Legal Q&A

The Mental Capacity Act 2005 ( MCA 2005) The MCA 2005 established a new assessment of mental capacity, which should generally serve as the primary point of reference when determining a person’s capacity. It consolidates the common law and does not explicitly overturn it......

Where an individual holds British citizenship as well as citizenship of an EU Member State and is arriving in the UK, the passport that should be used for entry is their British passport. This serves to confirm that they possess the right of abode in the UK in their capacity as a British national. See Q& A: What is the law that governs the entry of British citizens to the UK and in particular, what documentation they must provide to an immigration officer as evidence of their nationality? Comparable considerations are likely to arise for their admission to the EU Member State of which they are a national, subject to the domestic law of that state......

A disabled person’s trust A disabled person’s trust benefits from distinctive inheritance tax ( IHT) treatment. To access this favourable regime, certain qualifying requirements must be satisfied. Specifically, the trust must be one of the forms authorised by section 89 of the Inheritance Tax Act 1984 ( IHTA 1984), taking account of subsequent amendments to IHTA 1984, and there must be a qualifying disabled beneficiary. For IHTA 1984 purposes, the criteria a beneficiary must satisfy to be treated as a disabled person are set out in IHTA 1984, s 89(4A), together with Schedule 1A to the Finance Act 2005 ( FA 2005), which prescribe the relevant tests and definitions......

As outlined in Practice Note: Intestacy—summary and Entitlement on intestacy—flowchart, the order of entitlement on intestacy is set out within section 46 of the Administration of Estates Act 1925 ( AEA 1925)......

HSC( CHS) A 2003, Part 3 For personal injury compensation claims where the incident occurred on or after 29 January 2007, Part 3 of the Health and Social Care ( Community Health and Standards) Act 2003 ( HSC( CHS) A 2003) applies. The HSC( CHS) A 2003 extends to any matter involving foreign nationals and foreign compensators, in circumstances where NHS treatment and/or ambulance services were delivered to the injured person following their return to England, Scotland or Wales. Part 3 of the HSC( CHS) A 2003 permits recovery of the costs of treating an injured person in all situations where that individual has successfully pursued a personal injury claim against a third party. Under HSC( CHS) A 2003, s 150(3), a ‘compensation payment’ is a payment, including one in money’s worth, made on behalf of a person who is, or is alleged to be,...

A pension sharing order A pension sharing order enables one party to obtain, in their own name and in their own right, benefits directly debited from the other party’s pension scheme, and secures a clean break between the parties regarding pensions. Sections 11 and 12 of the Welfare Reform and Pensions Act 1999 ( WRPA 1999) state that pension rights under approved pension schemes do not vest in a trustee in bankruptcy, provided the bankruptcy petition was presented on or after 29 May 2000 under the legislation. Consequently, if the individual holding the pension to be shared is made bankrupt, the court’s authority to make a pension sharing order should remain unaffected in law......

Court fees in civil proceedings We direct you to our Lexis+® UK Dispute Resolution Practice Note: Court fees in civil proceedings, which sets out details of court fees payable for all aspects of civil proceedings......

Statutory holiday entitlement Under the Working Time Regulations 1998 ( WTR 1998), SI 1998/1833, workers have a right to 5.6 weeks’ paid annual leave, comprising: a core statutory entitlement of four weeks’ annual leave each leave year, giving effect to Directive 2003/88/ EC, the Working Time Directive ( WTD) an extra entitlement of 1.6 weeks’ statutory annual leave each leave year Under WTR 1998, SI 1998/1833, reg 16, a week’s pay must be determined in line with sections 221, 222, 223 and 224 of the Employment Rights Act 1996 ( ERA 1996), subject to the modifications set out in WTR 1998, SI 1998/1833, reg 16(3). For further information, see Practice Notes: Holiday and Holiday pay......

Q& A This Q& A proceeds on the basis that the partnership is a general partnership. Partners are strongly encouraged to put a written partnership agreement in place to prevent any unsuitable default rules under the Partnership Act 1890 from automatically applying instead......

When a landlord grants an assured shorthold tenancy ( AST) to a tenant at the end of a prior AST for the same property and same parties, it constitutes a replacement tenancy......

In responding to this Q& A, the following assumptions are made: the land is not a residential property the land is registered the period of possession occurred after October 2013 and the 'new rules' apply to it Definitions used for clarity: the owner is 'the registered proprietor' the third party is 'the squatter' For a squatter to pursue an adverse possession claim against the registered proprietor, the squatter must demonstrate, for the requisite period of ten years, that both of the following are satisfied: the claimant enjoyed uninterrupted factual possession of the land for that period ('factual possession'); and the claimant intended to possess the land throughout that period ('intention to possess') These elements must be established across the whole of that period. Factual Possession To establish factual possession, the squatter must have exercised a sufficient degree of exclusive physical control over the land. What amounts to sufficiency is...

This query addresses what is required for a notice to quit to be effective. In general, such notices are controlled by common law principles that have developed over time. There are, however, situations in which service is not permitted (for instance, where a residential tenancy benefits from the Housing Act 1985 ( HA 1985) or the Housing Act 1988 ( HA 1988)) and circumstances where a particular format is mandated (for example, where a business tenancy enjoys the protection of the Landlord and Tenant Act 1954 ( LTA 1954), the giving of a notice under LTA 1954, s 25 being comparable to a notice to quit, albeit with significant distinctions in important respects when compared)......

The organisation must ensure it fully complies with the TPS Assured ( Call Centre) Handbook 2016, which specifies that a call centre must disclose its own organisation’s identity whenever requested by a recipient. Regulation 24 of the Privacy and Electronic Communications Regulations 2003 ( SI 2003/2426) provides the following below: 24 Information to be provided for the purposes of regulations 19, 20 and 21 (1) Where a public electronic communications service is used to transmit a communication for direct marketing, the person using, or causing the use of, that service shall make sure the following information is supplied with that communication— in relation to a communication to which regulations 19 (automated calling systems) and 20 (facsimile machines) apply, the particulars mentioned in paragraph (2)(a) and (b); in relation to a communication to which regulation 21 (telephone calls) applies, the particulars mentioned in...

Service of a notice under section 21 of the Housing Act 1988 ( HA 1988) Serving a section 21 notice under the Housing Act 1988 ( HA 1988) provides landlords with one route to recover possession of an assured shorthold tenancy ( AST). Under HA 1988, s 21(8), the Secretary of State is empowered to set a prescribed section 21 notice form for dwellings in England. That enabling power arrived via the Deregulation Act 2015 and was then implemented through the Assured Shorthold Tenancy Notices and Prescribed Requirements ( England) Regulations 2015 ( Prescribed Requirement Regs 2015), SI 2015/1646, reg 4. Those regulations amended the Assured Tenancies and Agricultural Occupancies ( Forms) ( England) Regulations 2015, SI 2015/620. It is a prescribed form for England only......

Enforcement of tenant’s obligations regarding repair Throughout the lease term, a landlord generally has four avenues to enforce the tenant’s duties concerning the fabric of the demised premises: where a right of re-entry exists, by exercising forfeiture to terminate the lease where empowered by the lease or by statute, by undertaking the necessary repairs himself and recovering the expenditure from the tenant (eg under a Jervis v Harris clause) in rare cases, by obtaining from the court an order compelling specific performance of the tenant’s repairing obligations by pursuing a claim for damages for losses flowing from breach These mechanisms relate specifically to the state and condition of the demised premises. Once the term has ended, the landlord’s sole remedy is damages. For further detail, see Landlord’s remedies for breaches of covenant by tenants concerning the fabric of the demised premises: Hill and Redman’s Law of Landlord and Tenant...

Interim possession order ( IPO) An interim possession order ( IPO) is a remedy that can be sought solely in relation to trespassers, and non-compliance—by not vacating the premises within 24 hours—constitutes a criminal offence ( Criminal Justice and Public Order Act 1994, s 76). This extends to anyone who departs and then returns ( CJPOA 1994, s 76(4)). Procedural requirements for applications are set out in CPR 55.21–28......

Where documents are deeds, they must expressly state they are executed by the company itself. A document will be treated as executed as a deed if it is properly executed by the company and delivered as such......

The higher rates of stamp duty land tax ( SDLT) These enhanced rates apply where an individual acquires a major interest in a single dwelling and, by the close of the purchase day, conditions A to D are satisfied: Condition A — the transaction’s chargeable consideration is £40,000 or more; Condition B — on the date of purchase, the dwelling is not held under a lease with more than 21 years left to run; Condition C — the purchaser already holds a major interest in another dwelling with a market value of £40,000 or above, which is also not subject to a lease exceeding 21 years......

Termination payments qualifying for £30,000 exemption As set out in Practice Note: Termination payments qualifying for £30,000 exemption, where a compensation payment for loss of office or employment is made in circumstances where it does not fall to be taxed as: earnings within section 62 of the Income Tax ( Earnings and Pensions) Act 2003 ( ITEPA 2003) (see Practice Note: Termination payments taxed as earnings) benefits-in-kind (see Practice Note: How employment income is taxed—non-cash earnings or benefits) benefits from an employer-financed retirement benefits scheme employment-related securities (see: Employment-related securities—overview) disguised remuneration, where termination payments or benefits are provided by a third party (such as an employee benefit trust) rather than the employer (see: Disguised remuneration and EBTs—overview) restrictive undertakings (see Practice Note: Taxation of payments for restrictive covenants or undertakings) and for terminations for loss of office since 6 April 2018......

The Finance Act 2004 ( FA 2004) sets conditions for pensions and lump sums to be authorised payments. Under FA 2004, a member’s pension from a registered pension scheme must not begin before they reach the normal minimum pension age, unless the ill-health condition is met. In the same way, most lump sums are not payable before that age. The normal minimum pension age was 50 when FA 2004 took effect on 6 April 2006, rose to 55 from 6 April 2010, and will increase to 57 from 6 April 2028, excluding uniformed services pension schemes (army, navy, air force, police and firefighters). Transitional provisions preserve members’ subsisting rights to draw scheme benefits before age 55; this is referred to as a protection pension age. The Pensions Tax Manual confirms that, to hold a protected pension age, the member must have an...