discrimination, whether sex discrimination, race discrimination, age discrimination or religious discrimination, taking legal advice is an important first step.

Party Walls

Many homes and gardens will share certain elements of the property with their neighbours. Whether it be a small stretch of fence, an interior wall or the floors of an upper floor flat, there are many situations where you may be responsible for a party wall and have to abide by the laws surrounding it.

Since 1997, the Party Wall Act 1996 has given a legal enforcement to homeowners’ rights and responsibilities in regard to walls and other borders they share with their neighbours. In legal terms, a party wall is defined as one of the following: a wall forming part of one building, but which is on the boundary of another property; a garden wall which sits astride the property’s boundary line; a wall which is common to two properties (such as between two semi detached or terraced houses; floors and ceilings of flats.

The Party Wall Act prohibits either party from undertaking certain types of work without the permission of the other. It does not replace the need for planning permission for certain types of work and neither does planning permission replace the need to get the other party’s permission. Some work can be done without permission of the other party, for instance rewiring, plastering and decorating or putting up shelves.

The type of work that does require permission includes changes to the wall itself, including demolition, rebuilding or changes in height or thickness, excavations within 3m of a neighbouring building, damp proof course work, underpinning and cutting into the party wall to insert load bearing beams. In general, any work which may have an effect on neighbouring properties or on the structure or support function of the party wall must be notified, but if you are unsure then seek advice from a Building Control Officer or an architect.

If it transpires that the work you are planning does fall under the Party wall Act, then you must issue a notice with all the details of the proposed work to all affected neighbours. This notice must give the date you plan to start the work from and you need to await written permission from all affected neighbours at least two months before you plan to start the project. In the event that a neighbour has not responded within 14 days then it will be assumed that there is a dispute, but work must not start until written permission has been obtained from all parties.

If a dispute arises because an agreement cannot be reached with the neighbour, then you will need to appoint a surveyor to make the decision for you. He or she will be able to take a professional and impartial view of the situation and will be able to recommend the work you are planning, or to make amendments to the plans. The surveyor will make an award either in favour of the plans to go ahead, or to reject them.

It is important to remember than once a surveyor has been appointed a under the Party Wall Act, they have a legal duty to behave in an impartial manner. Even if it was you who appointed them, they cannot and will not act in your interests and will only view the situation in terms of what they think is reasonable for the property. Once a surveyor has been appointed they cannot be changed and their decision is final, although an appeal to the County Court can be made within 14 days of the surveyor issuing his award.

Normally it is the person who is seeking the neighbour’s permission for works who pays the fees of the surveyor. Fees can soon mount up, as the average cost for a surveyor in London is in the region of £120 per hour. In some cases the adjoining neighbour may want to appoint his own surveyor, for which London companies charge a flat fee of around £700 – £1300, but which the adjoining neighbour will have to pay himself.

Once the award has been made, the project can commence, but do make sure you have the award in hand as there can be delays, often involving the payment of surveyor’s fees, which can delay the paperwork and put you in breach of the law.

If you are the adjoining neighbour and feel that your neighbour has undertaken some work that is in breach of the Party Wall Act, it is highly recommended that you seek legal advice at the earliest possible stage to ensure you do not incur unnecessary costs during the course of your dispute.

Neighbour Disputes

Everyone looks forward to peace and quiet in their home, so disputes with neighbours can be very unpleasant. Neighbour disputes are wide and varied, but often the dispute escalates after the aggrieved party does not want to confront their neighbour with concerns.

It is sometimes necessary for a property owner to enter the neighbours property to carry out repairs on their own premises. The title deeds to the property may allow a legal right of access onto neighbouring land for a specific purpose. If there is no such clause in the title deeds, the owner may apply to the County Court for an access order to enter neighbouring land to carry out essential repairs. There is a fee for this application.

Especially in the case of flats, some amenities such as drains, pipes and driveways need to be shared. The title deeds will normally show who is responsible for the maintenance of these amenities. If the deeds are silent, it will be beneficial for the parties to split the costs between them.

Boundary disputes are the most common form of upset between neighbours. One party may feel that a fence or wall has been put up by their neighbour and it is encroaching on their land. The title deeds should be clear as to the precise area of the boundaries, but if the deeds are unclear, a chartered surveyor should be able to pinpoint the precise boundaries. Boundaries can, however, change through agreement or encroachment. If a fence has been positioned incorrectly for 20 years and no party has complained, the party who has benefited from the extra piece of land will now legally own it. If boundaries have changed, legal advice should be sought.

If a wall or fence is owned by one party, the neighbour has no rights over it. This means that the neighbour could not use the fence to support trailing plants. If a fence is jointly owned, both neighbours can use it so long as it has not been made unsafe. Repairs to the fence should then be financed jointly. There is no obligation for a fence to be repaired unless it is stated in the title deeds or lease. Be aware however, that if a third party is injured as a result of the damage, the owners may be sued. A fence which faces the street should be maintained to prevent nuisance to passers-by. Planning permission for a wall or fence is not necessary unless over 1 metre high next to the highway and over 2 metres anywhere else, whilst there are no restrictions on the height of hedges.

Another common complaint by neighbours is that of noise, especially when there are children around. This is worse in the summer when windows are open and more time is spent in the garden, but a quiet chat with the neighbour should resolve any issues. If the child causes damage to neighbouring property, the child itself may be sued or the parents sued for not having adequate control.

If a neighbour has a television or radio on too loud, just ask them if they would turn the sound down. It is advisable to keep a diary in order to record disturbances along with any evidence. An Environmental Health Office can investigate noise nuisance and will measure the noise and give their opinion. Usually an abatement notice is issued requesting that the noise levels are reduced, but in extreme circumstances, the Local Authority has the power to seize the noise making equipment. In respect of noise, speakers should not be used in the street between the hours of 9pm and 8am. Car alarms also tend to annoy neighbours and the Local Authority do have powers in respect of disabling the alarms.

Parking is a big issue for neighbours. There is not an automatic right to park on the road directly outside your house. It is a public road and therefore any roadworthy vehicle is entitled to park there. People do however have a right of access to their drive. If there is a shared drive, all parties have access. The access should not be blocked. The Local Authority and the Police have power to remove vehicles that are parked illegally, are causing an obstruction or have been abandoned.

Some neighbour disputes are very serious, sometimes including racially motivated attacks. The abuse may be verbal or graffiti written on the walls. The Police would be called to deal with matters including breach of the peace, assault or harassment.

Disputes between neighbours are unpleasant and can often be resolved through communication either verbal or in writing. In most instances, the parties need to be prepared to compromise. The Citizens Advice Bureau will be able to offer appropriate advice and assistance and mediators may also be able to offer assistance and break the ice.

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