tag:blogger.com,1999:blog-21614875766300889092024-03-14T18:48:52.568+00:00Govan Law CentreIndependent, community controlled, law centre in ScotlandGovan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.comBlogger431125tag:blogger.com,1999:blog-2161487576630088909.post-55810219270295793462019-05-01T17:33:00.002+01:002019-05-01T17:48:23.795+01:00GLC statement on the reclaiming motion appeal in Ali v. Serco Ltd and others <a href="https://3.bp.blogspot.com/-_gyGHBb7_4c/XMnIka1N1qI/AAAAAAAAB64/SYnkClCm5rkP07f-bNwgC0ihI55p54rZgCLcBGAs/s1600/Screen%2BShot%2B2019-05-01%2Bat%2B17.25.12.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="457" data-original-width="656" height="139" src="https://3.bp.blogspot.com/-_gyGHBb7_4c/XMnIka1N1qI/AAAAAAAAB64/SYnkClCm5rkP07f-bNwgC0ihI55p54rZgCLcBGAs/s200/Screen%2BShot%2B2019-05-01%2Bat%2B17.25.12.png" width="200" /></a>Govan Law Centre (GLC) has been instructed by Mrs Shakar Omar Ali, a Kurdish Iraqi national, to pursue a reclaiming motion (appeal) before the Inner House of the Court of Session, Scotland’s supreme civil court.<span style="-webkit-text-stroke-width: initial; font-size: 12px;"> </span><span style="-webkit-text-stroke-width: initial; font-size: 12px;"> </span>Reclaiming prints and a reclaiming motion to appeal the Opinion of Lord Tyre, handed down on 12 April 2019, will be lodged at the Court of Session tomorrow, Thursday, 2 May 2019.<br />
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<span style="font-family: inherit;"><span style="-webkit-font-kerning: none;">GLC’s Mike Dailly, Solicitor Advocate said: </span><span style="-webkit-text-stroke-width: initial;">“With the decision of the Outer House judge being subject to live appeal proceedings GLC would trust that Serco Ltd will continue their previous undertaking not to undertake lock-change evictions in Glasgow pending the appeal.</span><span style="-webkit-text-stroke-width: initial;"> </span><span style="-webkit-text-stroke-width: initial;"> </span><span style="-webkit-text-stroke-width: initial;"> </span><span style="-webkit-text-stroke-width: initial;">The failure to do so would occasion the unnecessary legal expense of raising multiple</span><span style="-webkit-text-stroke-width: initial;"> </span><i style="-webkit-text-stroke-width: initial;">interim</i><span style="-webkit-text-stroke-width: initial;"> </span><span style="-webkit-text-stroke-width: initial;">interdict actions at Glasgow Sheriff Court pending the outcome of the appeal to Scotland’s supreme civil court”. </span></span><br />
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<span style="-webkit-font-kerning: none; font-family: inherit;">“GLC believes our client has reasonably good prospects and grounds of appeal. We were delighted that Lord Tyre held Serco was a public body for the purpose of the Human Rights Act 1998 - something that both Serco and the Home Office had strongly resisted at the debate in February this year. Our understanding is that jurisprudence from the European Court of Human Rights - which has been followed in appellate courts in the UK - requires the interference with our client’s human rights by a lock-change eviction to be compatible with the rule of law, and not just her article 8 right to respect for her home and family life”.</span><br />
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<span style="-webkit-font-kerning: none; font-family: inherit;">“That requires UK or Scots law to be sufficient precise and foreseeable in its effect, and the safeguards suggested by the Outer House judge in our client’s case require numerous administrative hurdles to be overcome, none of which directly stop a lock change eviction. With the greatest of respect, we can see no precise or foreseeable adequate safeguards for asylum seekers by making section 4 applications to the Home Office, or thereafter appealing refusals of further support to the First Tier Immigration Tribunal”.</span><br />
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<span style="-webkit-font-kerning: none; font-family: inherit;">“An appeal to the First Tier Tribunal does not stop or prevent an eviction – there is nothing in the Tribunal rules to empower the Tribunal to put a lock change eviction on hold pending an appeal. Further, the court in our client’s case relied upon the English UK Supreme Court decision of <i>R(N) V. Lewisham Borough Council</i> [2015] A.C. 1259. This concerned people who had a day to day licence to stay in accommodation overnight. Because of the very temporary nature of their occupation the UK Supreme Court held they did not live in a dwelling - as their residence was too transient and short. Such transient occupiers also had numerous rights of appeal to prevent an eviction”. </span><br />
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<span style="-webkit-font-kerning: none; font-family: inherit;">“Our client has lived in her home for over a year and a half. In these circumstances such occupiers are entitled to be taken to court before eviction – and can then defend those proceedings – there is a significant body of UK Supreme Court and European Court of Human Rights case law that confirm occupiers of dwelling have this right. Ultimately, both Serco and the Home Office placed considerable reliance on their “<i>goodwill</i>” not to undertake a lock change eviction on 7 days notice - despite there being no legal rules underpinning such goodwill, and the fact that the rule of law is concerned with precise legal rights, and not goodwill or speculation”. </span>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-4501492776582342082019-04-24T08:37:00.003+01:002019-04-24T09:06:41.505+01:00Don't throw your cash away to a quick home buy company: GLC calls for greater public awareness raising in Scotland<div class="MsoNormal" style="margin: 0cm 0cm 0.0001pt;">
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<span style="font-family: inherit;"><span style="font-family: inherit;">Here Govan Law Centre's Laura Brennan, Trainee Solicitor, explains the pitfalls of giving your equity away to a quick home buy company in times of financial distress. </span></span><br />
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<span style="font-family: inherit;">Our recent Sheriff Appeal Court case of <i>Santander -v- C</i> emphasises the importance of homeowners seeking legal advice should their mortgage lender raise a court action for repossession against them. Unfortunately, some homeowners in these circumstances have proved vulnerable to private individuals or companies seeking to buy properties for well below the market value.<o:p></o:p></span></div>
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<span style="font-family: inherit;">Govan Law Centre (GLC) is calling for greater awareness raising among Scottish homeowners of the consequences of a quick sale to avoid court action. Quick home buy companies operate in an unregulated market in the UK, so there is little or no consumer protection in practice. <o:p></o:p></span></div>
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<span style="font-family: inherit;">We recently assisted Mr C, a client whose mortgage lender had raised court action against him for repossession. Mr C had high arrears and a higher outstanding mortgage balance but as with all cases of repossession, the Court must still consider whether repossession is reasonable. <o:p></o:p></span></div>
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<span style="font-family: inherit;">Mr C suffered from poor health which affected his ability to work and consequently, his ability to pay his mortgage. Mr C was seeking an additional six months in the property during which time he would undertake improvement works to the property so that it could be marketed and sold. Unfortunately, this was not accepted by his lender who raised court action.<o:p></o:p></span></div>
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<span style="font-family: inherit;">Decree was granted against Mr C when his case first called in court, given the level of his arrears. We appealed this decision on the grounds of reasonableness. It was the view of GLC that the Sheriff had not considered Mr C’s poor health or the impact on his daughter who attended school in the local area. It was also Mr C’s position that he had not had a fair and public and hearing, in accordance with his human rights.<o:p></o:p></span></div>
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<span style="font-family: inherit;">After the appeal was raised and before a decision was made, a settlement agreement was reached. The terms of the agreement were that Mr C was allowed an additional four months in the property in order for it to be sold. We were delighted to learn recently that the additional time granted allowed Mr C to sell his property at a price that allowed him to discharge the security in full and Mr C will be left with a very sizeable cash surplus following the sale. By selling the property himself, Mr C was able to achieve the best possible open market value. This would not have been possible if he had not taken legal advice.<o:p></o:p></span></div>
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<a href="https://4.bp.blogspot.com/-YdZrEzOk_xk/XMAOa-a9J6I/AAAAAAAAB6s/ahplsig25UEv4Vn4Jk3Pin3CD2OPb-o_ACLcBGAs/s1600/Screen%2BShot%2B2019-04-24%2Bat%2B08.20.45.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="318" data-original-width="200" height="220" src="https://4.bp.blogspot.com/-YdZrEzOk_xk/XMAOa-a9J6I/AAAAAAAAB6s/ahplsig25UEv4Vn4Jk3Pin3CD2OPb-o_ACLcBGAs/s200/Screen%2BShot%2B2019-04-24%2Bat%2B08.20.45.png" width="137" /></a><span style="font-family: inherit;">In similar circumstances some homeowners have opted for a quick sale of their property. We are aware of companies that offer to purchase the property of homeowners under this type of pressure. Typical offers begin at around 70% of the market value and continue to drop the further things are progressed. The proceeds that are obtained by the sale can also affect entitlement to Universal Credit and other means-tested benefits.<o:p></o:p></span></div>
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<span style="font-family: inherit;">It is therefore of the utmost importance that, when faced with this situation, homeowners take legal advice to increase their awareness of their rights and maximise the proceeds of any sale. A company that will buy your property for a quick cash sale is unlikely to be the answer, and not worth the price you’ll pay. </span><br />
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<span style="font-family: inherit;">Further </span>independent<span style="font-family: inherit;"> and impartial online information is available here: </span><a href="https://www.moneyadviceservice.org.uk/en/articles/quick-house-sales" style="font-family: inherit;">https://www.moneyadviceservice.org.uk/en/articles/quick-house-sales</a><span style="font-family: inherit;"> </span></div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-65884312716401357022019-04-08T10:17:00.000+01:002019-04-08T10:17:58.936+01:00GLC raises concerns over Local Housing Allowance for private sector tenants in Scotland<a href="https://1.bp.blogspot.com/-Qn4aOHqPlOI/XKsP873WgOI/AAAAAAAAB6I/AtB8AX0kvdoWF_izsweeJsZLDyAHLOhlQCLcBGAs/s1600/Social%2Bsecurity%2Bcommittee%2B1.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="680" data-original-width="1254" height="216" src="https://1.bp.blogspot.com/-Qn4aOHqPlOI/XKsP873WgOI/AAAAAAAAB6I/AtB8AX0kvdoWF_izsweeJsZLDyAHLOhlQCLcBGAs/s400/Social%2Bsecurity%2Bcommittee%2B1.jpg" width="400" /></a><br />
On 28 March 2019, representatives of Govan Law Centre gave evidence to the Scottish Parliament's Social Security Committee alongside Shelter Scotland and Living Rent Edinburgh. A video of of the evidence session is available on the <a href="https://www.scottishparliament.tv/meeting/social-security-committee-march-28-2019?fbclid=IwAR1JH1b22FNnajR9uEba-7l3aCaS6PyTtAaePL1oMW8eM0zisa-LyNs-jTk" target="_blank">Scottish Parliament's website here</a>. The Official Report of <a href="http://www.parliament.scot/parliamentarybusiness/report.aspx?r=12033&mode=pdf" target="_blank">the meeting is available here</a> (opens as a PDF).Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-3676092650342011912018-12-29T16:03:00.002+00:002019-01-04T13:12:23.905+00:00Scottish rents spiralling at double the rate of inflation don’t tell the full story: GLC raises concern over the private rented sector in Scotland<i>Unlawful and unfair exploitation of vulnerable tenants lie beneath Scottish Government statistics </i><br />
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Rents in Glasgow and Edinburgh’s private rented sector (PRS) have risen more than anywhere else in Scotland, and Govan Law Centre (GLC) believes spiralling rent costs are leading to more homelessness and poverty.<br />
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<span style="background-color: rgba(255 , 255 , 255 , 0); font-family: inherit;">We believe the story beneath the Scottish Government’s official statistics is stark, and deeply worrying. Casework from GLC’s Citywide Private Rented Sector service in Glasgow reveals how many private landlords aren’t following the legal protections in place for rent increases. </span><br />
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<a href="https://3.bp.blogspot.com/-e8igo-l2DE0/XCeYucO2sxI/AAAAAAAAB4k/OPwG5TGan8w5xRn0L336m1Kmhx2q8TQUACLcBGAs/s1600/Screen%2BShot%2B2018-12-29%2Bat%2B15.51.17.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><span style="font-family: inherit;"><img border="0" data-original-height="590" data-original-width="1166" height="162" src="https://3.bp.blogspot.com/-e8igo-l2DE0/XCeYucO2sxI/AAAAAAAAB4k/OPwG5TGan8w5xRn0L336m1Kmhx2q8TQUACLcBGAs/s320/Screen%2BShot%2B2018-12-29%2Bat%2B15.51.17.png" width="320" /></span></a>Some tenants end up paying for the repairs their landlords are obliged by law to carry out.<br />
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Many vulnerable tenants are being pushed into financial hardship and misery, and being forced to live below “the breadline” and rely on foodbanks to make ends meet.<br />
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In Glasgow, private rents have been hiked up by almost one third between 2010 and 2018 (31.13%) - almost double the rate of inflation (the consumer price index rose by a total of 18.7% over the last eight years - see further Chart 1 below). <br />
<b><br />GLC’s PRS Co-ordinator Wendy Malloy said</b>: “We can evidence that rent increases being implemented during lets are having a serious impact on household financial sustainability, and increasing the risk of homelessness. A lot of the time these increases are being done without proper legal notice being served and with tenants simply accepting they have to pay”. </div>
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“We are seeing many households struggle with arrears and we are providing legal advice and representation in these circumstances. We believe this highlights the need to get the message out to people that there is a formal process in place for increasing rents and mechanisms to appeal should the tenant disagree with the proposed increase. Always seek free advice from your local law centre or advice agency”. <br />
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<b>GLC’s Principal Solicitor Mike Dailly said</b>: “Our casework provides cogent evidence of unlawful rent hikes across the City by private landlords. One of our clients is a disabled single parent whose landlord increased her rent by 43% during one month to £1,500 p.m. The housing benefit ‘local housing allowance’ was only £800 p.m. Other clients already struggling to make up housing benefit shortfalls have been trying to cope with rent increases of around £100 p.m. Tenants can apply for discretionary housing payments to help, but these are generally temporary. In practice, many tenants are meeting rent hikes by using their social security money for food and heating costs”.<br />
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“There is clearly a need for greater public awareness that rent hikes require formal written notice and must comply with certain legal procedures to be valid. There is always a right to appeal, although the law on market rents tends to favour private landlords. Govan Law Centre believes the private rented sector remains largely unregulated and in practice is too often a free-for-all for landlords out to squeeze as much money as they can from a tenant with limited options”. <br />
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“For low income tenants there is no consumer choice or genuine market competition in this sector. We believe there is a case for national regulation - there is no national regulation at present unlike for the social rented sector. There is a need for a ‘living rent’ in this dysfunctional market, and strengthening the rights of private sector tenants in Scotland. The present system is unsustainable and is costing the taxpayer in terms of the social, human, and medical problems it creates”.</div>
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<b>Case study Mrs J</b><br />
Mrs J is a widowed woman with 3 adult children living in private rented property. Mrs J’s has a number of health problems and her own income derives from sickness and disability benefits. Mrs J’s also has an entitlement to housing benefit of £800 per month which was capped at the maximum level of local housing allowance. The client with the assistance of her family were able to pay the difference of £250 towards the contractual rent of £1,050 each month. Mrs J’s landlord came to the clients home to advise that he was increasing the rent to £1,500 each month and that this was to be effective from the next date rent was due. Govan Law Centre were able to advise that this increase had not been intimated to her in the prescribed form and insufficient notice had been given and also advised this to the landlord. A few months on from this her landlord returned and provided the correct intimation and notice which meant there was to be an increase of £450 per month towards the rent. Mrs J and her family were unable to afford this increase despite significant reductions in their household spending. As a result of this increase Mrs J and her family had to make an application for Homelessness on the basis that their rent was unaffordable and can no longer sustain their tenancy. <br />
<b><br />Case study Mr K</b><br />
Mr K is a single man living in private rented property. Mr K has lived in the property for over 12 years. Due to poor mental health Mr K has been unable to work throughout the period of his tenancy. Mr K’s housing benefit was capped at the maximum local housing allowance for the property but only had to pay a few pounds from his Employment Support Allowance to meet the contractual rent. At the start of the year his landlord advised that the level of rent was to be increased by £91 per month. Mr K has had some assistance with Discretionary Housing Payment to help meet this increase however due to the nature of the award this was only a short term award. Mr K started further utilising his Employment & Support Allowance to help cover the shortfall but this has meant he has had to cut back significantly on essential expenditure such as food, heating and lighting. Mr K was unable to sustain these cut backs and as such his rent has become affordable. Mr K is now currently looking to move into Registered Social Landlord housing stock but due to the level of housing stock available has yet to find suitable alternative accommodation. As a consequence Mr K has accrued arrears to the value of the monthly rental shortfall. <br />
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<b>Case study Ms B</b><br />
Ms B is a single parent to two boys and lives in private rented accommodation. Ms B works full time, so was paying rent herself until the landlord increased this from £650 to £750 pcm. As the property was also suffering disrepair and dampness, Ms B’s income was being used to provide additional heating and fixing repairs the landlord was refusing to do, such as replace a broken window, clean and paint over dampness. When the rent was increased Ms B begun to miss payments and accrued arrears of £1300 and late payments. Ms B has applied for DHP but this was refused. She was now borrowing from family and friends to manage the arrears and pay full rent. Govan Law Centre were able to report the landlord to Landlord Registration and the Housing and Property Chamber for Scotland and as a consequence a rent relief order and repair enforcement order were granted. Govan Law Centre were also able to ascertain that the rent increase was unlawfully implemented as no rent increase notice had been served. Ms B gave up her private tenancy a few weeks after the enforcement orders were granted to move in with family while seeking social housing. <br />
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<b><span style="font-family: inherit;">PRS stats for Scotland from 2010 to 2018 (year end September)</span></b></div>
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<a href="https://www.gov.scot/publications/private-sector-rent-statistics-2010-2018/"><span style="font-family: inherit;">https://www.gov.scot/publications/private-sector-rent-statistics-2010-2018/</span></a></div>
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Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-39643078277202862172018-12-18T08:33:00.000+00:002018-12-18T08:59:49.214+00:00GLC settles Sheriff Appeal Court eviction appeal: Elderpark Housing Assn v. MGovan Law Centre has settled a Sheriff Appeal Court (SAC) case where a single female parent and her children were due to be evicted following an unsuccessful evidential hearing (proof) which had been conducted by a private firm of solicitors in Glasgow. Parties have agreed to allow the appeal insofar as it relates to the eviction, while adhering to the payment decree, with the appeal being dismissed on a no expenses basis. The Glasgow Scottish Secure tenant will remain in her home with the threat of physical eviction lifted.<br />
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<a href="https://3.bp.blogspot.com/-CXliTb8bkME/XAq6DsoT5aI/AAAAAAAAB4E/0ZvTOU7ENXscSEVo4ZsdbxO4fHPR7CQAgCPcBGAYYCw/s1600/Screen%2BShot%2B2018-12-07%2Bat%2B18.08.04.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="204" data-original-width="556" height="106" src="https://3.bp.blogspot.com/-CXliTb8bkME/XAq6DsoT5aI/AAAAAAAAB4E/0ZvTOU7ENXscSEVo4ZsdbxO4fHPR7CQAgCPcBGAYYCw/s320/Screen%2BShot%2B2018-12-07%2Bat%2B18.08.04.png" width="288" /></a>The case of <i>Elderpark Housing Association v. M</i> concerned an appeal by way of Stated Case is in relation to a decree for recovery of heritable possession granted by the sheriff in summary cause proceedings in July 2017. The appellant argued that the proceedings were incompetent for the social landlord’s failure to comply with section 14(2)(a) of the Housing (Scotland) Act 2001 (“the 2001 Act”). As a matter of law, the appellant contented that the court was not entitled nor empowered to grant decree in the proceedings. The appellant’s arguments did not require to be tested by the SAC, however, the issues raised may be of interest to housing advisors and solicitors generally.<br />
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In the appellant’s submission section 14(2) of the 2001 Act is a fundamental statutory requirement that goes to the competency of the eviction proceedings. From a plain reading of section 14, a landlord cannot raise recovery of possession proceedings without complying precisely with the requirements of subsection (2). The language used in subjection (2) sets out the clear intention of the 2001 Act, namely that “proceedings may not be raised unless” a landlord complies with subjection (2). In the appellant’s submission, the use of these words meant that proceedings raised without compliance with section 14(2) are incompetent as a matter of law. There is no provision in section 14 for relief for non-compliance with section 14(2), nor is any power or discretion given to the court on this issue of jurisdictional competency. Section 14(1) and (2) provides as follows: <br />
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“<b>14 Proceedings for possession</b><br />
(1) The landlord under a Scottish secure tenancy may raise proceedings by way of summary cause for recovery of possession of the house.<br />
(2) Such proceedings may not be raised unless—<br />
(a) the landlord has served on the tenant and any qualifying occupier a notice complying with subsection (4),<br />
(b) the proceedings are raised on or after the date specified in the notice, and<br />
(c) the notice is in force at the time when the proceedings are raised”.<br />
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The appellant’s appeal point was that the respondent did not comply with section 14(2)(a) of the 2001 Act by failing to serve a notice complying with subsection (4) (the Notice of Proceedings for Recovery of Possession or “NPRP”) on a qualifying occupier within the appellant’s household. Subjection (6) of section 14 of the 2001 Act provides the following statutory definition of a “qualifying occupier”:<br />
<br />
“(6) In this section and section 15, “qualifying occupier” means a person who occupies the house as that person's only or principal home and who is—<br />
(a) a member of the tenant's family aged at least 16 years,<br />
(b) a person to whom the tenant has, with the landlord's consent under section 32(1), assigned, sublet or otherwise given up possession of the house or any part of it, or<br />
(c) a person whom the tenant has, with such consent, taken in as a lodger”.<br />
<br />
No NPRP was served on the appellant’s daughter who was 16 when defences were lodged. She had been aged 16 for over four months when the NPRP was served on the appellant. This was not a matter in dispute between the parties. The 2001 Act places a duty upon the respondent to ascertain whether there are any qualifying occupiers in the tenancy subjects before serving a NPRP. Section 14(3) of the 2001 Act provides as follows:<br />
<br />
<div>
“(3) Before serving a notice under subsection (2) the landlord must make such inquiries as may be necessary to establish so far as is reasonably practicable whether there are any qualifying occupiers of the house and, if so, their identities”.</div>
<div>
<br />
The appellant’s submission was that the sheriff was not entitled in law to grant decree in July 2017. Reference was made to the House of Lords decision in <i>Regina v Soneji and another</i> [2005] UKHL 49, [2006] 1 AC 340. This opinion considers questions of statutory interpretation in relation to whether a provision is mandatory or directory. The general position has been that where there is a failure to comply with a mandatory statutory provision what then follows is a nullity. Reference was made to Lord Steyn’s judgment starting at page 349, paragraph 14: <i>“A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply</i>”.</div>
<div>
<br />
<a href="https://3.bp.blogspot.com/-nwlL0qhK2aA/S_zVkZflHLI/AAAAAAAABUE/WaHJBHQc02gHUbPSjnRPRZwEMoWFE7cIQCPcBGAYYCw/s1600/glclogo.gif" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="118" data-original-width="150" src="https://3.bp.blogspot.com/-nwlL0qhK2aA/S_zVkZflHLI/AAAAAAAABUE/WaHJBHQc02gHUbPSjnRPRZwEMoWFE7cIQCPcBGAYYCw/s1600/glclogo.gif" /></a>This approach was consistent with the decision of the Sheriff Principal in <i>North Lanarkshire Council v. Cairns</i> 2012 SLT (Sh Ct) 128. This opinion of the court concerned a qualifying occupier – a tenant’s son - unsuccessfully arguing that he had a right to minute for recall of decree. He was not a “party” to the proceedings. However, the Sheriff Principal held that his Article 6 rights in terms of section 6 and schedule 1 of the Human Rights Act 1998 were safeguarded by the requirement for a NPRP to be served on him in terms of section 14 – reference was made to paragraph 32 at page 10 of the court’s opinion. The qualifying occupier had been served with a NPRP in Cairns, and had the opportunity had he so wished to apply to become a party to the action under section 15 of the 2001 Act. <br />
<br />
The issue of an NPRP not being served on a qualifying occupier was not pled or argued before the sheriff at first instance. However, the appellant contended that it was <i>pars judicis </i>for the court to consider competency if the issue goes to nullity. <br />
<br />
This point was recently considered by the Inner House in <i>Simpson v. Downie</i> 2013 SLT 178 – reference was made to paragraph 10: “<i>By reference to Macphail, Sheriff Court Practice (3rd edn), para.2.09, and to the opinion of Lord Young in Douglas v Tait at (1884) 12 R., p.14, it should not be regarded as pars judicis for the court to take a technical point on competency unless either a nullity, or some important external interest, could be identified”</i>. In Simpson the Inner House dismissed the action as incompetent as the issue was one that went to jurisdictional competency. </div>
<div>
<br />
The appellant was represented by GLC’s Mike Dailly, Solicitor Advocate.<br />
<div>
<span style="font-kerning: none;"><br /></span></div>
</div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-46767850028240851272018-12-07T18:26:00.002+00:002018-12-07T18:26:18.318+00:00GLC secures recall of mortgage repossession decree despite defender having appeared in court: Santander UK plc v. P <a href="https://1.bp.blogspot.com/-CXliTb8bkME/XAq6DsoT5aI/AAAAAAAAB4A/o-9l1ZVFN_wh4MbmBYErkpx1UjSllbt6ACLcBGAs/s1600/Screen%2BShot%2B2018-12-07%2Bat%2B18.08.04.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="204" data-original-width="556" height="73" src="https://1.bp.blogspot.com/-CXliTb8bkME/XAq6DsoT5aI/AAAAAAAAB4A/o-9l1ZVFN_wh4MbmBYErkpx1UjSllbt6ACLcBGAs/s200/Screen%2BShot%2B2018-12-07%2Bat%2B18.08.04.png" width="200" /></a><span style="font-family: inherit;">Following the decision of the Sheriff Appeal Court in <a href="https://www.scotcourts.gov.uk/search-judgments/judgment?id=95853da7-8980-69d2-b500-ff0000d74aa7" target="_blank">NRAM plc v. Cordiner</a> last year, it is generally thought that a homeowner cannot recall a decree by a "Minute for Recall of Decree' where he or she had appeared in court, or been represented. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">This week, Govan Law Centre (GLC) was able to secure a recall of a mortgage repossession decree despite the homeowner having previously appeared before the sheriff. A summary of the case is set out below. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Mr P consulted Govan Law Centre through the Ayrshire Homelessness Prevention Project because his mortgage lender, Santander UK plc, had raised a repossession action against him. His mortgage had matured and the full balance had become due. His lenders had obtained decree for repossession. As a result, Mr P was facing homelessness.</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Mr P had not attended the first hearing of the case, as his lenders’ solicitors had told him he did not need to, since they would ask for the case to be continued for him to get financial advice. Mr P attended the next hearing of the case personally, and he was given further time again by the Sheriff. Mr P was not aware of the next hearing date, and therefore did not attend. Unfortunately, at this hearing, decree was granted in his absence. Mr P had not been represented in the process, nor put forward any defence. </span><br />
<a href="https://3.bp.blogspot.com/-oTcRwxUz7nQ/XAq7LlYaoOI/AAAAAAAAB4M/BaCPsVgvPnw-obkDI9kJTUlSeKPCrPXWQCLcBGAs/s1600/Screen%2BShot%2B2018-12-07%2Bat%2B18.25.24.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="259" data-original-width="345" height="150" src="https://3.bp.blogspot.com/-oTcRwxUz7nQ/XAq7LlYaoOI/AAAAAAAAB4M/BaCPsVgvPnw-obkDI9kJTUlSeKPCrPXWQCLcBGAs/s200/Screen%2BShot%2B2018-12-07%2Bat%2B18.25.24.png" width="200" /></a><span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Mr P instructed Govan Law Centre to lodge a Minute for Recall of Decree on his behalf. This was lodged and a hearing was held at Kilmarnock Sheriff Court. The Pursuers opposed the Minute for Recall on the basis of a recent decision of the Sheriff Appeal Court, in NRAM plc v Cordiner (2017) SAC (Civ) 27. They argued that the Minute for Recall was not competent on the basis of this decision. The Sheriff refused the Minute for Recall. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Section 24D of the Conveyancing and Feudal Reform (Scotland) Act 1970 states: </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">“(1) A person mentioned in subsection (2) below may apply to the court for recall of a decree granted on an application under section 24 (1B) of this Act</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">(2) Those persons are (…) (b) the debtor, but only if the debtor did not appear and was not represented in the proceedings on the application under section 24(1B); “</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">In Cordiner, the Defender had lodged defences, been represented at previous hearings, consented to decree, amongst various other procedural stages. On appeal, the Sheriff Appeal Court held that, as the Defender had appeared and been represented in the proceedings, she was prevented from using the recall process. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Mr P instructed us to lodge an appeal of the Sheriff’s decision refusing the Minute for Recall on the basis that his case could be distinguished from Cordiner, and on the basis that the Sheriff’s decision was incompatible with his Convention Rights under the European Convention on Human Rights. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Having regard to the reasoning in Cordiner, it was Mr P’s position that the question to be determined was whether in his case litiscontestation had occurred, in which case, the appellant would have been prevented from seeking a recall of decree. This was the case in Cordiner, which had a particularly extensive procedural history. This had not occurred in the present case, as confirmed by the Sheriff in her note. She stated “At no time did he offer any defence to the action”</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Additionally, in Cordiner, the court was not persuaded that they required to fully consider the requirement to read down the relevant section of the legislation in line with the European Convention on Human Rights, as the defender had fully engaged in proceedings, having lodged pleadings and been represented in numerous hearings. This was not the case in the present proceedings, and Mr P submitted that the Appeal Court should fully consider these submissions, and read down the legislation to be compliant with his Convention Rights.</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">Before the appeal hearing was due to be heard in his case, Mr P’s lenders agreed to the decree being recalled. The appeal was therefore dropped, and the case referred back to the Sheriff court. There is an evidential hearing fixed. Mr P is proceeding through the Mortgage to Rent Scheme and hopes he will soon be in a position to discharge his liabilities to his lenders, and remain in his home. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">It certainly would have been beneficial for borrowers in general to have received some clarity from the Appeal Court about the position of Minute for Recalls being lodged in similar circumstances, where no formal defence has previously been tendered and decree in absence is granted. However, this is an extremely good result for Mr P. <b>We urge anyone in similar circumstances to seek urgent legal advice. </b></span><br />
<span style="font-family: inherit;"><b><i><br /></i></b></span>
<span style="font-family: inherit;"><i>The defender and appellant was represented by GLC's senior solicitor, Laura Simpson, and Mike Dailly, Solicitor Advocate was instructed in the appellate proceedings. </i></span><br />
<br />Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-87211169697495948772018-09-20T18:56:00.002+01:002018-09-20T19:09:21.033+01:00Govanhill Law Centre prevents “instant” eviction of family of EU citizens without notice in Glasgow <div class="MsoNormal">
<div class="MsoNormal">
<span lang="EN-US">Govanhill Law Centre (GhLC) has prevented
the instant eviction of a family of European Union (EU) nationals with four
young children by lodging a sheriff court appeal earlier this afternoon seeking
the suspension of the eviction. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<a href="https://1.bp.blogspot.com/-mGJ4YC5D6wE/SmonPXfgrUI/AAAAAAAAADw/WULWDXeqbTcqhLDzy-vkwx9dwn8YE7I8ACPcBGAYYCw/s1600/glasgowcourt.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="300" data-original-width="400" height="150" src="https://1.bp.blogspot.com/-mGJ4YC5D6wE/SmonPXfgrUI/AAAAAAAAADw/WULWDXeqbTcqhLDzy-vkwx9dwn8YE7I8ACPcBGAYYCw/s200/glasgowcourt.jpg" width="200" /></a><span lang="EN-US">Physical ejection from the property was
scheduled to take place tomorrow at 10am in Govanhill. A sheriff at Glasgow
Sheriff Court has now issued a court order to temporarily suspend the ejection,
in order to give the family time to secure homeless or alternative
accommodation.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-US">The client had obtained the lease of a
privately let flat in Govanhill, paying a deposit and rent, only to discover
they had been duped.<span style="mso-spacerun: yes;"> </span>There is a criminal
practice in Glasgow of fraudsters breaking into vacant flats and falsely
letting them out to vulnerable low paid EU workers.<span style="mso-spacerun: yes;"> </span><o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-US">Our client’s case called in court yesterday
on 48 hours notice (instead of the usual 21 days). Our client accepted she
would have to leave the flat but asked for a little time to find alternative
accommodation. The sheriff refused to do so and granted an immediate extract
decree for eviction, and dispensed with the need to serve a charge for
removing. The standard practice on decree for eviction is an occupier will have
28 days before eviction by sheriff officers.<o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-US">The client’s solicitor, GhLC’s senior
solicitor, Rachel Moon obtained instructions for Govan Law Centre’s Mike Dailly
to draft an urgent Note of Appeal today. The Note of Appeal argued that the
sheriff’s decree was unlawful as it was a disproportionate interference with
the client’s right to respect for her private and family life, and her home, as
safeguarded by Article 8 of the European Convention on Human Rights. <o:p></o:p></span></div>
<div class="MsoNormal">
<br /></div>
<div class="MsoNormal">
<span lang="EN-US">There had been no proper assessment of the
proportionality of the granting of an “instantly enforceable” eviction decree
as was required standing European human rights jurisprudence including the case
of <b><i>Kay v. UK </i></b>(2012) 54 E.H.R.R.<span style="mso-spacerun: yes;"> </span>Some key
facts in the case were in dispute and there was no evidential inquiry.</span><br />
<br />
The court had been made aware the family
could not obtain homelessness assistance from the local council upon zero
notice, given the need to ingather evidence to satisfy the various residency
and work tests for eligibility, and would be destitute and homeless without
some period of notice. Despite this, the sheriff had granted decree, which
would be immediately enforced with no notice.<br />
<br />
Following the sheriff’s order
this afternoon, the family now have an opportunity to secure alternative
accommodation with the help of Govanhill Law Centre.</div>
</div>
<div class="MsoNormal">
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Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-13206591270197794962018-07-19T15:02:00.000+01:002018-07-19T15:05:45.148+01:00Permission for homelessness petition for judicial review to proceed against Glasgow City Integration Joint Board (Glasgow City Health and Social Care Partnership)<a href="https://2.bp.blogspot.com/-5ZggYR95zLI/W1CY-UJb8AI/AAAAAAAAB3o/kEYoIW4AhuA7b5sOgffYz_og1S5oABJbQCLcBGAs/s1600/GCIJB.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="368" data-original-width="586" height="125" src="https://2.bp.blogspot.com/-5ZggYR95zLI/W1CY-UJb8AI/AAAAAAAAB3o/kEYoIW4AhuA7b5sOgffYz_og1S5oABJbQCLcBGAs/s200/GCIJB.JPG" width="200" /></a>Lady Paton has granted permission today for a petition to proceed for judicial review of a homelessness decision against the Glasgow City Integration Joint Board (GCIJB; also known as the '<i>Glasgow City Health and Social Care Partnership</i>'). A procedural hearing has been assigned for 22 August, and a substantive hearing for 3 October 2018 at 10am in <i>Zungunde v. Glasgow City Integration Joint Board</i>.<br />
<br />
The intentional homelessness decision was made by Glasgow City Council on behalf of the GCIJB. It is believed that this may be the first petition for judicial review in Scotland against an Integrated Joint Board with respect to its delegated statutory responsibilities and duties.<br />
<br />
The GCIJB is a body corporate established by Order under section 9 of the Public Bodies (Joint Working) (Scotland) Act 2014 (the 2014 Act). On 6 February 2016, the GCIJB assumed delegated duties and decision-making power under Part II of the Housing (Scotland) Act 1987 (the 1987 Act) in terms of section 1(5) of the 2014 Act, its Integration Scheme approved under section 7 of the 2014 Act, and The Public Bodies (Joint Working) (Integration Joint Board Establishment) (Scotland) Amendment Order 2016 (SSI 2016/2).<br />
<br />
Although the GCIJB subsequently issued a Direction under section 26 of the 2014 Act for Glasgow City Council to carry out its functions under the Part II of the 1987 Act, the petitioner's position is that in terms of <i>inter alia </i>section 25(3) of the 2014 Act, the duties and powers under Part II of the 1987 Act rest with the GCIJB, and that Glasgow City Council act on the GCIJB's behalf.<br />
<br />
The GCIJB is represented by the NHS Scotland Central Legal Office, the petitioner is represented by GLC's Mike Dailly, Solicitor Advocate.Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-22956820691055873182018-06-28T11:16:00.002+01:002018-06-28T11:20:04.557+01:00Sheriff Appeal Court case on credit card debt & prescription scheduled for 23 August 2018<a href="https://4.bp.blogspot.com/-PCl42e8pJI4/WzSwobPwOFI/AAAAAAAAB3c/IRUeWlErerwpwhrTRAYZnCnMeTSOvs6xgCLcBGAs/s1600/PRAvMacPherson.JPG" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="532" data-original-width="748" height="141" src="https://4.bp.blogspot.com/-PCl42e8pJI4/WzSwobPwOFI/AAAAAAAAB3c/IRUeWlErerwpwhrTRAYZnCnMeTSOvs6xgCLcBGAs/s200/PRAvMacPherson.JPG" width="200" /></a>A fresh appeal diet before the Sheriff Appeal Court was assigned today by Sheriff Principal Turnbull in <i><b>PRA Group (UK) Ltd v. MacPherson</b></i>, for 23 August 2018. The new diet will allow time for the appellant's civil legal aid application to be determined by the Scottish Legal Aid Board.<br />
<br />
The appeal case deals with a novel point of Scots law, which potentially affects many consumer credit cases across Scotland, where old credit card debt has been sold on to UK and international debt-purchasing companies and then pursued through the Scottish courts.<br />
<br />
The appellant's position is that court proceedings for debt were not raised until over five years from when his monthly credit card payment was last due. The claimant and creditor's position is that the starting point for prescription is after it serves a default notice under the Consumer Credit Act 1974, which was before the five year prescriptive period in Scots law.<br />
<br />
The appellant believes that the creditor is conflating UK consumer credit law and the enforcement of credit agreements, with the Scots law of prescription. The appellant contends that credit card agreements clearly make "<i>provision</i>" for the date when the whole balance due is to be repaid, which is the date upon which a monthly payment has been missed.<br />
<br />
The appellant is represented by GLC's Mike Dailly, Solicitor Advocate. The creditor is represented by Brodies LLP.Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-42087556586202174512018-05-14T15:54:00.001+01:002018-05-14T15:54:16.247+01:00GLC meets Maggie Craig, Financial Conduct Authority's Head of Department, Scotland<a href="https://3.bp.blogspot.com/-OWIa1xLSRHc/WvmZuNv9cGI/AAAAAAAAB3I/S6inlRcKW1k17-aQb_BZJLPncf3fFlA8wCLcBGAs/s1600/FCAimage2018.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="430" data-original-width="761" height="112" src="https://3.bp.blogspot.com/-OWIa1xLSRHc/WvmZuNv9cGI/AAAAAAAAB3I/S6inlRcKW1k17-aQb_BZJLPncf3fFlA8wCLcBGAs/s200/FCAimage2018.JPG" width="200" /></a> Govan Law Centre (GLC) has had a very productive and helpful meeting with the Financial Conduct Authority's (FCA) new Head of Department, Scotland, Maggie Craig in Govan this morning. Before joining the FCA, Maggie held a variety of roles at the Association of British Insurers (ABI) including Director of Scottish Affairs, Acting Director General and, latterly, Director of Financial Conduct Regulation.<br />
<br />
Maggie set out the new business strategy for the FCA's increased presence in Scotland, which now employs 101 people in Edinburgh's Fountainbridge, as well as the new opportunities for Scotland's growing 'fintech' (financial technology) industry. The financial services sector contributes around £8bn to the Scottish economy.<br />
<br />
Principal Solicitor, Mike Dailly set out GLC's hope and aspiration for fintech solutions to revolutionise the free money advice sector in Scotland, by utlising opening banking developments from the revision to the EU's Payment Services Directive ('PSD2') to streamline debt advice for both advisors and consumers. A good example of some of the opportunities for fintech solutions to help and empower consumers were set out in a Money Advice Service <a href="http://www.fincap.org.uk/financial-capability-lab" target="_blank">'Financial Capability Lab' report</a> last week.<br />
<br />
Mike also discussed a number of concerns around some particular high cost credit card products, and mortgage lenders fees and charges, as well as recent developments with respect to potentially prescribed credit debt cases in Scotland, and excessive and punitive interest charges in cases where secured debt has been sold on. GLC agreed to keep in touch with Maggie on relevant areas of consumer interest in Scotland.Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-15182838792127708342018-04-25T09:23:00.005+01:002018-04-25T09:23:42.685+01:00Scottish Government should return to first principles to be fair to consumers in reforming the law of prescription in Scotland<div class="separator" style="clear: both; text-align: center;">
</div>
<div class="separator" style="clear: both; text-align: center;">
<a href="https://2.bp.blogspot.com/-U-K9vrxuJTQ/WuAugrsHjZI/AAAAAAAAB2c/IvWzT0mGnnokzd9apTHHxw4-EWplNTt_wCEwYBhgL/s1600/Screen%2BShot%2B2018-04-25%2Bat%2B07.50.34.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="320" data-original-width="636" height="144" src="https://2.bp.blogspot.com/-U-K9vrxuJTQ/WuAugrsHjZI/AAAAAAAAB2c/IvWzT0mGnnokzd9apTHHxw4-EWplNTt_wCEwYBhgL/s320/Screen%2BShot%2B2018-04-25%2Bat%2B07.50.34.png" width="288" /></a></div>
Govan Law Centre (GLC) has argued that the Scottish Government's reform of the law of prescription - the date that obligations are extinguished in law - should go back to first principles. GLC's Principal Solicitor set out our position yesterday before the Scottish Parliament's <a href="http://www.parliament.scot/parliamentarybusiness/CurrentCommittees/delegated-powers-committee.aspx" target="_blank">Delegated Powers and Law Reform Committee</a>, which is leading the Stage 1 inquiry on the <a href="http://www.parliament.scot/parliamentarybusiness/Bills/107653.aspx" target="_blank">Prescription (Scotland) Bill</a>. The evidence session is available to <a href="https://www.youtube.com/watch?v=nnp6NQ6HWPI" target="_blank">watch on YouTube</a>.<br />
<br />
The Scottish Government's aim - and the starting point of the Scottish Law Commission original <a href="https://www.scotlawcom.gov.uk/files/3514/5614/9429/Discussion_Paper_on_Prescription_DP_No_160.pdf" target="_blank">Discussion Paper</a> thinking - was to create clarity, simplicity, certainty and fairness in the law on prescription. GLC believes that this should mean all legal obligations are subject to a five year prescriptive period as a matter of principle. The current law, contained in the <a href="https://www.legislation.gov.uk/ukpga/1973/52/contents" target="_blank">Prescription and Limitation (Scotland) Act 1973</a>, is almost half a century old and the justification for requiring 20 years to pursue debts and obligations is outdated with today's standards and technology.<br />
<br />
While the Scottish Law Commission originally envisaged Scots law being simplified so that all statutory obligations would be subject to the five year '<i>quinquennium</i>', the Bill makes a number of exceptions to this rule for tax generally, national insurance, council tax, child maintenance and reserved social security benefits. These exceptions result in a 20 year prescriptive period.<br />
<br />
GLC notes that public policy arguments have been accepted for differential treatment, but we still believe that the five-year prescriptive period should apply to all statutory obligations. For example, there is no justification for council tax to be subject to a six year prescriptive period in England but 20 years in Scotland.<br />
<br />
If the Scottish Government is not willing to amend the Bill, GLC has encouraged the Parliament's Committee to do so, which failing to consider a fall back compromise position. For example, the Bill’s current exceptions could be subject to five years, and an extended period of 10 years in the following exceptional circumstances:<br />
<a href="https://3.bp.blogspot.com/-oog7VkkUHS8/WuAu61G8j1I/AAAAAAAAB2g/tAqriSZtv6YfMfI6Pu_fPKQ7cvuEohl4wCLcBGAs/s1600/Screen%2BShot%2B2018-04-25%2Bat%2B07.54.57.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="265" data-original-width="717" height="96" src="https://3.bp.blogspot.com/-oog7VkkUHS8/WuAu61G8j1I/AAAAAAAAB2g/tAqriSZtv6YfMfI6Pu_fPKQ7cvuEohl4wCLcBGAs/s320/Screen%2BShot%2B2018-04-25%2Bat%2B07.54.57.png" width="256" /></a><br />
<ul>
<li>Where there has been willful, false or misleading information by the debtor which has resulted in a material delay in enforcing the debt due, or</li>
</ul>
<ul>
<li>The creditor can prove that the delay in enforcing the obligation was not due to a material delay on its part, and it would be in the public interest to allow an extended period.</li>
</ul>
<br />
As a matter of public policy, we can see why there may be a case for individual exceptions, but they should be genuinely exceptional, otherwise what the Bill will fail in its goal of providing “<i>certainty, clarity and fairness</i>”, by allowing debts and obligations to linger for 20 years without being pursued as early as possible.<br />
<br />
In relation to social security benefits, we believe there is no justification for not having all devolved and reserved benefits subject to the five year prescriptive period. It is inequitable that people have a month to appeal a benefit decision, while the DWP would have 20 years to pursue reserved benefit debts.<br />
<br />
GLC believes that the “<i>appropriate date</i>” for the start date of the running of the five year prescriptive period for consumer debts in terms of section 6 of the 1973 Act should start from the last payment made. This current law is set out in section 6 and schedule 2 of the 1973 Act and depends on whether the contract makes provision for when repayment is due, which failing when a written demand for repayment is made.<br />
<br />
We have a number of cases in court at present where old consumer credit debts have been sold by banks to debt collection companies, and we think the starting point for prescription for consumer debts should be simplified as the last payment made by the consumer. The alternative is the current position of highly technical arguments where the creditor can argue that a later start date applies, for example, when it demands full repayment – which can add an extra year or more to the <i>quinquennium.</i><br />
<i><br /></i>
GLC fully supports section 5 of the Bill which amends section 11 of the 1973 Act, and introduces a new "<i>discoverability test</i>'. Section 5 of the Bill would address the 2014 UKSC decision in <i>Morrison & Co Ltd v. ICL Plastics Ltd</i>, which established that the start date for prescription was when a pursuer knew they had suffered loss, injury or damage. This can result in unfairness when no-one knew who was culpable until some years later.<br />
<br />
Section 5 of the Bill would require additional knowledge in relation to the fault/negligence and identity of a defender before the prescriptive period can begin in a damages claim. We believe this represents practical common sense, and is a fair and reasonable approach. <br />
<br />
GLC argued that section 8 of the Bill should be deleted. There is no cogent case to change the law on when the 20 year prescriptive period begins. At present the period runs from the date of a pursuer's knowledge of a defender’s act or omission, however the Bill would run the period purely from the actual date of the act or omission. We have no difficulty with section 6 of the Bill in relation to removing interruptions to the 20 year prescriptive period.<br />
<br />
We have significant concerns over section 13 of the Bill, which would permit contracting out of the five prescriptive period by one year with a '<i>standstill agreement</i>'. Very often consumers in financial difficulty are in a weak and vulnerable position, and may not seek independent advice until the last moment, so we believe this provision could result in serious injustice in practice. We suggested a possible compromise that section 13 of the Bill should only engage where there is certification from a solicitor or accredited money advisor (in debt cases) that the consumer has taken independent legal advice and agrees to extend the five year prescriptive period.<br />
<br />
Mike Dailly was giving evidence on behalf of GLC, along with Mike Holmyard of Citizens Advice Scotland. The Committee's Stage 1 inquiry on the Bill is ongoing, with the Minister scheduled to appear before the Committee next week. Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-24930641684674697932018-04-11T14:35:00.001+01:002018-04-11T14:35:07.061+01:00Recruitment: Govan Law Centre seeks qualified solicitors to join our Glasgow legal team<a href="https://3.bp.blogspot.com/-e68Q5Cfr8ZI/UYDtvMIRdOI/AAAAAAAABI4/Vr8-4gxZQ8089AVcqnaWYqkPN625r-agQCPcBGAYYCw/s1600/JRimage.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="349" data-original-width="623" height="112" src="https://3.bp.blogspot.com/-e68Q5Cfr8ZI/UYDtvMIRdOI/AAAAAAAABI4/Vr8-4gxZQ8089AVcqnaWYqkPN625r-agQCPcBGAYYCw/s200/JRimage.jpg" width="200" /></a><span style="color: black; font-family: inherit;">Govan Law Centre (GLC) seeks qualified solicitors to join our Glasgow legal team. <span style="color: black; font-family: inherit;">We are seeking solicitors with civil court/tribunal experience. We offer the opportunity to develop your legal career, undertake contentious/novel litigation, and utlise innovative client solutions as we expand our legal services across Glasgow and Scotland.</span></span><br />
<span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"></span></span><br />
<span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;">Experience in the fields of housing, homelessness, and public law would be an advantage. <span style="color: black; font-family: inherit;">These are full time posts, however, job sharing will be considered. <span style="color: black; font-family: inherit;">These positions will be based in our Govan HQ, and will include provision of a variety of legal advice and representation for clients in terms of mainly housing, mortgage arrears and homelessness. It will also involve providing legal representation at court. </span></span></span></span><br />
<span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"></span></span></span></span><br />
<span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;">The successful candidates must:</span></span></span></span></span></span><br />
<ul>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Hold a degree in Scots Law</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">A diploma in legal practice</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">An unrestricted Law Society of Scotland practising certificate</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Have good research and analytical skills</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Ability to work well under supervision</span></li>
</ul>
<div style="margin: 0px 0px 0.5em; padding: 0px;">
<span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;"><span style="color: black; font-family: inherit;">It would be desirable if the candidates had:</span></span></span></div>
<ul>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Knowledge and experience of issues relating to social welfare law</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Experience in appearing in court or tribunal settings</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Experience in dealing with vulnerable clients</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Experience in handling a large and varied workload</span></li>
<li style="margin: 0px 0px 0.5em; padding: 0px;"><span style="color: black; font-family: inherit;">Experience in working within a team setting</span></li>
</ul>
<div style="-webkit-text-stroke-width: 0px; color: #474747; font-family: Helvetica, Arial, sans-serif; font-style: normal; font-variant-caps: normal; font-variant-ligatures: normal; font-weight: 400; letter-spacing: normal; margin: 0px 0px 1.2em; orphans: 2; padding: 0px; text-decoration-color: initial; text-decoration-style: initial; text-indent: 0px; text-transform: none; white-space: normal; widows: 2; word-spacing: 0px;">
<a href="https://3.bp.blogspot.com/-Xef-zQzIQr0/SkdzB_2Be9I/AAAAAAAABTk/QYAjAtPQGR0vVyFdujxi5Wi81GQcW7NOwCPcBGAYYCw/s1600/glclogo.gif" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="118" data-original-width="150" src="https://3.bp.blogspot.com/-Xef-zQzIQr0/SkdzB_2Be9I/AAAAAAAABTk/QYAjAtPQGR0vVyFdujxi5Wi81GQcW7NOwCPcBGAYYCw/s1600/glclogo.gif" /></a><span style="font-family: inherit;"><span style="color: black;">Please send a CV and covering letter explaining why you are interested in this position to: Candy Walker, Service Manager, Govan Law Centre, 18-20 Orkney Street, Glasgow, G51 2BX or by e-mail to<span> </span></span></span><a data-cke-saved-href="mailto:cwalker@govanlc.com" href="mailto:cwalker@govanlc.com" style="color: #777777; margin: 0px; padding: 0px;" target="_blank"><span style="color: black; font-family: inherit;">cwalker@govanlc.com</span></a><span style="color: black; font-family: inherit;">. <span style="font-family: inherit;"><span style="color: black;"><strong style="margin: 0px; padding: 0px;">CLOSING DATE: FRIDAY 27<span style="font-size: small;"><sup style="margin: 0px; padding: 0px;">TH</sup>APRIL 2018 AT 12 NOON. <span style="font-family: inherit;"><span style="color: black;"><strong style="margin: 0px; padding: 0px;">Any applications received after the closing date will not be considered.</strong></span></span></span></strong></span></span></span></div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-61987472819755532972018-04-10T12:52:00.002+01:002018-04-10T12:52:55.824+01:00Scots lawyers should face ethics action over shell firm abuseHere, Govan Law Centre's Principal Solicitor, Mike Dailly, argues that much more must be done to tackle the misuse of Scottish Limited Partnerships as shell firms in Scotland. See also today's (Tuesday, 10 April 2018) news story in The Herald, "<em><a href="http://www.heraldscotland.com/news/homenews/16147471.Scots_lawyers_should_face_ethics_action_over_shell_firm_abuse/" target="_blank">Scots lawyers should face ethics action over shell firm abuse</a></em>".<br />
<br />
<div class="yiv6695808097MsoNormal" id="yui_3_16_0_ym19_1_1523356662940_41478" style="background-color: white; color: black; display: block; font-family: "helvetica neue" , "segoe ui" , "helvetica" , "arial" , "lucida grande" , sans-serif; font-style: normal; font-weight: 400; letter-spacing: normal; margin: 0px; padding: 0px; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;">
<span id="yui_3_16_0_ym19_1_1523356662940_41477"><span style="font-family: inherit;"><span id="yui_3_16_0_ym19_1_1523356662940_41479" style="line-height: 19.16px;">When the Panama Papers scandal broke two years ago, few would have thought such murkiness would wash up on the shores of Scotland.</span><span style="line-height: 19.16px;"> </span><span id="yui_3_16_0_ym19_1_1523356662940_41476" style="line-height: 19.16px;">The use and abuse of shell companies to facilitate massive tax evasion, money laundering and organised crime didn’t happen here.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Or so we thought.</span><span style="line-height: 19.16px;"> </span></span></span></div>
<div class="yiv6695808097MsoNormal" id="yui_3_16_0_ym19_1_1523356662940_41475" style="background-color: white; color: black; display: block; font-family: "helvetica neue" , "segoe ui" , "helvetica" , "arial" , "lucida grande" , sans-serif; font-style: normal; font-weight: 400; letter-spacing: normal; line-height: 17.25px; margin: 0px; padding: 0px; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;">
<span id="yui_3_16_0_ym19_1_1523356662940_41474"><span style="font-family: inherit;"><span id="yui_3_16_0_ym19_1_1523356662940_41473" style="line-height: 19.16px;"></span></span></span><br />
<a href="https://2.bp.blogspot.com/-VeWfsYD7Fsc/WsylD5nAInI/AAAAAAAAB2A/W05FzvW6wEI_bjuaRqlFrF0Pei8kF71jgCLcBGAs/s1600/Scotland_SLPs.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="608" data-original-width="662" height="183" src="https://2.bp.blogspot.com/-VeWfsYD7Fsc/WsylD5nAInI/AAAAAAAAB2A/W05FzvW6wEI_bjuaRqlFrF0Pei8kF71jgCLcBGAs/s200/Scotland_SLPs.JPG" width="200" /></a><span style="font-family: inherit;"><span style="line-height: 19.16px;">A naïve belief that Scotland was somehow beyond the shady world of global finance and international crime has been shattered by good investigative journalism from The Herald, confirming that we are not so different to Panama.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">The reality is that no country in the world is immune from international crime.</span><span style="line-height: 19.16px;"> </span><span id="yui_3_16_0_ym19_1_1523356662940_41485" style="line-height: 19.16px;">But that doesn’t mean to say we should make it easy for fraudsters.</span></span></div>
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<span id="yui_3_16_0_ym19_1_1523356662940_41487"><span style="font-family: inherit;"><span id="yui_3_16_0_ym19_1_1523356662940_41486" style="line-height: 19.16px;"></span></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">While Scottish Limited Partnerships (SLPs) have been a respected and legitimate business model for over a century, this vehicle has now been car-jacked by those with something to hide. </span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">In the four years before 2016, the number of SLPs registered in Scotland increased by 237%, while those registered elsewhere in the UK increased by 43%.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">16,461 new SLPs were registered at just 10 addresses in Scotland.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Something was happening.</span></span></div>
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<span id="yui_3_16_0_ym19_1_1523356662940_41470"><span style="font-family: inherit;"><span id="yui_3_16_0_ym19_1_1523356662940_41469" style="line-height: 19.16px;"></span></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">The attraction of SLPs is a combination of their secrecy and separate legal persona in law.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Unlike in England, a SLP is a legal entity in its own right that can enter into contracts, own and control assets.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">As a partnership it is ‘</span><i style="line-height: 19.16px;">tax transparent</i><span style="line-height: 19.16px;">’ so only the partners are taxed as individuals, and no accounts need be filed with Companies House.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Until last year, the owners of a SLP were entitled to secrecy.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">In short, it was the perfect partner to a shell company in Panama City.</span></span></div>
<div class="yiv6695808097MsoNormal" id="yui_3_16_0_ym19_1_1523356662940_41491" style="background-color: white; color: black; display: block; font-family: "helvetica neue" , "segoe ui" , "helvetica" , "arial" , "lucida grande" , sans-serif; font-style: normal; font-weight: 400; letter-spacing: normal; line-height: 17.25px; margin: 0px; padding: 0px; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;">
<span id="yui_3_16_0_ym19_1_1523356662940_41490"><span style="font-family: inherit;"><span id="yui_3_16_0_ym19_1_1523356662940_41489" style="line-height: 19.16px;"></span></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">Responding to growing concern over the abuse of SLPs for criminal activity, the UK Government introduced new transparency regulations last June requiring SLPs to disclose the identity of “</span><i style="line-height: 19.16px;">people with significant influence or control</i><span style="line-height: 19.16px;">” (PSCs) over them. </span><span style="line-height: 19.16px;"> </span><span id="yui_3_16_0_ym19_1_1523356662940_41492" style="line-height: 19.16px;">Companies House maintains a register of PSCs, and it was thought that removing the secrecy of SLPs would dissuade those with unlawful intentions.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">However, many partners of SLPs routinely flout these new regulations. </span><span style="line-height: 19.16px;"> </span></span></div>
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<span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">We must do much more to tackle this problem in Scotland.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">While SLPs and company law is generally reserved to Westminster, the regulation of Scotland’s professions isn’t.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Why should Scottish solicitors, accountants and others act for SLPs who flout the law?</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">Simply explaining that the responsibility for compliance with transparency regulations rests with the SLP isn’t good enough.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">This should be a matter of professional conduct and ethics.</span></span></div>
<div class="yiv6695808097MsoNormal" id="yui_3_16_0_ym19_1_1523356662940_41495" style="background-color: white; color: black; display: block; font-family: "helvetica neue" , "segoe ui" , "helvetica" , "arial" , "lucida grande" , sans-serif; font-style: normal; font-weight: 400; letter-spacing: normal; line-height: 17.25px; margin: 0px; padding: 0px; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;">
<span id="yui_3_16_0_ym19_1_1523356662940_41494"><span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">For example, it isn’t in the public interest for Scottish solicitors to continue to provide services and/or host SLPs who ignore transparency regulations.</span><span style="line-height: 19.16px;"> </span><span id="yui_3_16_0_ym19_1_1523356662940_41493" style="line-height: 19.16px;">There is a very real risk that continuing to act for SLPs with something to hide will damage the public interest and reputation of the legal profession in Scotland.</span><span style="line-height: 19.16px;"> </span></span></div>
<div class="yiv6695808097MsoNormal" style="background-color: white; color: black; display: block; font-family: "helvetica neue" , "segoe ui" , "helvetica" , "arial" , "lucida grande" , sans-serif; font-style: normal; font-weight: 400; letter-spacing: normal; line-height: 17.25px; margin: 0px; padding: 0px; text-indent: 0px; text-transform: none; white-space: normal; word-spacing: 0px;">
<span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">There is nothing to prevent the Law Society of Scotland introducing a professional conduct rule to prohibit a Scottish solicitor from acting for a SLP who fails to demonstrate compliance with the transparency regulations.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">It should be a matter of professional ethics.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">The power to do so exists under section 34 of the Solicitors (Scotland) Act 1980.</span><span style="line-height: 19.16px;"> </span></span></div>
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<span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">Scottish law firms could be required to declare the number of SLPs they act for on a six monthly basis, and give a declaration they are satisfied the SLP has complied with the transparency rules. The professional regulatory bodies for accountants and other professionals could easily do likewise using conduct rule making powers.</span><span style="line-height: 19.16px;"> </span></span></div>
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<span id="yui_3_16_0_ym19_1_1523356662940_41511"><span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">No professional in Scotland should act for a SLP flouting the 2017 transparency regulations. </span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">To do so should give rise to professional misconduct.</span><span style="line-height: 19.16px;"> </span><span style="line-height: 19.16px;">If regulatory bodies in Scotland are unwilling to do more to combat the misuse of SLPs then there is nothing to stop the Scottish Parliament from legislating. </span><span style="line-height: 19.16px;"> </span><span id="yui_3_16_0_ym19_1_1523356662940_41510" style="line-height: 19.16px;">Govan Law Centre offers its support to MSPs in framing an appropriate member’s bill, if so required. </span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;"></span></span><br />
<span style="font-family: inherit;"><span style="line-height: 19.16px;">* <em><a href="http://www.heraldscotland.com/opinion/16147483.Agenda__Scots_firms_should_stop_giving_legal_help_to_SLPs/?ref=twtrec" target="_blank">This commentary first appeared in The Herald</a></em>.</span></span></div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-84133628438849927552018-01-27T11:04:00.002+00:002018-01-27T11:04:24.292+00:00Govanhill Law Centre persuades local authority to treble rate of pay for overnight care workers<a href="https://www.unison.org.uk/content/uploads/2015/12/151204-SaveCareNow-hands1-745x420.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="336" data-original-width="745" height="123" src="https://www.unison.org.uk/content/uploads/2015/12/151204-SaveCareNow-hands1-745x420.jpg" width="220" /></a><span style="font-family: inherit;">Govanhill Law Centre has been successful in persuading a local authority in Scotland to almost treble its rate of pay for overnight "sleepover care". A self-directed care funding package had made provision for £3.51 per hour gross pay for overnight care workers - £3.03 per hour net. That figure has now been revised to £9.38 per hour in a disabled person's care package. </span><span style="font-family: inherit;">The funding package had previously made no provision for the cost of paying the National Minimum Wage (NMW) to carers providing overnight care. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">The requirement to pay the NMW is a statutory right is set out in the National Minimum Wage Act 1998, as amended, and the National Minimum Wage Regulations 2015. The NMW from April 2017 was £7.50 per hour (£8.54 gross), for those aged 25 and over. It will be £7.83 per hour net from April 2018. </span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">The local authority's position was that funding for overnight care was being considered nationally by local authorities in discussion with the Scottish Government. In dismissing the client's complaint pursued by Govanhill Law Centre's senior solicitor Laura Simpson, the council argued that "<i>it would not be fair or equitable to increase funding to your client alone</i>". </span><br />
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<a href="https://2.bp.blogspot.com/-rYPpHbGWA5Y/S82c1pOtlMI/AAAAAAAABTM/ou38rKoM0gUBGcWt6x49vx7T05ZeNqZrgCPcBGAYYCw/s1600/govanhill_logo.gif" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="418" data-original-width="609" height="136" src="https://2.bp.blogspot.com/-rYPpHbGWA5Y/S82c1pOtlMI/AAAAAAAABTM/ou38rKoM0gUBGcWt6x49vx7T05ZeNqZrgCPcBGAYYCw/s200/govanhill_logo.gif" width="200" /></a><span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">A petition for judicial review was drafted in-house by Govan Law Centre's Principal Solicitor to challenge the local authority's decision in the Court of Session in relation to the relevant law. The petition sought reduction of the local authority's decision as <i>ultra vires</i> and illegal. However, the local authority chose to review and increase its rate of pay above the NMW rate while the petition was sisted at the Court of Session pending determination of a full civil legal application.</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;">The petitioner's position was that overnight carers were entitled to the NMW having regard to <i>Whittlestone v. BJP Home Support Limited</i> [2014] I.C.R 275, and <i>J Esparon t/a Middle West Residential Care Home v. Slavikovska </i>[2014] I.C.R. 1037.; and <i>Wright v Scottbridge Construction Ltd </i>2003 SC 520, where the Inner House of the Court of Session held that for the purpose of Regulation 3 of the National Minimum Wage Regulations 1999 where an employee was contractually required to be at a work throughout a shift, the entire period of the shift was “time work” for the purpose of Regulation 3.</span><br />
<br />Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-56987170370435477772017-12-01T11:45:00.002+00:002017-12-01T13:00:05.432+00:00Blog: The Rome I Regulation & Scottish consumer contracts<a href="https://4.bp.blogspot.com/-axBIW4GyUBY/WiFAEhSucoI/AAAAAAAAB1M/VTWZqzjOIbcUmjAK9PgVHA2DGq5AgIyrwCLcBGAs/s1600/Screen%2BShot%2B2017-12-01%2Bat%2B11.41.35.png" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="246" data-original-width="324" height="151" src="https://4.bp.blogspot.com/-axBIW4GyUBY/WiFAEhSucoI/AAAAAAAAB1M/VTWZqzjOIbcUmjAK9PgVHA2DGq5AgIyrwCLcBGAs/s200/Screen%2BShot%2B2017-12-01%2Bat%2B11.41.35.png" width="200" /></a><i><span style="color: #0b5394;">Here our Principal Solicitor, Mike Dailly, blogs on whether an English law governing clause can oust Scots law rights in consumer contracts in Scotland.</span></i><br />
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It is not uncommon for consumer contracts to contain a clause stipulating what law will apply to the agreement in the event of a legal dispute. These are known as <span style="font-family: inherit;">“<em style="background-position: 0px 0px; border: 0px; box-sizing: inherit; font-size: 0.975em; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">governing law clauses</em>”</span>. But what happens if you live in Scotland – which has its own distinctive Roman law based legal system and jurisdiction - but your contract has a clause saying it is “<em style="background-position: 0px 0px; border: 0px; box-sizing: inherit; font-size: 0.975em; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;"><span style="font-family: inherit;">governed by the law of England</span></em>”?<br />
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For example you are ordinarily resident (domiciled) in Scotland but your credit card, loan agreement, or bank account says it is governed by the law of England? This may seem academic for two obvious reasons. First, the <a href="http://www.legislation.gov.uk/ukpga/1982/27/schedule/8" target="_blank">Civil Jurisdiction and Judgments Act 1982</a> prevents a UK business raising court proceedings in England against a consumer domiciled in Scotland for consumer disputes. Second, most of modern consumer protection and financial services law is UK law (much of which derives from the implementation of EU Directives), so does it really matter if a consumer contract in Scotland has an English law governing clause?<br />
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Actually, yes it does matter. In short, because there are many historical and substantive differences in contract and debt law between England and Scotland. Moreover, these areas of law are devolved to the Scottish Parliament, and such distinctions have increased since 1999. To take but one example, from a court action I am currently dealing with at Govan Law Centre.<br />
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It is commonplace for international and domestic companies to purchase defaulting UK consumer credit debts from banks, and regulated credit card and loan providers. The purchaser buys the debt at a heavily discounted price, in exchange for assuming all of the risk in recovering some or all of the debt.<br />
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In my example case, a debt recovery company (“DRC”) bought a debt from MBNA (the bank that stood behind the Virgin credit card). The last payment from the consumer was in June 2012. The DRC buys the debt, and instruct Scottish solicitors who raise and intimate sheriff court proceedings in September this year. The last acknowledgment of the debt was over 5 years ago, and as <a href="https://www.legislation.gov.uk/ukpga/1973/52/section/6" rel="nofollow noopener" style="background-position: 0px 0px; border: 0px; box-sizing: inherit; color: #827be9; margin: 0px; padding: 0px; text-decoration: none; vertical-align: baseline; word-wrap: break-word;" target="_blank">section 6</a> of the Prescription and Limitation (Scotland) Act 1973 creates a 5-year time bar for recovering such debts, you might think, the DRC is too late here. The court proceedings are incompetent, as the debt has prescribed under Scots law.<br />
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However, the consumer credit agreement contains an English governing law clause, and debts do not generally prescribe in English law for six years. Thus the DRC’s lawyers reasonably argue that as English law applies to this contract, the debt hasn’t prescribed in law. But does English law apply to a consumer contract where the consumer is habitually resident and domiciled in Scotland?<br />
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I think the answer may require an international<span style="font-family: inherit;"> <span style="background-position: 0px 0px; border: 0px; box-sizing: inherit; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;"><i>paper chase</i></span></span>, which goes something like this. The defender is a consumer and the credit agreement was a consumer contract for the purpose of the <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008R0593&from=EN" rel="nofollow noopener" style="background-position: 0px 0px; border: 0px; box-sizing: inherit; color: #827be9; margin: 0px; padding: 0px; text-decoration: none; vertical-align: baseline; word-wrap: break-word;" target="_blank">“Rome I Regulation”</a>, Regulation (EC) No. 593/2008. Article 6 of the Rome I Regulation, provides as follows:<br />
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“<span style="color: #444444;"><b>Article 6 </b><o:p></o:p></span></div>
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<span style="color: #444444;"><br /></span></div>
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<b><span style="color: #444444;">Consumer contracts </span></b><o:p></o:p></div>
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1. Without prejudice to Articles 5 and 7, a contract
concluded by a natural person for a purpose which can be regarded as being
outside his trade or profession (the consumer) with another person acting in
the exercise of his trade or profession (the professional) shall be governed by
the law of the country where the consumer has his habitual residence, provided
that the professional:<o:p></o:p></div>
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(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or</div>
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(b) by any means, directs such activities to that country or
to several countries including that country, </div>
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and the contract falls within the
scope of such activities. <o:p></o:p></div>
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2. Notwithstanding paragraph 1, the parties may choose the
law applicable to a contract which fulfils the requirements of paragraph 1, in
accordance with Article 3. Such a choice may not, however, have the result of
depriving the consumer of the protection afforded to him by provisions that
cannot be derogated from by agreement by virtue of the law which, in the
absence of choice, would have been applicable on the basis of paragraph
1".<o:p></o:p></div>
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While Article 22 of the Rome I Regulation does not oblige EU
member states to apply Rome I to conflicts between the different laws of
countries within a member state, it leaves this option open. And the UK and
Scottish Parliament applies Rome I to internal UK governing law conflicts. Regulation 4 of The Law Applicable to Contractual Obligations
(Scotland) Regulations 2009 (SSI 2009/410) extends the application of the Rome
I Regulation (with the exception of Article 7 (insurance contracts) with are
dealt with separately) to conflicts solely between the laws of Scotland,
England and Wales and Northern Ireland and Gibraltar. Regulation 4
provides: <o:p></o:p></div>
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<br /></div>
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“<b><span style="color: #444444;">4. Conflicts falling
within Article 22(2) of Regulation (EC) No. 593/2008</span></b><o:p></o:p></div>
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Notwithstanding Article 22(2) of <a href="http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32008R0593&from=EN" target="_blank">Regulation (EC) No.593/2008</a> of the European Parliament and of the Council on the law applicable to
contractual obligations (Rome I), that Regulation shall, with the exception of
Article 7 (insurance contracts)1 , apply in the case of conflicts between— (a)
the laws of different parts of the United Kingdom, or (b) the laws of one or
more parts of the United Kingdom and Gibraltar, as it applies in the case of
conflicts between the laws of other countries”. <o:p></o:p></div>
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We have more paper chasing because the effect of <a href="http://www.legislation.gov.uk/ssi/2009/410/regulation/4/made" target="_blank">Regulation4</a> is to apply the Rome I Regulation to conflicts between different parts of the
UK in contractual obligation cases. Thus a credit card agreement can choose -
with the consent of the consumer by signing it - English law. The Rome I
Regulation is then engaged. And on the face of it, <a href="https://www.legislation.gov.uk/ukpga/1973/52/section/23A" target="_blank">section 23A</a> of the
Prescription and Limitation (Scotland) Act 1973, requires the Scottish courts
to respect that choice for prescription issues. <o:p></o:p></div>
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However, s<a href="http://www.legislation.gov.uk/ssi/2009/410/note/made" target="_blank">ection 23A(4) disapplies section 23A</a> where Rome I
is engaged, as would occur in our example case where English law is chosen to
govern a Scottish consumer contract. However, the journey does not end there,
because as we have seen Article 6.2 of Rome I prevents a consumer from losing statutory
protections in their country of habitual residence which they would have
enjoyed had the business not chosen a different law. So if a defender is a
consumer who had their habitual residence in Scotland when the contract was
concluded, English law can be chosen. <o:p></o:p></div>
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However, the Scottish consumer would still be entitled to
enjoy the five year time period under the Prescription and Limitation
(Scotland) Act 1973. A consumer protection that exists in Scotland is preserved
by virtue of Article 6.2 of Rome I. All of which would mean the DPC can't rely
on an English law six year time bar period for pursuing a debt in a Scottish
consumer contract. As this point looks set to be debated at Glasgow Sheriff
Court, hopefully an answer to this interesting paper chase will be available
shortly.</div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-31498680085483963152017-11-28T14:00:00.001+00:002017-11-28T14:02:24.132+00:00Tackling rough sleeping this winter: new actions in Scotland welcomed by Govan Law Centre<a href="http://www.eveningtimes.co.uk/resources/images/6607487.jpg?display=1&htype=0&type=responsive-gallery" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" src="http://www.eveningtimes.co.uk/resources/images/6607487.jpg?display=1&htype=0&type=responsive-gallery" data-original-height="443" data-original-width="650" height="183" width="256" /></a>Govan Law Centre (GLC) has welcomed new actions announced today by the First Minister to further tackle rough sleeping this winter. The actions were recommended by the Scottish Government’s Homelessness and Rough Sleeping Action Group (HARSAG).<br />
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Today's announcement is backed by an initial £328,000 worth of investment from government and group members, including an additional caseworker/solicitor in Glasgow provided by Govan Law Centre.<br />
<br />
Measures include increasing emergency accommodation and support in areas with the greatest numbers of rough sleepers, making personal budgets available to front line workers to meet immediate housing needs, and supporting greater use of the emergency Nightstop service.<br />
<br />
HARSAG member, and GLC's Principal Solicitor, Mike Dailly said: "No-one should have to sleep rough this winter and these additional resources will make a real difference. All public and third sector agencies have a part to play this winter if we are to realise the ambition of making rough sleeping rare and unnecessary in Scotland. This is a key step towards delivering the First Minister’s commitment to eradicating rough sleeping in Scotland".<br />
<br />
<a href="https://3.bp.blogspot.com/-5jRsYIp0e_I/Wh1rRP2y19I/AAAAAAAAB0o/_Z5xYw9RILQDgYGsYUfVap0hqdvJcFlDgCLcBGAs/s1600/HARSAG-img.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 2em; margin-right: 2em;"><img border="0" data-original-height="401" data-original-width="678" height="118" src="https://3.bp.blogspot.com/-5jRsYIp0e_I/Wh1rRP2y19I/AAAAAAAAB0o/_Z5xYw9RILQDgYGsYUfVap0hqdvJcFlDgCLcBGAs/s200/HARSAG-img.JPG" width="200" /></a>Further details of the new actions for this winter are <a href="https://beta.gov.scot/publications/homelessness-rough-sleeping-recommendations/" target="_blank"><b>available here</b></a>, and include:<br />
<ul>
<li>Increased emergency accommodation in Edinburgh, and increased outreach capacity in Edinburgh, Glasgow, and Aberdeen</li>
<li>Multi-agency partnership working boosted, adopting ‘by name lists’ and empowering front line workers through direct access to services and dedicated accommodation</li>
<li>Making personal budgets and/or flexible emergency fund available for front line staff to employ where maximum flexibility is required to meet immediate housing needs</li>
<li>At times of extreme weather, ensure flexible provision is available in Edinburgh and Glasgow for anyone who will not use winter night shelters, despite all efforts</li>
<li>Maximise use of Nightstop – which provide young people with emergency accommodation for up to 2 weeks in the homes of approved volunteers – in Edinburgh and support implementation in Glasgow by January 2018</li>
</ul>
<ul>
</ul>
<ul>
</ul>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-31556852462586441952017-11-21T00:52:00.001+00:002017-11-21T01:06:02.854+00:00Inner House declares ‘Sword of Damocles’ contractual term unlawful: GLC Public Interest Litigation Unit <a href="https://3.bp.blogspot.com/-e68Q5Cfr8ZI/UYDtvMIRdOI/AAAAAAAABI4/Vr8-4gxZQ8089AVcqnaWYqkPN625r-agQCPcBGAYYCw/s1600/JRimage.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="349" data-original-width="623" height="112" src="https://3.bp.blogspot.com/-e68Q5Cfr8ZI/UYDtvMIRdOI/AAAAAAAABI4/Vr8-4gxZQ8089AVcqnaWYqkPN625r-agQCPcBGAYYCw/s200/JRimage.jpg" width="200" /></a><span style="background-color: white; font-family: inherit;">A homeowner involved in a legal dispute with a Scottish local authority has won his appeal after arguing the council acted beyond its powers in imposing a condition to an award of grant assistance, which required homeowners to pay their share of the cost of repairs by the time the final account for works was issued or lose all grant assistance.</span><br />
<br />
<span style="font-family: inherit;"><span style="background-color: white; font-family: inherit;">Judges in the Inner House of the Court of Session allowed an appeal by a homeowner</span><span style="background-color: white;"><span style="font-family: inherit;">, who argued tha<span style="font-family: inherit;">t Glasgow City Council, in imposing a “pre-payment condition” as a term of grant assistance, acted<i> ultra vires</i> of its powers in terms of Part 2 of the Housing (Scotland) Act 2006. Lord Malcolm</span><span style="background-color: white;"> and </span><span style="font-family: inherit;">Lord Glennie</span><span style="background-color: white;"> heard that the homeowner co-owned a flat in Govanhill, Glasgow, with his wife.</span></span><br />
<span style="font-family: inherit;"><br /></span>
<span style="background-color: white; font-family: inherit;">Following a survey of properties in the area, in April 2011 the council served a work notice on the owners of the flats stating that their tenement building in Langside Road was in “disrepair” and that certain repair works required to be carried out to put right a number of defects.</span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;"><span style="background-color: white;">For the petitioner </span><span style="font-family: inherit;">solicitor </span><span style="font-family: inherit;">advocate</span><span style="font-family: inherit;"> Mike Dailly</span><span style="background-color: white;"> argued that there was nothing in Part 2 of the 2006 Act relating to the provision of grants which allowed the council to impose a “pre-payment condition” as a condition of a grant, failing compliance with which the grant would be revoked. </span><span style="background-color: white;">Such a condition was “contrary to the policy objective” of part 2 and was not mentioned in the council's policy statement on assistance. </span><span style="background-color: white;">It was argued that as the council had made a decision to award the petitioner a 75% grant for the cost of repairs, it could not be withdrawn on the basis of the imposition of a condition which was <i>ultra vires</i>.</span></span><br />
<span style="font-family: inherit;"><br /></span>
<span style="font-family: inherit;"><span style="font-family: inherit;"><span style="background-color: white;">On behalf of the council, Gavin MacColl Q.C submitted that the pre-payment condition of the grant was </span><em style="color: #505050; font-family: Arial; font-size: 14px;">intra vires</em><span style="background-color: white;">, being permitted in terms of sections 74(4) and 81(1)(d) of the Act, and that it was imposed for a relating to Part of the Act - to encourage people to pay their share of the cost of repairs. </span></span><span style="background-color: white; font-family: inherit;">However, the appeal judges ruled that the pre-condition did not fairly or reasonably relate to the grant and that it “goes well beyond what is legitimate”.</span><br />
<span style="font-family: inherit;"><br style="color: #505050; font-family: Arial; font-size: 14px;" /></span>
<span style="background-color: white; font-family: inherit;">The judges also observed that it seemed to be “counter-intuitive” that an individual who had been found to be eligible for a mean-tested grant of 75% of the costs of the work should have the availability of that grant made subject to a condition with which he would “almost certainly find it difficult, if not impossible, to comply”.</span><span style="background-color: white; font-family: inherit;"><br /></span>
<br />
<table cellpadding="0" cellspacing="0" class="tr-caption-container" style="float: right; text-align: right;"><tbody>
<tr><td style="text-align: center;"><a href="http://www.scotland-judiciary.org.uk/Upload/Images/Thumbnails/thumb_Lord_Glennie_01.jpg.axd?width=128" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" src="http://www.scotland-judiciary.org.uk/Upload/Images/Thumbnails/thumb_Lord_Glennie_01.jpg.axd?width=128" data-original-height="192" data-original-width="128" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Rt Hon Lord Glennie</td></tr>
</tbody></table>
<span style="background-color: white; font-family: inherit;">Delivering the<b> </b></span><a href="https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2017csih69.pdf?sfvrsn=0" style="font-family: inherit;" target="_blank"><b>opinion of the court</b></a><span style="background-color: white; font-family: inherit;">, Lord Glennie said: “It may be intended as a kind of sword of Damocles, hanging over the owner of the property to encourage him to pay the sum due from him for his share of the cost of the repairs. But, if activated, the effect goes much wider than enforcing payment of the sums already due; it takes away the whole of his grant. </span><br />
<span style="font-family: inherit;"><br style="color: #505050; font-family: Arial; font-size: 14px;" /></span>
<span style="background-color: white; font-family: inherit;">“The grant itself, and the threat to withhold it if the non-grant part of the cost is not paid in full and on time, is being used as a lever, a stick, to encourage payment by the owner of the part of the repair cost which he already is under an obligation to pay. This is not a condition which is attached to the grant for the purposes of the grant – to make sure that it is properly applied, that the work is carried out satisfactorily, or whatever". </span></span></span></span><br />
<span style="font-family: inherit;"><span style="background-color: white;"><span style="font-family: inherit;"><span style="background-color: white; font-family: inherit;"><br /></span></span></span></span>
<span style="font-family: inherit;"><span style="background-color: white;"><span style="font-family: inherit;"><span style="background-color: white; font-family: inherit;">"It is attached to the grant for the purpose of ensuring payment of other sums which are and have always been the responsibility of the owner of the property. In those circumstances we consider that the pre-condition goes much further than is justified in terms of the Act. It is <i>ultra vires </i>the council.”</span></span></span></span>Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-58281231573539447312017-11-15T08:45:00.000+00:002017-11-15T09:05:38.796+00:00Celebrating financial capability in Scotland <div class="separator" style="clear: both; text-align: center;">
<a href="https://4.bp.blogspot.com/-X7krw8vwzIg/Wgv6yrlQWiI/AAAAAAAAB0M/hFcHdLL2Xk86PyiwRlHp5Yh2b97KInP6wCLcBGAs/s1600/talkmoney.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="627" data-original-width="1200" height="114" src="https://4.bp.blogspot.com/-X7krw8vwzIg/Wgv6yrlQWiI/AAAAAAAAB0M/hFcHdLL2Xk86PyiwRlHp5Yh2b97KInP6wCLcBGAs/s200/talkmoney.jpg" width="220" /></a></div>
Last night stakeholders and guests at the Scottish Parliament celebrated financial capability work taking place across Scotland, as part of UK "Financial Capability Week". <br />
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The event was hosted by Ayrshire MSP, Ruth Maguire, and heard from Yvonne MacDermid, Chair of the Scottish Financial Capability Partnership, Govan Law Centre's Mike Dailly, Alison Hardie of Young Scot, Alison Watson of Shelter Scotland, Simon Watson of the Royal Bank of Scotland, Jonathan Baxter, Head Teacher and pupils from Flora Stevenson Primary School<br />
<br />
As part of #TalkMoneyScotland week, Govan Law Centre will be providing a free financial
capability and money advice session at Homes for Good, 97 Main Street in Glasgow’s Bridgeton this
Thursday 16 November 2017 from 10am to 3pm. No appointment is necessary.<br />
<br />
GLC's Principal Solicitor Mike Dailly said: "Good money skills are always key to resolving financial challenges and difficulties. But most importantly they are essential as a preventative tool: to avoid being scammed, fleeced, being hit with excessive fees and charges, borrowing at uncompetitive rates, buying financial products you don’t need or aren’t suitable for you, or ultimately just getting a bad deal as a consumer".<br />
<br />
"Key life events – for good or for bad – will affect all of us throughout our life and having some financial resilience and support can make an unbelievable difference in a crisis. Knowledge truly is power, and we are a point in time where we can make financial capability skills and knowledge freely and instantly accessible to consumers when they need it if we utlise new opportunities next year from Opening Banking and the new Payment Services Directive". <br />
<br />
Mike's talk is available here (<a href="http://www.govanlc.com/FinCap17.pdf" target="_blank">opens as a PDF</a>).Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-10845824734501154962017-11-10T18:18:00.000+00:002017-11-10T18:20:37.558+00:00Law as a tool for social change & justice: UK Law Centres Network 2017 annual conference <a href="https://2.bp.blogspot.com/-4ef9DQ1CVMc/WgXnW-tHS5I/AAAAAAAABz8/jbLfrjr_PKYFsa4Gx3XA8CCQE-KvzJtGgCLcBGAs/s1600/LCN1.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="684" data-original-width="715" height="191" src="https://2.bp.blogspot.com/-4ef9DQ1CVMc/WgXnW-tHS5I/AAAAAAAABz8/jbLfrjr_PKYFsa4Gx3XA8CCQE-KvzJtGgCLcBGAs/s200/LCN1.jpg" width="200" /></a>The annual conference of the UK Law Centres Network (LCN) took place for this first time in Glasgow this week, with representatives from law centres from Scotland, England and Northern Ireland in attendance.<br />
<br />
Conference was opened by Scottish Minister for Legal Affairs and Communities, Annabelle Ewing MSP, who also read a personal welcome note to delegates from Scotland's First Minister, Nicola Sturgeon MSP. <br />
<br />
Delegates were welcomed to a Civic Reception in Glasgow City Council by the Leader of the Council, Cllr Susan Aitken, and Depute Lord Provost, Cllr Philip Braat; and heard from the Dean of the Faculty of Advocates, Gordon Jackson Q.C. and former President of the Law Society of Scotland, Austin Lafferty.<br />
<br />
The two-day event took place over 9 and 10 November 2017, and included a wide ranging plenary discussion on the law as a tool for social change. Conference heard from Matthew Smerdon, Chief Executive of the Legal Education Foundation, and Annabel Davidson Knight of Collaborate and the University of Newcastle.<br />
<br />
GLC's Principal Solicitor, Mike Dailly addressing conference argued that unemployment, poverty, discrimination, poor
housing and destitution were never accidental. They were the product of political choices, and the politics of omission. In his view it was the job of law centres to campaign for
change, and until change happened, use the law as best as possible to mitigate
detriment to the communities law centres served. <a href="http://www.govanlc.com/LCNspeech1.pdf" target="_blank">Mike's speech to the LCN conference is available here</a> (opens as a PDF)Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-23630985982837708452017-11-02T15:18:00.002+00:002017-11-02T15:18:20.673+00:00People struggling to make ends meet will suffer from today's UK base rate rise<a href="https://static.independent.co.uk/s3fs-public/styles/article_small/public/thumbnails/image/2015/05/11/00/bank-of-england-afp-getty.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="465" data-original-width="620" height="192" src="https://static.independent.co.uk/s3fs-public/styles/article_small/public/thumbnails/image/2015/05/11/00/bank-of-england-afp-getty.jpg" width="256" /></a>The Monetary Policy Committee (MPC) of the Bank of England today voted 7-2 today to increase the UK base interest rate by 0.25% to 0.5%. What does this mean for those with problem debts in the UK? GLC's Mike Dailly believes there are a lot more losers than winners from the Bank's decision today.<br />
<br />
"The Money Advice Service estimates there are roughly 700,000 adults with problem debts in Scotland, with 8.3 million people struggling to cope financially across the UK. Those already on a financial knife-edge are the ones who will be tipped over, and this will ultimately result in defaults for credit cards, loans, mortgages and bills - with the extra charges that come with this - as consumer borrowing costs more, and those already squeezed can't cope".<br />
<br />
“Millions of people across the UK have had to borrow to cope with low wages over the last few years, the gig economy and exponential household prices for food and bills. A rate rise right can only tip them over the edge when they’re already seriously struggling and financially squeezed". <br />
<br />
"It’s fully understandable that the Bank of England wants to put a brake on inflation running at 3<em> per cent</em> this year. However, increasing the cost of borrowing won’t calm inflation. The reality is Scotland and the UK relies on imports, and you get inflation when the pound is devalued. It's down 13% since the Brexit referendum, and may get weaker still.” <br />
<br />
"While the Bank points to a historic 42 year low unemployment rate, this belies the fact real wages have been cut, and there is much more job insecurity and unpredictable pay with zero hours contracts. The cost of living has risen exponentially in the UK for utilities and food; in Scotland private sector rents have increase by 25% on average in the last 6 years, double the rate of inflation".<br />
<br />
"Increasing the base rate, means that millions of people already struggling to cope will have to pay more for their debt. We've had a 10% growth in consumer borrowing - now sitting at over £200bn - as people borrow at low rates to make up shortfalls from the real economy. It's fair to say, millions of people across the UK are now being hit twice; their incomes are cut due to the weak pound, and now their borrowings cost more because of the Bank's interest rate rise". <br />
<br />
"In reality, the economic circumstances which led to the Bank to cut interest rates to 0.25 last August haven't changed and there is no cogent monetary or economic basis for today's hike". Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-71446877625361501422017-10-07T09:41:00.003+01:002017-10-09T11:01:09.059+01:00Is the buy-to-let market a property bubble waiting to burst? <a href="http://www.heraldscotland.com/resources/images/5933675.jpg?display=1&htype=0&type=responsive-gallery" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="http://www.heraldscotland.com/resources/images/5933675.jpg?display=1&htype=0&type=responsive-gallery" data-original-height="131" data-original-width="650" height="58" width="288" /></a><span style="color: #292b2c; font-family: "noto" serif , serif;"><span style="font-family: inherit;"><span style="line-height: inherit;">GLC's Principal Solicitor, Mike Dailly </span><span style="font-size: 17px;"><span style="font-size: small;">writes:</span> "</span><span style="line-height: inherit;">SCOTLAND’S private rented sector is a phenomenon. It has trebled in size over the last 15 years and now makes up over 15 per cent of all Scottish households. For our cities the story is more profound. </span></span></span><br />
<span style="color: #292b2c; line-height: inherit;"><br /></span><span style="font-family: inherit;">
<span style="color: #292b2c; line-height: inherit;">Scotti</span><span style="line-height: inherit;">sh</span><span style="line-height: inherit;"> </span><span style="color: black;">Government<span style="line-height: inherit;"> </span><span style="line-height: inherit;">figures published last month show that private lets represent 19 per cent of all homes in</span><span style="line-height: inherit;"> </span>Glasgow<span style="line-height: inherit;">,</span><span style="line-height: inherit;"> </span>Edinburgh<span style="line-height: inherit;"> </span><span style="line-height: inherit;">and Perth. For</span><span style="line-height: inherit;"> </span>Dundee<span style="line-height: inherit;"> </span><span style="line-height: inherit;">the figure rises to 23 per cent and peaks at 26 per cent in Edinburgh.</span></span></span><br />
<span style="line-height: inherit;"><br /></span><span style="font-family: inherit;">
<span style="line-height: inherit;">How did this happen? Almost half a million homes have been lost from</span><span style="line-height: inherit;"> </span>Scotland<span style="line-height: inherit;">’s social rented sector since the right to buy was introduced in 1980. While the Scottish</span><span style="line-height: inherit;"> </span><span style="color: black;">Parliament<span style="line-height: inherit;"> </span></span><span style="color: #292b2c; line-height: inherit;">ended that right last July, the impact coupled with the growth of the buy-to-let mortgage market has fuelled the private let sector". <a href="http://www.heraldscotland.com/business_hq/personal_finance/15582550.Mike_Dailly__Are_you_ready_for_the_private_lets_bubble_to_burst_/" target="_blank">Read the full column in The Herald here</a> (Saturday, 7 October 2017).</span></span>Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-43407144648057124912017-10-06T12:34:00.004+01:002017-10-06T12:34:52.351+01:00GLC's Principal Solicitor appointed to Scottish Government's Homelessness & Rough Sleeping Action Group<a href="https://3.bp.blogspot.com/-Eshg1ssAri8/Wddpzb-AnlI/AAAAAAAABwU/WtumVkzS5B4vWAJkqfdgs58L6M2KwdMeACLcBGAs/s1600/Homelessness-Action-Group.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="997" data-original-width="1600" height="158" src="https://3.bp.blogspot.com/-Eshg1ssAri8/Wddpzb-AnlI/AAAAAAAABwU/WtumVkzS5B4vWAJkqfdgs58L6M2KwdMeACLcBGAs/s320/Homelessness-Action-Group.jpg" width="256" /></a>A panel of homelessness experts from across Scotland met for the first time yesterday (5 October 2017) as work to address the challenges of rough sleeping, and how temporary accommodation can best be utilised, officially got underway.<br />
<br />
Announced as part of the <a href="http://www.scottishhousingnews.com/17084/new-working-group-to-make-urgent-recommendations-to-end-rough-sleeping/">Programme for Government last month</a>, the short-term Homelessness and Rough Sleeping Action Group came together with the immediate task of outlining urgent recommendations to minimise rough sleeping this winter.<br />
<br />
The group, which draws on expertise from across the sector, will examine how the Scottish Government’s commitment to end rough sleeping can be achieved and how best a new £50 million fund can support this. Membership of the Action Group includes:<br />
<ul>
<li>Jon Sparkes, chief executive, Crisis (chair)</li>
<li>Russell Barr, former moderator, Church of Scotland</li>
<li>Maggie Brunjes, Glasgow Homelessness Network</li>
<li>Mike Dailly, Govan Law Centre</li>
<li>David Duke, Street Soccer Scotland</li>
<li>Suzanne Fitzpatrick, Heriot Watt University</li>
<li>Josh Littlejohn, Social Bite</li>
<li>Lorraine McGrath, Simon Community Scotland/Street Wise</li>
<li>Susanne Miller, Glasgow City Council</li>
<li>John Mills, Fife Council & ALACHO</li>
<li>Shona Stephen, Queens Cross Housing Association</li>
<li>Alison Watson, Shelter Scotland</li>
</ul>
Housing Minister Kevin Stewart said: "The Homelessness and Rough Sleeping Action Group will be recommending immediate steps we can take to minimise rough sleeping, both this winter and for good, as well as ways to transform temporary accommodation. The members bring a wide range of expertise, experience and enthusiasm and I know they will provide invaluable advice". <br />
<br />
"The group will be engaging with all partners who deal with homelessness, including in local authorities and the third sector, so we can harness the wealth of knowledge available. We are committed to ending rough sleeping, preventing homelessness, and transforming outcomes for those who experience it. The action group and the new £50m fund are important steps in achieving this."Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-1792434585149336512017-09-12T14:36:00.002+01:002017-09-12T14:36:57.262+01:00Civil court & tribunal solicitor vacancy at Govan Law Centre <a href="https://3.bp.blogspot.com/-djmtSxzauU4/Smooo1W1sjI/AAAAAAAAAD4/AEMUmRb7XgE3dKWD7HTz8JCV01_xAdk9wCPcBGAYYCw/s1600/glas_sheriff_court.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" data-original-height="333" data-original-width="500" height="133" src="https://3.bp.blogspot.com/-djmtSxzauU4/Smooo1W1sjI/AAAAAAAAAD4/AEMUmRb7XgE3dKWD7HTz8JCV01_xAdk9wCPcBGAYYCw/s200/glas_sheriff_court.jpg" width="200" /></a><span style="font-family: inherit;">GOVAN LAW CENTRE seeks a qualified
solicitor to join our legal team in Glasgow.<span style="mso-spacerun: yes;"> </span>Competitive salary.<o:p></o:p>
We are</span><span style="font-family: inherit;"> seeking a qualified solicitor with good civil court and, preferably,
tribunal experience.<span style="mso-spacerun: yes;"> </span>Experience in the
legal fields of housing, homelessness, employment, equalities and public law
would be an advantage.<o:p></o:p>
</span><br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;">The successful candidate will work from our main office in Orkney Street in
Govan.<span style="mso-spacerun: yes;"> </span>Regular court appearances will be
required.<span style="mso-spacerun: yes;"> </span>This is a full time post,
however, job sharing will be considered.
</span><br />
<span style="font-family: inherit;"></span><br />
<span style="font-family: inherit;">This
position is in our general court and legal team and will include provision of
legal advice and representation for clients in terms of mainly housing,
homelessness, employment, debt, public law, community care and disability
rights and welfare rights. It will also
involve providing legal representation at court and tribunals.<o:p></o:p>
</span><br />
<br />
<span style="line-height: 107%;"><span style="font-family: "calibri";"><span style="font-family: inherit;">There will
be an opportunity to become involved in some of our public interest litigation,
test case work, law reform and social policy work. </span></span></span><br />
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="line-height: 107%;"><span style="font-family: "calibri";"><span style="font-family: inherit;">The
successful candidate MUST:</span></span></span></div>
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">1.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Hold a degree in Scots Law</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">2.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">A diploma in legal practice</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">3.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">An unrestricted Law Society of
Scotland practising certificate</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l1 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">4.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Have good research and analytical
skills</span></span></span></span></div>
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 8pt 36pt; mso-list: l1 level1 lfo1; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">5.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Ability to work well under
supervision</span></span></span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="line-height: 107%;"><span style="font-family: "calibri";"><span style="font-family: inherit;">It would be
desirable if the candidate had:</span></span></span></div>
<div class="MsoListParagraphCxSpFirst" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">1.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Knowledge and experience of issues
relating to social welfare law</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">2.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Experience in appearing in court or
tribunal settings</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">3.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Experience in dealing with vulnerable
clients</span></span></span></span></div>
<div class="MsoListParagraphCxSpMiddle" style="margin: 0cm 0cm 0pt 36pt; mso-list: l0 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">4.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Experience in handling a large and
varied workload</span></span></span></span></div>
<div class="MsoListParagraphCxSpLast" style="margin: 0cm 0cm 8pt 36pt; mso-list: l0 level1 lfo2; text-indent: -18pt;">
<!--[if !supportLists]--><span style="font-family: inherit;"><span style="font-family: inherit;"><span style="line-height: 107%;"><span style="mso-list: Ignore;"><span style="font-family: "calibri";">5.</span><span style="font-stretch: normal; font-style: normal; font-variant: normal; font-weight: normal; line-height: normal;"> </span></span></span><!--[endif]--><span style="line-height: 107%;"><span style="font-family: "calibri";">Experience in working within a team
setting</span></span></span></span></div>
<div class="MsoNormal" style="margin: 0cm 0cm 8pt;">
<span style="line-height: 107%;"><span style="font-family: inherit;">Please send
a CV and covering letter explaining why you are interested in this post to: Mike
Dailly, Principal Solicitor and Solicitor Advocate, Govan Law Centre, 18-20
Orkney Street, Glasgow, G51 2BX or </span></span><span style="line-height: 107%;"><span style="color: #0563c1; font-family: inherit;">m@ govanlc.com</span></span><span style="line-height: 107%;"><span style="font-family: "calibri";"><span style="font-family: inherit;">. </span></span></span><b style="mso-bidi-font-weight: normal;"><span style="font-size: 14pt; line-height: 107%;"><span style="font-family: "calibri";"><span style="font-family: inherit; font-size: small;">CLOSING DATE: Friday 6<sup>th</sup>
October 2017 at 4pm.</span> <o:p></o:p></span></span></b></div>
Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-45257969522970581162017-08-28T12:39:00.002+01:002017-08-28T12:39:18.510+01:00Second trainee solicitor opportunity at Govan Law Centre in 2017<a href="https://2.bp.blogspot.com/-4_LKCxz-I_c/VUt913t5crI/AAAAAAAABg8/_YrssBPM37oaCWEx1tMIxe8ruSl4wzvMQCPcBGAYYCw/s1600/Screen%2BShot%2B2015-05-07%2Bat%2B15.58.49.png" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" data-original-height="327" data-original-width="372" height="175" src="https://2.bp.blogspot.com/-4_LKCxz-I_c/VUt913t5crI/AAAAAAAABg8/_YrssBPM37oaCWEx1tMIxe8ruSl4wzvMQCPcBGAYYCw/s200/Screen%2BShot%2B2015-05-07%2Bat%2B15.58.49.png" width="200" /></a>Due to the expansion of our services, this is an exciting opportunity to join the largest
community led law centre in Scotland as a trainee solicitor. <br />
<br />
The position would be based in our
offices in Govan and the successful candidate would work with a dedicated team
of solicitors and caseworkers assisting the most vulnerable client groups to
assert their legal rights.<span style="mso-spacerun: yes;"> </span><br />
<br />
The work
would include – preventing evictions in the social rented sector and the PRS
sector, homelessness improving living conditions, illegal evictions, mortgage
arrears, employment, debt, discrimination and court and tribunal appearances.<o:p></o:p>
<br />
<br />
<a href="http://www.govanlc.com/GOVAN%20LAW%20CENTRE%20trainee%20solicitor%20advert.pdf" target="_blank"><strong>Application details are here</strong></a><strong>. Closing date, 4pm on Friday 15 September 2017.</strong> <br />
<br />
Please note this new post is addition to our Justice Fellowship trainee solicitor post (the details of which are here: <a href="https://jff.thelegaleducationfoundation.org/host/govan-law-centre-2017/">https://jff.thelegaleducationfoundation.org/host/govan-law-centre-2017/</a>)Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0tag:blogger.com,1999:blog-2161487576630088909.post-77334292549380805422017-08-16T13:31:00.001+01:002017-08-16T13:31:05.952+01:00GLC manages 54% of housing debt in Glasgow in 2016/17 under GCC Financial Inclusion Partnership<a href="https://3.bp.blogspot.com/-bLHWMpi_s48/Vzx8k4HEYsI/AAAAAAAABlU/Zf0pvZDu69oHt9rGwt7XbymFJUN7g2wEgCLcB/s1600/GCPP-GCC-logo-2016.JPG" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" height="135" src="https://3.bp.blogspot.com/-bLHWMpi_s48/Vzx8k4HEYsI/AAAAAAAABlU/Zf0pvZDu69oHt9rGwt7XbymFJUN7g2wEgCLcB/s200/GCPP-GCC-logo-2016.JPG" width="200" /></a>Figures for Glasgow's Financial Inclusion Partnership confirm that Partnership advice agencies managed almost £11m of housing debt for clients across the City in 2016/17.<br />
<br />
Of that total, Govan Law Centre (GLC) managed 54% of all housing debt in the City for its clients (homeowners and tenants in both the social and private rented sectors) - £5,920,241.93 of an overall City-wide figure of £10,949,317 in 2016/17.<br />
<br />
This represents an 8% increase on GLC's managed housing debt figure for last year (2015/16); with housing debt across Glasgow (under Financial Inclusion Partnership agencies) having increased by almost 13.5%.Govan Law Centrehttp://www.blogger.com/profile/16762550025515603148noreply@blogger.com0