Govan Law Centre to launch Scotland's first Personal Insolvency Law Unit

Alan McIntosh, Project Manager

Govan Law Centre (GLC) is launching Scotland’s first Personal Insolvency Law Unit. The new pilot project  will provide both first and second tier specialist insolvency advice and representation to both consumers and front line, free sector advisers who are dealing with clients struggling with debt.

With personal insolvency law now increasingly complex and also being monetised by private sector firms seeking to charge clients, who are often vulnerable.

Alan McIntosh, the Unit's Project Manager, said: "The Unit is coming along at a vital time for Scotland, as although personal insolvency is currently at a 14-year low, we can expect numbers to being rising again as consumer debt levels increase".

“In that environment, with many advice agencies, like Citizen Advice Bureaux and local authorities suffering cuts to their funding, we need to ensure there is a service where people can access specialist advice - not only as to when insolvency may or may not be the correct option for them - but also in relation to defending bankruptcy actions raised against them, as the consequence of this can often be families’ losing their homes”.

GLC's Mike Dailly, Solicitor Advocate said: "GLC's Board believes there is a massive unmet legal need across Scotland for specialised insolvency advice - ultimately to ensure that people access the very best solution to meet their own particular needs and to protect their homes; whether that solution is through the Debt Arrangement Scheme, a negotiated settlement, trust deed, or sequestration. We are very proud and delighted to be launching this essential service".

Mr McIntosh said: “Scotland’s bankruptcy laws have also gone through seismic change over the last 15 years, meaning they now impact on more people’s lives, with over 150,000 people in Scotland using a form of insolvency since 2008, but also the remedies are more accessible and this means the risks of people using the wrong solution have increased.”

“This risk has also grown with the removal of the courts from the process, which although generally is to be welcomed, does mean people need to step cautiously so they don’t casually walk into a formal remedy without first taking specialist advice.” 

The unit opens for business on Monday 11 July 2016, and will provide advice to clients who:

• are already in a personal insolvency or formal debt remedy in Scotland
• are considering entering a personal insolvency remedy or are being made bankrupt by a   creditor;
• have either been in a Protected Trust Deed or made bankrupt before in Scotland.

Alan McIntosh LLB (Hons) graduated from the University of Aberdeen and is an approved money adviser for the Debt Arrangement Scheme. He has worked in the Money Advice and Personal Insolvency industry in Scotland for over 15 years in various positions, including as a front line adviser, trainer and policy officer. He is also a Personal Insolvency Practitioner in the Republic of Ireland.

Govan Law Centre to launch Scotland's first Personal Insolvency Law Unit

Tribunal finds Her Majesty's Revenue and Customs in contempt of court as Govanhill Law Centre recovers £20,000 in tax credits for client

Govanhill Law Centre - part of the Govan Law Centre Trust - acts on behalf of a number of A8 and A2 nationals in the field of social welfare law. In December 2011 we published a report ‘Unequal and Unlawful Treatment: Barriers faced by the Roma Community in Govanhill when accessing welfare benefits and the implications of section 149 of the Equality Act 2010.’

A particularly difficult case relates to a Slovakian National who has resided in the UK since September 2007.  She is a single parent with two dependant daughters, born July 2002 and April 2004. Our client received tax credits in 2008.  In or around July 2010 tax credits were withdrawn. 

Our client appealed against the decision to terminate payment of tax credits. Correspondence became increasingly protracted, information was sought and supplied by our client, however, HMRC declined payment and continued to request the same information over and over.

HMRC would not accept that our client had qualifying children and repeatedly refused her application for tax credits in spite of birth certificates, national identity cards and letters from the local school confirming the same.  In November 2011 our client was advised that she would receive tax credits, however this was then withdrawn.  Correspondence continued, however no progress was made. 

The opinion of advocate Joe Bryce was sought in an effort to assist this particularly vulnerable client.  There has been chronic maladministration by HMRC, particularly in dealing with A8 Roma. There have been unreasonable information requests, unlawful retention of documents, a presumption of fraudulent behaviour, the imposition of different and unnecessary procedures and inordinate delay.

There was no progress in this case since the April 2012 when an appeal against the March 2012 decision because HMRC has never referred the appeal to the Tribunal.

GhLC solicitor Donna Morgan said: "Counsel was of the view that the client did not need to wait for the HMRC to notify her appeal to the Tribunal; she could do it herself, with our assistance. The Tax Credits Act 2002 permits this unusual approach, so far as we are aware this is the first successful appeal from an individual direct to the tribunal".

"Many direction notices were issued by tribunal services giving HMRC the opportunity to respond, which they failed to do to such an extent that HM Tribunal and Court Services found HMRC in contempt of court".

GhLC caseoworker, Jitka Perinova said: "Shortly thereafter HMRC issued letters confirming that backdated payment would be made from November 2010 to February 2013 would be paid.  Substantial sums totallling almost £20,000 have now been paid to our client improving her quality of life and that of her two children".

Tribunal finds Her Majesty's Revenue and Customs in contempt of court as Govanhill Law Centre recovers £20,000 in tax credits for client

Shopworkers back protection bill

The Sunday Herald reports that shopworkers have given their support to proposals to give Scottish workers greater protection from assaults.

The Co-operative Group, Scotmid Co-operative Society and the Scottish Grocers' Federation have announced their support for the Protection of Workers (Scotland) Bill which is being steered through the Scottish Parliament by Labour MSP Hugh Henry.  The Bill and supporting documents were drafted by GLC's Parliamentary Unit.

The Bill, which MSPs are first due to vote on in the next few weeks, will give shopworkers and other public-facing staff the same level of protection given to emergency workers who are assaulted while doing their jobs.

If passed, the Bill would make it clear that it is an offence to assault a shopworker while at work or as a result of them doing their job.  The Bill already has the support of Usdaw, the shopworkers' union.

Shopworkers back protection bill

GLC calls for widescale 'FOI' extension in Scotland

GLC has responded to the Scottish Government's consultation on 'Extending the coverage of the Freedom of Information (Scotland) Act 2002', which closed this week, by calling for the Act to be extended to cover the Glasgow Housing Association Ltd, and its factoring company, as well as asserting the general principle that the Act should be extended to a comprehensive range of private, third sector, and other bodies who are in receipt of substantial public funds, subject to 'proportionality criteria'.  GLC has argued that:

"As a matter of general principle, we believe there is a strong case for arguing that any body – whether private, third sector or public – should be subject to the 2002 Act in relation to the public money which they receive (and how it is spent) or public services which they provide subject to fair and reasonable proportionality criteria. Such proportionality criteria could be based around (a) the value of the contract or award and/or (b) the number of employees in the entity".

"We fully support proposals to extend coverage of the Act to GHA. We agree that GHA is a RSL unique in terms of size and public profile. In March 2003, Glasgow City Council transferred its housing stock to GHA with the result that GHA carries out functions which were previously carried out by the local authority. This means that people in Glasgow, who were formerly council tenants and are now tenants of GHA are unable to access information other tenants in other parts of Scotland would be able to access through Freedom of Information Act requests. Extending the coverage of the Act to include GHA will help address this inequity".

"We strongly believe that coverage of the Act should also include GHA’s factoring service, ‘Your Place’. As well as taking on responsibility for Glasgow City Council’s rented properties, GHA took over the council’s factoring responsibilities when the stock was transferred. GHA are now the factors of many ex-council properties. They are in a unique position as a factor in that they are the majority owner in many of the common closes they factor. This means that they often have to balance their role as owner and factor. We feel that it would be in the public interest to be able to obtain information regarding GHA’s factoring service through Freedom of Information requests".

GLC calls for widescale 'FOI' extension in Scotland

Unlawful private sector tenancy charges in Scotland

GLC's contribution to BBC Newsnight Scotland's story on unlawful tenancy fees (or 'premiums') charged by private sector landlords and letting agents in Scotland is available to watch on BBC iPlayer here (18 min into the show).  For more information on how to challenge the charges see GLC's online information here.

Unlawful private sector tenancy charges in Scotland

Time for banks and big business to err on the side of good, not greed

GLC has assisted Glasgow MP, Anas Sarwar, in the drafting of his Common Good (Directors Duty) Bill.  The proposed Bill would amend section 172 of the Companies Act 2006 to place a new legal duty on all directors of UK companies with 250 employees or more, to contribute to the common good of the communities or localities where the company operates or provides a service.

Section 172(1) of the 2006 Act requires a director to promote the success of the company and in so doing 'have regard' to a number of other factors.  However, there is no explicit obligation to consider the impact of corporate decisions on wider society, and the proposed Bill would remedy this clear imbalance in UK company law. 

Where the likely consequence of a director's decision would cause significant detriment to consumers, or particular groups of consumers, or the environment, the Bill requires the duty to contribute to the common good to take precedence. ‘Common good’ means contributing to the good of communities or localities where the company operates or provides a service.

Anas Sarwar MP said:
"Unacceptable culture within our banks was a major contributor to the UK's financial crisis. It's right that company law requires directors to promote the success of their companies, but that success shouldn't be at the expense of UK taxpayers, our local communities or environment. The balance in law isn't right, and directors of our largest companies need a stronger incentive to recognise their obligation to wider society. I want to amend the Companies Act to make that happen".

"Where the decision of a big company is likely to cause serious harm to our communities or the environment, the common good must prevail and companies should err on the side of good, not greed. A statutory ethical framework would improve corporate behaviour and help prevent future financial disasters and ecological harm. Leading figures in the financial services industry have acknowledged the need for a cultural change, so there is an appetite for change".

GLC's Mike Dailly said:
"Govan Law Centre is delighted to assist a Glasgow Member of Parliament to introduce a progressive law reform proposal which could have a radical impact on the culture and behaviour of the UK's biggest companies.  Often ecological disasters are a direct consquence of large companies pursuing profit margins at the expense of common sense, and the common good". 

"Within the field of UK banking, it is clear to us that its the bank's business model which causes significant detriment to the most vulnerable group of UK consumers and we believe the time is right for a sea change in the culture of senior directors of major UK financial institutions to address this unacceptable position.  Clearly, Anas Sarwar's proposed Bill will require cross-party support to progress, but we are grateful to him for launching this vitally important debate at Westminster".

Time for banks and big business to err on the side of good, not greed

GLC supports Scottish pre-action legal requirement in eviction cases

GLC supports the Scottish Governent's proposal of a pre-action requirement (PAR) for eviction cases in the social rented sector; although the elephant in the room is why not extend this approach to private sector evictions too?

We believe this approach could significantly reduce the number of tenants evicted due to rent arrears in the social rented sector. A PAR has been suggested in a recent Scottish Government consulation paper. Such an approach would require all social landlords to deal with the problem of arrears effectively at an earlier stage. It would also help ensure that court action was only raised as a last resort.

GLC believes the Housing (Scotland) Act 2001 could be amended to ensure that compliance with a PAR prior to raising an eviction action was necessary in order to ensure that proceedings were competent in the same way that service of a valid notice of proceedings is required at present. Failure on a social landlord’s part to comply with the PAR would therefore be a defence to the action on competency grounds.

GLC believes it is important, from a public policy point of view that social tenants are afforded the same protection as homeowners. The introduction or a PAR would bring the protection of social rented tenants in line with the protection being introduced for homeowners in the Home Owner and Debtor Protection (Scotland) Act 2010.

However, GLC is concerned that the Scottish Government's approach could give rise to unintended consequences, unless appropriate safeguards were put in place.  For example, we are concerned that the PAR could be seen as evidence that it is reasonable to evict in terms of section 16 of the Housing (Scotland) Act 2001. GLC is concerned that social landlords could argue that as they have complied with the PAR, and that as their tenants still had arrears, it would be 'reasonable' to evict. We believe that it is important that full consideration is still given to the requirements of section 16.

Although we hope the introduction of a pre-action requirement will reduce the number of cases raised in court we think care must be taken to ensure that the result is not an automatic assumption that all the cases that end up in court must be ones where nothing can be done to assist the tenant and that eviction will be reasonable in these cases.

We also think it is important that landlords continue to work with the tenant to solve the problem of the arrears, even after court action is raised. Our experience is that once the case has been raised in court some landlords become focused on obtaining a decree and are not as willing to negotiate repayment arrangements with tenants. We are concerned that the pre-action requirement may be seen as landlords as all they are required to do to assist a tenant. Instead we believe it should be seen as a minimum level of assistance that must be given before an action can competently be raised. Landlords should still be encourage to engage with tenants and work towards preventing eviction even after court action has been raised.

GLC's full response, led by Lindsay Paterson, Solicitor, to the Scottish Government's consultation is available online here.

GLC supports Scottish pre-action legal requirement in eviction cases

Call for Scottish register to create an inclusive and accessible pool of pro bono legal talent

Pro bono work offers a "huge width of potential" to help those excluded from legal services, the Lord Advocate said today. Elish Angiolini QC gave the keynote address at a conference hosted by her in the Scottish Government offices, entitled "For the Public Good: The Future of Pro Bono Legal Services in Scotland". 

The Lord Advocate told the conference that Scottish lawyers "have a long tradition of working to ensure that people are treated fairly and have their rights respected. The unfortunate reality, however, is that there are many people who cannot afford legal advice when they need it".

Speaking at the conference, Govan Law Centre's Principal Solicitor, Mike Dailly, made a call for a national, free, online pro bono Scottish ''register' to collate who was free to volunteer, the skills set they had, and which organisations had vacancies, and what skills they were looking for.  GLC believes that no one body should have a monopoly on co-ordinating or delivering pro bono work. Scotland needs an inclusive system whereby any advice agency, firm or local charity could tap into a pool of legal talent (which should include retired lawyers, practitioners and law students). GLC believes the Law Society of Scotland is best placed to provide this online, free, co-ordinating service in the public interest.

GLC also renewed our call for a proper Scottish public legal education strategy to empower citizens with self-help remedies; and tackle scam artists, which include all too many claims management companies (currently wholly unregulated in Scotland).  A key priority for GLC was the need to focus on public interest casework in Scotland: to undertake legal work and research that could change the legal landscape, and improve the lives of the Scottish public, particulary those on low and modest incomes and those subject to discrimination.

GLC congratulated the Lord Advocate for taking the lead in Scotland on the development on pro bono legal services.  The contribution from GLC's Mike Dailly is available online here.

Call for Scottish register to create an inclusive and accessible pool of pro bono legal talent

GLC to contribute to Lord Advocate's pro bono legal services in Scotland conference

The Lord Advocate, the Right Honourable Elish Angiolini QC, is hosting a special conference to explore how lawyers could best contribute to the provision of Pro Bono legal services; on Friday 14 May, Conference Room 1, Victoria Quay, Edinburgh, 9.30am; registration to probonoconference2010 (@) scotland.gsi.gov.uk

The conference will showcase current provision of pro bono legal services in Scotland, encouraging participation and mapping out the future. GLC is a strong and active supporter of the progressive development of pro bono legal services in Scotland, and internationally, and we are delighted that our Principal Solicitor will address the conference.

GLC to contribute to Lord Advocate's pro bono legal services in Scotland conference