In March last year, the Government launched a consultation on “Caste in Great Britain and Equality Law” to obtain the views of the public on how best to ensure that appropriate and proportionate legal protection exists for victims of caste discrimination.

The consultation ran in total for six months, closing in September 2017.

The Government’s response to the consultation was published in July 2018.

Pam Sidhu of The Wilkes Partnership considers the key findings.

What is caste discrimination?

Caste systems are a form of social and economic governance based on principles and customary rules.  Caste systems involve the division of people into social groups (castes) where assignments of rights are determined by birth, are fixed and hereditary.  The assignment of basic rights among various castes is both unequal and hierarchical, with those at the top enjoying most rights coupled with least duties and those at the bottom performing most duties coupled with no rights.  The system is maintained through the rigid enforcement of social ostracism (a system of social and economic penalties) in case of any deviations.

Government response to consultation

The consultation considered different ways of protecting people from caste discrimination.

The first option was to implement a duty, which was introduced by Parliament in 2013, to make caste an aspect of race discrimination under the Equality Act 2010. The second was to rely on emerging case law which, in the view of Government, showed that a statutory remedy against caste discrimination was already available through existing provisions in the Equality Act, and to invite Parliament to repeal the duty on that basis.

The consultation received over 16,000 responses, showing the importance of this issue for many people in particular communities. About 53% of respondents wanted to rely on the existing statutory remedy and repeal the duty, 22% rejected both options (mainly because they wished the Government to remove the concept of caste in British law altogether) and about 18% of respondents wanted the duty to be implemented.

The Government said its primary concern was to ensure that legal protection against caste discrimination was ‘sufficient, appropriate and proportionate’.

It said thatafter careful consideration of all the points raised in the consultation, we have decided to invite Parliament to repeal the duty because it is now sufficiently clear that the Equality Act provides this protection’.

The Government referred to the judgment of the Employment Appeal Tribunal in Tirkey v Chandhok [2015] [ICR 527] to show that someone claiming caste discrimination can rely on the existing statutory remedy (of race discrimination) where they can show that their “caste” is related to their ethnic origin, which is itself an aspect of race discrimination in the Equality Act.

The judgment is binding on all who bring a claim in an employment tribunal, has status equivalent to a High Court decision, and is based on the application of case law decided at a higher level. The Government considered that the Tirkey judgment served as a ‘welcome clarification of the existing protection under the Equality Act – helping to deter those inclined to treat others unfairly or unequally because of conceptions of caste’.

It concluded that the decision made the introduction of additional statutory protection in the Equality Act unnecessary and stated that it intends to legislate to repeal the duty for a specific reference to caste as an aspect of race discrimination in the Equality Act in due course.

In doing so, the Government said that it recognised that this was an area of domestic law which may develop further, and would monitor emerging case law in the years ahead.

It went on to say that ‘In order to ensure that people know their rights and what sort of conduct could be unlawful under the Equality Act, we also intend to produce short guidance before the repeal legislation is introduced. We want this to be of particular use to any individual who feels they may have suffered discrimination on grounds of caste. It should also help employers, service providers and public authorities who are outside those groups most concerned with caste and who may have little awareness of caste divisions.’

Pam Sidhu comments “It is perhaps not surprising that that the Government has opted for a route that effectively preserves the status quo, especially given the small number of caste discrimination cases brought to date.  However, at first glance, the decision does appear to be a proportionate one in light of the availability of a potential remedy for claimants through existing case law.  We await sight of the Government’s guidance note with interest.”

For advice on any employment related matter please contact Pam Sidhu on 0121 710 5815 or  psidhu@wilkes.co.uk.  You can also reach any member of the Employment Team on 0121 233 4333.

It has been reported that the late Aretha Franklin has died intestate, that is without leaving a will.  With a reputed estate of US $60m it is almost inevitable that those in her family who do not inherit under the rules of intestacy will feel aggrieved and possibly challenge in the courts whatever provision, or lack of it, is made for them.

This could have been avoided if Ms Franklin had made a will setting out clearly how her estate should be divided.

Andrew Hasnip, Partner in the Private Client Department at Wilkes, comments:  “Taking a few hours to consider, take legal advice on and make a will seems a small thing to do compared to the time, trouble and expense that can follow dying without a will.  Making a will would have enabled Ms Franklin to choose who administers her estate, who inherits, in what proportion and when they inherit”.

By contrast, Oxford businessman Richard Cousins who tragically died with his fiance, his two sons and her daughter in a sea plane crash off Sydney, Australia on New Year’s Eve had made a will.  Under this the prospect of him dying without leaving family members or any other living beneficiary had been considered and resulted in £41m passing to the charity Oxfam.  In relation to this Andrew observes:  “Wills prepared for a couple with children should contemplate three scenarios: what happens when the first of the couple dies; what happens on the death of the survivor; and what happens if, as in the unfortunate case of Mr Cousins, what happens if all of the named beneficiaries  die”.

The Queen of Soul would have been wise to follow Mr Cousins’ lead rather than say a little prayer and hope for the best.

For help and advice about making a will please contact a member of the Private Client Team on 0121 233 4333 (City Centre / Birmingham) or 0121 733 8000 (Solihull/Shirley) or email ahasnip@wilkes.co.uk.

Wilkes are delighted to announce that Abi Evans and Jack Ackrill have taken up new roles as Assistant Solicitors, having successfully completed their training contracts.

Abi and Jack join Nicola Pitt as newly qualified Assistant Solicitors with Nicola having qualified in July.

Abi joins the Real Estate team whilst Jack has joined the Contentious Probate department at our city office. Nicola is also based in Birmingham within the Private Client team.

Kate Hackett Partner and Training Principal at Wilkes said;

“2018 has been a strong year for Wilkes and we are delighted to be able to offer Abi, Jack and Nicola NQ positions within the firm. We feel that we offer our trainees great hands-on experience which allows them to hit the ground running with their legal careers”.

Alongside welcoming our new NQ solicitors, Matthew Hartas, Douglas McEvoy, Sana Ikhlaq and Charlotte Lines have joined the firm as first year trainees.

To find out more about out becoming a trainee as Wilkes click here.

Katie Briggs, Assistant Solicitor in the Property Litigation team at The Wilkes Partnership provides her analysis on the role of an executor dealing with long leasehold properties and how to ensure matters are kept simple and straightforward.

Executors in distributing the estate on behalf of the deceased may need to deal with long leasehold properties which were owned by the tenant or rented out. As the terms of these leases shorten over time this affects the value when the leasehold property needs to be sold. In order for the executors to act in the best interests of the estate and realise the best value of the property, a request for a lease extension may often be necessary.

A residential tenant of a flat has the right to request a new lease under the Leasehold Reform, Housing and Urban Development Act 1993 often referred to as a lease extension. In order to do so the tenant must hold the property under a long lease, the property must be a flat in a qualifying building and the tenant must have been the legal owner for at least two years before requesting a new lease.

The process of a lease extension requires a formal notice to be served on the freeholder, however, executors are required to keep liabilities to the estate as low as possible and this process can be technical and expensive requiring specialist legal expertise. This is simply in order to achieve the best value for the leasehold property so it can then be sold.

This summer, however, the courts reviewed the legislation and in particular provisions for executors requesting a new long lease from the freeholder clarifying some important deadlines which will assist executors dealing with an estate.

The case was brought by the purchaser of the long lease against the freeholder. The executors had arranged and agreed the sale to the purchaser on the basis of the request for the new lease. This increased the value and assets of the estate. The freeholder refused to accept the purchaser’s right to request a new lease and the notice which had been served by the executors prior to the sale.

Prior to this case there had been an understanding that executors or personal representatives needed to request a new tenancy on behalf of the deceased who qualified within two years of the grant of probate or letters of administrations. This was believed to be a strict time limit for executors to follow under the legislation. Once requested the benefit of that notice would be assigned to a purchaser usually at the same time as completion.

In this particular case the deceased died in 2007 and the grant of probate was obtained in 2010. The leasehold property was only sold in April 2016 with the transfer registered with the Land Registry later in June 2016. The executors had served a notice on the freeholder to request a new lease prior to the transfer being registered but after the property had been sold. The notice had been served on the basis they had been a qualifying tenant for a two year period. As executors there is no automatic requirement to transfer the title of the property from the deceased to the executors prior to selling the property.

The freeholder disputed the notice served by the executors as it was more than 2 years after the Grant of Probate and had been served after the lease had been sold (albeit not yet registered with the Land Registry).

The county court found in favour of the freeholder that the notice should have been served within 2 years of the grant of probate. The court further indicated that if that had not been an issue the court would have decided the notice was valid. The executors serving the notice after sale but prior to registration did not invalidate the notice. As a result the purchaser of the lease appealed the decision and the freeholder appealed the second point made by the court.

The court confirmed on appeal that the intention of parliament for requiring notice to be served within 2 years of the grant of probate was an additional right to executors and did not limit the general right to request a lease extension once they themselves had held the lease for at least two years. This would apply to a scenario where the deceased was eligible to request a new lease but the executors themselves had not owned the property on trust for the minimum 2 year period. This then allows executors to serve the notice and sell the leasehold property earlier than the legislation would ordinarily allow.

This relieves the pressure placed upon executors so as to ensure that a notice does not need to be served on the freeholder requesting a new lease until a purchaser of the long leasehold flat has been secured. Subsequently that notice can be assigned to the purchaser who would deal with the new lease negotiations further limiting the need for an executor to take any further action for a lease extension or increase costs to the estate.

The court gave guidance to executors dealing with any long lease extensions which form part of an estate. For best practice a notice should be served on the freeholder prior to completing the sale of the leasehold. This would have avoided any further argument being raised by the freeholder that the notice was invalid. Although it should be noted that this was unsuccessful by the freeholder in any event.

This case of Villarosa v Ryan [2018] shows a sensible judgement and clear interpretation of parliament’s intention with the legislation. That is not to implement further obstacles for executors in dealing with estates but to assist them. Keeping the risk and liabilities to the estate at a minimum.

If you have any enquiries regarding an estate involving a long leasehold which will need to be sold and have a lease extended or any issue related to property litigation or contentious probate please get in touch with us at The Wilkes Partnership. We have specialist departments dealing with both areas of law who will be able to be to assist you in keeping matters straightforward and minimising any personal risks to the executors.

If you wish to discuss any aspect of Will drafting, interpretation issues or disputes/obligations of being an Executor, please get in touch with Katie Briggs on 0121 233 4333 or via email on kbriggs@wilkes.co.uk

A recent YouGov survey has indicated that the traditional working hours of 9-5 are becoming a thing of the past.

Sarah Begley of The Wilkes Partnership considers the key findings.

The survey of over 4000 participants showed that in fact just 6% of people in the UK worked such hours. The most popular hours of choice by full-time workers were 8am to 4pm (37%) with 7am to 3pm (21%) being the second most popular option.

Successful flexible working arrangements such as working from home, compressed hours or days and job sharing enables employees to meet their outside work commitments. However, interestingly, the survey found that having a degree of flexibility was important to working people of various ages and at different stages in their life and career. In other words, it is a misconception to conclude that this manner of working is only attractive to parents or carers.

It is 2018 and we work in an ever changing world where the demands on our time is seemingly 24/7. The ability to be able to work flexibly can lead to enhanced motivation and productivity in the workplace and ultimately, improve our health and wellbeing. This is great news for businesses too. Research suggests that increased employee morale, engagement, and commitment to their employer reduces absenteeism and increases business efficiency.

However, the uptake of flexible working is still low and it is important that employers and employees are aware of the law surrounding flexible working requests.

To be an eligible employee, you need to have completed 26 weeks of continuous employment. A request for flexible working must be in writing and specify that it is a flexible working request. The employee must explain the change being requested and propose a start date; identify the impact the change would have on the business and how that might be dealt with; and state whether there has been any previous flexible working requests.

The request (and any appeal) must be heard and a decision given within 3 months of receipt of the request and employees can only make one request in any 12 month period.

Businesses need to be mindful of additional rights under discrimination law some employees may have when making a flexible working request. For example, a request may be made on the basis of childcare commitments, religious or disability reasons. In such cases, it is  important to carefully consider any such request and have a justifiable business reason for refusal. A failure to do so could give rise to claims of (sex, race or disability) discrimination, irrespective of that employee’s length of service.

Sarah Begley comments “Flexible working requests are nothing new but it is surprising to learn that the uptake rates are still so low. This could be due to a lack of awareness on the part of employees of their legal rights in this regard and perhaps a misunderstanding that it is something only available to parents or carers. Likewise, businesses themselves may not advertise their roles as being ones which can be fulfilled using different working arrangements”.

For advice on flexible working or any employment related matter please contact Sarah Begley on 0121 733 4312 or sbegley@wilkes.co.uk

Whether it be Harper Lee’s classic To Kill a Mocking Bird, John Mortimer’s charismatic Rumpole of the Bailey or John Grisham’s The Firm, library shelves are full of novels about lawyers and legal cases. 

The Cactus by Sarah Haywood is a 2018 debut novel and tells the tale of the fallout between the heroine Susan and her brother Edward following their mother’s death.  The author was born in Birmingham, so there are plenty of local references, and practised as a lawyer before turning to creative writing.

This is no doubt the reason why the dispute about whether their mother knew what she was doing in making her Will is told with refreshing accuracy.

What is key to someone making a Will is the “Banks and Goodfellow” test, which dates back to 1870.  The testator, the person making the Will, must

  • Understand what a Will is and what it will do
  • Know in general terms what assets will be disposed of under the Will; and
  • Be aware of anyone who would have a potential claim if they were not included in the Will.

Also, the testator must not be suffering from any delusion of the mind.

A lawyer specialising in Will writing will be familiar with the relevant capacity test and will take steps when taking their client’s instructions to ensure that they have the necessary capacity, particularly if there are concerns about advanced age or illness.

For more help and guidance in relation to your Will  or personal circumstances please contact Sophie Fenn on 0121 733 8000 or email sfenn@wilkes.co.uk.

Wilkes are delighted to welcome Anton Fischer to the firm to join our team of European lawyers. Together with Nigel Wood and Elisabeth Conner Anton will be servicing our existing German client base.

Anton will be taking on the role of Rechtsanwalt – Attorney at Law (Austria) and is soon to qualify as a Registered European Lawyer and has extensive experience of acting on cross -border transactions.

Anton has been tasked with assisting our already strong presence within the German market alongside launching a new initiative focused on Austrian businesses. To date Anton has worked in the UK, Vienna, Brussels, Leiden and Singapore and specialises in delivering Corporate and Commercial expertise to a wide variety of clients across Europe.

Commenting on his appointment Anton said:

“As a leading independent UK law firm, The Wilkes Partnership offers its clients a high level of service in a hands on way. Being able to deliver a wide range of legal services immediately attracted me to the firm. I am excited to work with existing clients on their cross border matters and to open up our full range of expert services within Europe and beyond.”

Nigel Wood, Senior Partner at Wilkes added:

“We are delighted to have been able to bring Anton to Wilkes and are excited to strengthen our offering both in the UK and overseas. During the recruitment process Anton showed a real desire and drive to help the firm build on its reputation and we are excited to support him in his endeavours.”

Anton is a native German speaker and can be reached on 0121 710 5900 or via email at afischer@wilkes.co.uk.

With yet another UK High Street store on the brink of collapse; albeit rescued for now but with changes and implications continuing, Stuart Tym, Head of Planning at Wilkes takes a brief look at the changing face of the UK High Street.

11.2% of the UK’s retail units are now standing empty.  The nature of the new entries to business on the High Street and likewise those falling out of business are also very telling.  Barbers, beauty salons, cafes, tearooms, bars and restaurants see a resurgence with the more traditional offerings of pubs, banks, news agents, travel agents and clothing/ shoe stores falling by the way side.

To a degree this reflects the changing nature of the way we do our business and the function the High Street has in our lives.  We no longer need to visit a shop to buy a newspaper, book a holiday or bank when there is an app for that.  We no longer choose to buy our shoes and clothes in store when they are available for less online.

Is this simply a reflection of lower overheads or a question of changing habits and convenience?  It may be argued that the tax regime has changed the way we drink with punters concentrating on the experience, over the pint itself; hence the decline of the traditional pub and the coming into trend of more restaurants and bars. However, the fall of the town centre continues, and in this year alone around 3,800 stores are going to close. These most noticeable with a closure plan include Toys ‘R’ Us and Marks and Spencer’s.

The High Street and/or the Town Centre is an important space in planning terms and alongside the obvious retail uses is a space which demonstrates the affluence and/or vitality of a town but which also, when gotten wrong, can bring a town to its knees very quickly.

In assessing the direction of travel it is interesting to look to the new NPPF.  I have expressed the view elsewhere that the changes made in the NPPF are subtle around the edges rather than wholesale.  Para.86 & 87 reflect what was para 24 in the 2012 NPPF and are shown below with the notable addition in bold: –

p.86 Local planning authorities should apply a sequential test to planning applications for main town centre uses which are neither in an existing centre nor in accordance with an up-to-date plan. Main town centre uses should be located in town centres, then in edge of centre locations; and only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered.

p.87 When considering edge of centre and out of centre proposals, preference should be given to accessible sites which are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale, so that opportunities to utilise suitable town centre or edge of centre sites are fully explored.

The observant amongst us will recognise this as a flashback to the old Planning Policy Statement 4:Planning for Sustainable Economic Growth at EC5.2 defining a reasonable period as the “the Plan period” and at EC5.2 (c) a sites likelihood of forming links with the centre boosting it back up.

It is also quite telling to compare the bullet point list of priorities that were at para 23 (#NPPF1) and now appear at para 85 (#NPPF2).  Notable is the omission to the various references to competition in the old version and the express inclusion of housing within the suitable mix of uses.  The below, selectively draws out the additions in bold and the omissions by way of strikethrough.

Planning policies and decisions should support the role that town centres play at the heart of local communities, by taking a positive approach, promote competitive town centre environments , to their growth, management and adaptation. Planning policies should:

1. Define a network and hierarchy of town centres and promote their long-term vitality and viability – by allowing them to grow and diversify in a way that can respond to rapid changes in the retail and leisure industries, allows a suitable mix of uses (including housing) and reflects their distinctive characters;

2. Define the extent of town centres and primary shopping areas, and make clear the range of uses permitted in such locations, as part of a positive strategy for the future of each centre;

Promote competitive town centres that provide customer choice and a diverse retail offer and which reflect the individuality of town centres;

3. Retain and enhance existing markets and, where appropriate, re-introduce or create new ones, ensuring that markets remain attractive and competitive;

4. Allocate a range of suitable sites in town centres to meet the scale and type of development likely to be needed, looking at least ten years ahead. Meeting anticipated needs for retail, leisure, office and other main town centre uses over this period should not be compromised by limited site availability, so town centre boundaries should be kept under review where necessary;

5. Where suitable and viable town centre sites are not available for main town centre uses, allocate appropriate edge of centre sites for main town centre uses that are well connected to the town centre. If sufficient edge of centre sites cannot be identified, policies should explain how identified needs can be met in other accessible locations that are well connected to the town centre; and

6. Recognise that residential development often plays an important role in ensuring the vitality of centres and encourage residential development on appropriate sites. 

Suffice to say the future is an interesting challenge for retail and our town centres.  Those that diversify to become enjoyable spaces to be rather than simply shopping destinations seem more likely respond to the new NPPF’s message and surviving.  The town centre is now a retail and leisure industry and that mix includes providing a space where people want to live as well as simply shop.

Stuart can be reached on  0121 710 5891 or via email at stym@wilkes.co.ukYou can also get all of the latest planning news straight to your inbox by signing up here.

Two members of the The Wilkes Private Client Team – Lucy Cox, and Sophie Fenn have recently completed the STEP course with a third, Jodi Flint, soon set to complete her final exam as part of our drive for continual staff development.

Lucy and Sophie join Ellie Holland, Managing Partner at Wilkes, who gained her accreditation in 2008, as specialist STEP qualified solicitors within the team.

STEP is the global professional association for practitioners who specialise in family inheritance and succession planning. STEP members help families plan for their futures, from drafting a will to advising on issues concerning international families, protection of the vulnerable, family businesses and philanthropic giving.

Lucy and Sophie were two of the highest performing students in the latest round of STEP graduates and were invited to sit at the top table at the Birmingham STEP annual dinner this summer.

Nigel Wood, Senior Partner at The Wilkes Partnership, says: “Giving our solicitors the opportunity to develop their skills is not only important for our firm and its clients, but for their futures. We have always dedicated investment in our people to help them fulfil their potential and deliver excellence to our clients”.

Lucy Cox, solicitor at The Wilkes Partnership said, “From the moment that we started at Wilkes we were encouraged to enrol on this course and to develop our skillset. Now that it has been completed, I feel that I have greater knowledge and confidence to provide expert advice to clients.

For more information about how we can help you with inheritance and succession planning please call 0121 733 8000 or email eholland@wilkes.co.uk.

Stuart Tym, Head of Planning at Wilkes examines the government’s recent revision of the National Planning Policy Framework (“NPPF2”) which incorporates the 18 Jun 2015 WMS ( Written Ministerial Statement)  in respect of community concerns. 

The WMS has incorporated the WMS as follows: –

“When determining planning applications for wind energy development involving one or more wind turbines, local planning authorities should only grant planning permission if:

the development site is in an area identified as suitable for wind energy development in a local or neighbourhood plan; and

following consultation, it can be demonstrated that the planning impacts identified by affected local communities have been fully addressed and therefore the proposal has their backing.”

Planning applications proposing wind energy development that include one or more turbines, will “not be considered acceptable” where it is not in an area noted to be suitable by the development plan. The NPPF also states that the proposal must also have undergone consultation and it must be shown that the proposal has the backing of the local community.

The WMS is brought forward with a notable addition, following the trend of NPPF1, in a footnote!  FN49 adds in that these negative /protective policies do not apply to the repowering of existing wind turbines, and therefore, there is clear incentive to revive such wind turbines in order to start using them again as a source of renewable energy.

From an evidential perspective it is hoped that problems and benefits (the balancing act) could be more clearly evidenced in a repowering scenario than a new green site scenario.

Stuart comments that “This change is being celebrated by those campaigning against climate change, and it is important for us to understand why”.

Although, still dependent on the securing of funding, and whether individual developers will choose to carry out such repowering, there are financial barriers that must be overcome by wind farm developers, however, it would appear that renewable energy is being refocused once again.

Stuart has a strong background of acting on renewable energy applications having most recently acted on opposing a planned windfarm in the Lincolnshire area.

If you would like assistance in relation to planning law or renewable and/or alternative energy please contact Stuart Tym at The Wilkes Partnership on 0121 710 5891 or stym@wilkes.co.uk.