Following the scandal that saw data consultancy Cambridge Analytica obtain data from millions of Facebook users, Apple CEO Tim Cook says the industry was now 'beyond' the scope of self-regulation.
One in four of us may need long term care or support during our life but few of us like to think about it until it happens. People often have to make quick and difficult decisions about their own or a loved one’s care needs - encouraging clients to think about the options in advance can pay dividends. Below, Lawyer Monthly hears from Spencer Gardner at Coffin Mew, Associate Solicitor on the Court of Protection team, on the possibilities that are available.
Financial assessment:
Care and support services have never been free. Most people have to pay something towards their own care and some will have to cover the costs completely.
Local councils may contribute to the cost of care in some circumstances, but help is means-tested. Who pays depends on the individual’s level of need, how much money the individual has, and the type of care and support required.
Most people needing social care services should start by asking their local authority for an assessment. If the local authority thinks they may need support, it will carry out an assessment of their finances. This assessment will determine whether the local authority will meet all the costs of care, or whether the individual will need to contribute towards their care cost or whether they will have to meet the full costs themselves (referred to as being ‘self-funding’).
Currently, local authorities (in England) won't provide care services if a person has more than £23,250 in savings and property. Depending on the type of care received and the living arrangements a main residence may not be considered capital. The Government’s plans to put a cap on the care costs one is expected to pay in their lifetime have recently been cancelled so those with sufficient means may have to spend a substantial sum before they arrive at the threshold for state support.
Couples:
Only the partner requiring care should be means tested. If the former home is occupied by a partner, it should not be included as capital, and, if married, only half a private pension should normally be taken into account. The council has the discretion whether to apply this rule if the person is unmarried. Where savings are held jointly, the local authority will take into account only the 50% of the person needing care. Choice and third party “top-ups”:
It is up to the individual to choose their care home whether or not the council is contributing to their care fees. If the council is paying, the home must be able to meet the person’s assessed care needs, it must comply with terms and standards set by the council, and it should not cost more than the council usually pays for someone with your needs.
Councils vary in how much they pay. If the home chosen is more expensive than the council’s usual rate, someone else need to make up the difference, or “top up”, but the council will want to check they can afford to pay the “top up” throughout the stay at the care home. The resident will not be allowed to use their own capital if it’s below the means test limit.
Deferred payment agreements:
For those faced with having to sell their home to fund care fees the council should lend the money to pay for care, secured against the property via a charge, unless certain exceptions apply - this is referred as a deferred payment agreement. Alternatively letting the property can be considered, though this may not provide the guaranteed level of income required and the responsibility for upkeep of the property will be retained.
NHS continuing healthcare:
Where an individual has a disability or complex medical problem, they might qualify for free NHS continuing healthcare. This is a package of healthcare that’s arranged and funded by the NHS. It can be provided at home, or in a hospital or residential home.
The individual is required to have healthcare needs rather than social care needs. In other words, they require nursing or medical attention rather than a carer. The criteria for this funding is complicated and can be difficult to access, but it can be worth pursuing if you think the person qualifies.
Attendance allowance:
Anyone aged 65 or over and need help with personal care, they may be eligible for ‘attendance allowance’. This is not means-tested and can be used this towards care fees. If the local authority is contributing towards care costs this can no longer be claimed.
How do you handle your work life day to day, and how do you balance it with family and fun? Richard Holmes, Director of Wellbeing at Westfield Health, discusses with Lawyer monthly 5 signs that your work is impacting on your home life and how you can avoid job burnout.
With a rise in longer working days and flexible hours, it can often be hard for the head of an organisation to switch off from work whilst at home. In most cases, employees are completely unaware that their job is slowly taking over their life, however, no matter what your position, it’s important to maintain a good work/life balance to ensure you stay happy and healthy.
Constant overworking may cause you to take your eye off things that are important to you or pick up unhealthy habits like over-eating or excessive drinking.
It’s important to take time to look after yourself and do what you love outside of work. Sticking to a routine will help you stay organised and on-track with other aspects of your life whilst busy at work.
Leavism is the latest coined phrase to define working during non-paid hours or annual leave. If you’re heading up a company, you may feel the need to be constantly on-hand or too scared to book annual leave through the fear of missing out on work. Leave your laptop at the office to avoid being tempted to work during your spare time.
If you are stressed and over-worked, you are likely to feel tired both on the job and at home. New research has revealed that almost half (46%) of working Brits say they regularly turn up to their jobs feeling too tired to work and a surprising 1 in 10 say they have purposefully taken a nap at work1.
Not only does fatigue impact on performance, it will impact on your physical and mental health which may result in having to take sick leave.
If you are so engrossed in work that you have neglected your favourite hobbies or lost interest in socialising altogether, you may need to restore some work life balance. Leadership responsibilities can often take up a lot of your personal life, but it’s vital to ensure you are still seeing friends and family. To help stick to this, be strict with allocating a certain amount of time each day to socialising or doing activities outside of work.
When running an organisation, you may find the time you are with loved ones is spent thinking about work-related problems or discussing your latest project. It’s good to share some workplace worries with those closest to you, but discussing every aspect of your working day will mean you struggle to switch off. The key to a healthy work life balance is to understand the need to talk about important work problems whilst restricting the time spent doing so.
At a time when all company expenditure is scrutinised and executive remuneration committees have been put into place to deal with the often problematic area of directors’ remuneration, companies need to be aware of the potential pitfalls in this area to ensure that they are not on the receiving end of an unfair prejudice petition. Below, potential good practices are explained by Laura Matthews, a Senior Associate in Rosling King LLP’s Dispute Resolution Group.
A common grievance between shareholders (which can often lead to a petition) is when directors who are also shareholders are considered to be excessively remunerated whilst, at the same time, the company decides not to declare a dividend.
Various organisations prepare annual reports into executive remuneration which provide insights into the trends of executive remuneration and highlight the factors that companies take into account when considering remuneration levels, such as alignment with corporate performance and the wider workforce, interests of stakeholders including the Government, the media, investors and employee unions. Such reports can provide useful guidance as to what will be considered appropriate remuneration for a director.
So, what constitutes good practice when it comes to remuneration for directors and what can reasonably be deemed unfair in the eyes of the courts? In the High Court decision of Booth and others v Booth and others [2017] EWHC 457 (Ch) (‘Booth’), a report by Deloitte LLP entitled “Directors’ remuneration in smaller companies” dated March 2016 was cited and relied on by the Judge when considering whether the directors in that claim had been excessively remunerated. In particular, the Judge considered the report’s findings that chief executives of small FTSE listed companies have a median salary of £317,800 and annual bonuses of 50% of salary.
The Booth case
The facts in Booth were as follows; the minority shareholders of the company brought an unfair prejudice petition claiming unfairly prejudicial conduct on the basis that: (i) the directors had been excessively remunerated due to an increase in their pay from £275,000 up to 2005, increasing to £400,000 in 2005 and to £820,000 in 2006. Between 2007 and 2015, the annual average was £1,579,000. In addition, the directors and their wives had the use of expensive cars and a yacht owned by the company; and (ii) a blanket ‘no dividend policy’ had been in place since 1987, before which substantial dividends had been paid each year.
The majority shareholders alleged that the petition was an abuse of the Court’s process as the minority shareholders could have utilised the pre-emption provisions in the Company’s articles. As for the ‘no dividend policy’, the directors stated that this was in place because no money was available for distribution and profits were being reinvested in the business, the requirement of working capital and a large overdraft.
The Court held that, in assessing directors’ remuneration, the test was “whether, applying ‘objective commercial criteria’ the remuneration which [the majority shareholder] took was within the bracket that executives carrying the responsibility and discharging the sort of duties that [the majority shareholder] was, would expect to receive.”[1]. In this case, it was considered that the directors’ remuneration was outside the bracket that directors in their position, carrying out their duties, would expect to receive. The Court held that a decision by the directors not to declare a dividend, even where there were profits to do so, could only be successfully challenged where the decision was taken in breach of their duties as a director, namely: (1) to exercise the power to recommend or not recommend a dividend for the purposes for which the power was conferred[2]; (2) to reach the conclusion (dividend or no dividend) that they consider, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole[3]; and (3) to exercise independent judgment[4]. The Court held that the ‘no dividend policy’ that the directors adopted could not have been considered likely to promote the success of the Company for the benefit of its members as a whole. This policy, combined with the related feature of accepting excessive remuneration, was in fact promoting the success of the Company for the directors’ own benefit. The Court noted that “although the level of remuneration was fixed in general meetings, the directors were nevertheless under a duty to consider whether part of their own ‘remuneration’ was in reality a distribution of profit discriminating against non-director shareholders. They did not discharge that duty. They closed their minds to the concept of sharing profits with, and ignored the interests of, the non-director members.”[5]
The Court concluded that the minority shareholders had been unfairly prejudiced, ordered that the minority shareholders’ shares should be bought out and held that the excessive remuneration would be factored into the valuation of the company’s shares for buy back purposes.
Good practice
This decision provides points of good practice when considering payments of dividends and the remuneration of directors as follows:
Failure to pay dividends
Payment of excessive remuneration
The level of remuneration is a commercial decision which the court is normally unlikely to second guess, however, signs of good practice are:
[1] Irvine v Irvine [2007] 1 BCLC 349 [2] Companies Act 2006, s.171(b) [3] Companies Act 2006, s.172 [4] Companies Act 2006, s.173 [5] Booth v Booth [2017] EWHC 457 (Ch), para 92
Earlier this month, the Trump Administration followed through on its promise from May 2018 and reimplemented the remaining sanctions that had been lifted in connection with the Joint Comprehensive Plan of Action (the ‘JCPOA’). This has however had various impacts on other nations and their relations with Iran and commerce. Below Lawrence Ward, Partner at Dorsey & Whitney, comments.
In reimplementing these sanctions, the United States designated over 700 individuals, entities, aircraft, and vessels as Specially Designated Nationals (‘SDNs’) and reimposed so-called “secondary sanctions,” which require non-US persons to comply with certain prohibitions as to Iran and as to SDNs. Additionally, foreign subsidiaries of US companies are once again considered to be fully subject to the jurisdictional scope of the US sanctions on Iran and must comply with those sanctions as if they are US companies.
During his campaign for US President, Trump made the JCPOA a major talking point and promised to tear up the JCPOA, calling it one of the worst deals ever. Despite Trump’s promises, international legal scholars and foreign policy experts believed that the United States could not go it alone as to Iran given its accord with the other permanent members of the UN Security Council plus Germany. The JCPOA was heavily negotiated and monitored and EU leadership believed – and continues to believe – that that the JCPOA is working. For the first two years of his presidency, it is likely that President Trump’s views were tempered by former Secretary of State Rex Tillerson, the former CEO of Exxon Mobile who was quite savvy about sanctions policy given the impact US sanctions have on oil and gas companies in particular. Nevertheless, with Tillerson’s departure from the Trump Administration, Trump is being advised by more hawkish and unapologetic foreign policy leaders who believe, as Trump does, that the JCPOA is bad policy for the United States and the world.
Although these most recent changes went into effect on Sunday, November 5, they have been anticipated for months because of the Trump Administration’s May announcement. Potentially, the biggest impact of the reimposition of these sanctions will be the reimposition of extraterritorial or secondary sanctions and the fact that foreign subsidiaries of US companies will once again be fully subject to the jurisdictional reach of the US sanctions as to Iran. Former Secretary of State Tillerson undoubtedly understood the impact that the extraterritorial reach of US sanctions could have on foreign subsidiaries of US companies. Accordingly, many observers believed that his views on backing out of the JCPOA likely were educated by those experiences while he was at Exxon Mobil. Tillerson understood the difficulties that EU subsidiaries of US companies would have in complying with both US law and EU blocking statutes when they conflicted with one another.
With the reimposition of sanctions, potentially the biggest impact will be felt on the oil and gas sector, the aerospace sector, and the financial sector. Since the implementation of the JCPOA, behemoth aerospace suppliers Boeing and Airbus had agreements with Iran to supply aircraft to replace Iran’s aging commercial air fleet. Not only will Boeing and Airbus be impacted by the reimposition of US sanctions but their supplier networks throughout the United States and the European Union will also see sales to Iran cut-off entirely. Secretary of State Mike Pompeo has warned that the United States will aggressively enforce its sanctions on Iran – including the secondary sanctions. In effect, this means that non-US financial institutions throughout the EU will need to decide on whether and how to comply with US sanctions. US sanctions have often been so successful in the past precisely because major banks throughout the EU and Asia have voluntarily chosen to comply with US sanctions. It is hard to imagine major EU banks reversing course in connection with the reimposition of US sanctions.
Interestingly enough, for all of its bluster, the Trump Administration chose to grant waivers to allow China, Greece, India, Italy, Japan, South Korea, Taiwan, and Turkey to continue temporarily buying crude from Iran while they work to reduce imports of Iranian crude to zero. The United States indicated that these waivers were warranted because these eight nations had demonstrated cooperation on other fronts and reductions in their crude imports from Iran already.
It is hard to imagine the Trump Administration reversing course and lifting any of these sanctions during the next two years – particularly as Trump continues to take a view of nationalism to rally his base of supporters. Further, the other nations that helped in negotiating the JCPOA see no need to come to the negotiating table again. Thus, it looks like EU companies will need to once again understand the complexities of US sanctions and how they might impact them.
The European Parliament has released its report on the ‘state of play, issues and impact that come from citizenship-by-investment schemes in the EU’. The report is the result of a study into 22 out of the 28 EU Member States that allow discretionary naturalisation on grounds of special achievements.
Responding to the study entitled ‘Citizenship by Investment (CBI) and Residency by Investment (RBI) schemes in the EU, Sate of Play, issues and impacts’ (PE627.128 – October 2018) published by the European Parliamentary Research Service (EPRS), Bruno L’ecuyer, Chief Executive of the Investment Migration Council (IMC) says: “The report reaches the right conclusions for the wrong reasons.”
“The report agrees with the IMC – that to ensure the integrity of the industry, a systematic risk-based approach to due-diligence must be standardised which will also safeguard EU objectives such as sincere cooperation between member states.’’
The IMC also welcomes any guidance from the European Commission on sharing public data that would increase transparency and the establishment of a structured exchange of information between member states.
By being open about the rigorous processes that aspiring citizens must go through, we can avoid the opacity that sours so much of the discourse around investment migration. We can ensure, for example, that we remove speculation that Tier One visas are simply a mechanism for tax evasion, increase discrimination, are a threat to security or affect access to housing.
While the report concurs with the IMC’s recommendations, it incorrectly infers that the industry is a threat to security and justice and is eroding trust between member states, citing bias media sources which have a politically motivated agenda.
Before making radical recommendations, more impartial research is required to substantiate the claims made.
The IMC has made it clear, that to achieve this, we need to work more closely and engage meaningfully with legislators, politicians and government-affiliated bodies to ensure that the industry develops in-line with the spirit of EU values, and that best practice is consistently applied throughout. But that any increased regulation and recommendations will not impact the contribution the industry has on a state’s GDP – the only way in which we’ll achieve this is through consistent cooperation.
(Source: Investment Migration Council)
Following a recent green paper on housing, Joanne Young, Legal Director in the Property Litigation Team at Ashfords LLP, specialising in housing management, explains why housing officials are taking one forward and two steps back.
In November 2010 the Con-Lib Coalition Government, still relatively fresh from their election victory and full of determination to effect real change in housing, issued a consultation paper - "Local Decisions: a fairer future for social housing."
In the foreword, the-then Housing Minister Grant Schapps talked of his desire to see social housing acting as a "springboard to help individuals make a better life for themselves." He recognised that social housing is a scarce commodity – and so the system needed to be "flexible”, so housing can be used to assist those who need it most, with housing providers having the flexibility to use housing stock in any particular area in a way that best suits that particular community. That document went on to highlight that the lifetime tenancy regime takes no account of changing circumstances of the tenant, gives a succession right to families who may be capable of obtaining their own housing and leads to under-occupation.
The 'flexible tenancy' idea was born and as a result was introduced by the Localism Act 2011. Social housing providers were given the ability to grant fixed term tenancies for a minimum period of 2 years to their tenants, instead of granting "lifetime" secure or assured tenancies. The longstanding position that a tenant who complied with the tenancy terms (and there were no major redevelopment plans) could remain a tenant for life, started to ebb away.
The key feature lacking from the Localism Act was compulsion. Social housing landlords were not obliged to offer fixed term tenancies - and so few did.
A House of Commons Library Briefing Paper from September 2018 highlights a 2016 Equality Impact Assessment on lifetime Tenancies. In 2014/15 just 15% of social housing tenancies were let pursuant to fixed-term tenancies. Anecdotally, some of Ashford’s housing clients had expressed a general unease with such a fundamental change to the social housing landscape; others were simply holding back for practical reasons, wanting to see how fixed-term tenancies worked for other providers before taking the plunge themselves.
As recently as 2015, the Government was still intent upon expanding the low uptake of fixed term tenancies. The Housing and Planning Act 2016 included the provisions needed to compel local authorities to grant fixed-term secure tenancies subject to a few exceptions. However, the regulations needed to bring these provisions into force are not yet live - and it now seems unlikely that they will ever come into force.
Even before getting to the detail contained in the August 2018 Social Housing Green Paper, the change of stance on fixed term tenancies was apparent. The forewords given by both the Prime Minister and the Secretary of State for Housing, Communities and Local Government talk of "integrated" neighbourhoods, "thriving communities" and of the need to provide a "secure" roof over the head of every person. Much of the criticism levelled at flexible tenancies is that the lack of security destroys communities.
The current Green Paper seems to alter the thinking on fixed term tenancies. It states that the Government have acknowledged that, since the 2016 Act, there has been "a growing recognition of the importance of housing stability for those who rent." The Paper highlights the recent consultation re extending tenancy periods in the private rented sector; to have such ideology sitting alongside provisions that curtailed security in the social housing sector is sending mixed messages, and so the Green Paper goes on to state that "we… have decided not to implement the provisions of the Housing and Planning Act 2016." Crucially however, it is of note that the Green paper adds "at this time."
Perhaps in an attempt to save face, the paper goes on to state that "We continue to recognise the benefits of fixed term tenancies in the right circumstances", and instead say that it is up to social housing landlords to make decisions as to whether fixed term tenancies should be used at a local level. It is therefore entirely discretionary and unlikely in the current climate to lead to any compulsion on housing providers to grant fixed term tenancies.
So, what does the future hold for fixed term tenancies?
It is unlikely that any landlords who are not using flexible tenancies at this stage will be keen to introduce them. We may even see landlords who are currently using this tenure phasing them out; many of the fixed term tenancies that have been granted may well be coming to an end in the coming year or so, and so they may simply be replace with secure or assured, lifetime tenancies.
The Green Paper does not however set out any desire to expressly repeal the 2016 Act provisions; in fact, far from it. The use of the phrase "at this time" does give this or any future Government an ability to revive the mandatory use of fixed term tenancies in the future.
Social housing is an increasingly scarce resource, and something has to change to avert a major housing crisis. There is a strong argument for saying that the use of fixed term tenancies will lead to better management of housing stock, enabling more effective use of a limited housing supply.
It may be that this controversial proposal is not dead and may be one of many difficult decisions which need to be made to address the chronic housing shortage.
Below, Andrew Wilkinson, will dispute specialist at Shakespeare Martineau, comments for Lawyer Monthly on the Government’s move to increase probate fees.
The Government is giving with one hand and taking away with the other. Described as a ‘stealth death tax’ this has come about because the court system is underfunded and while increased investment should improve things, the proposed system is inherently unfair.
Improvements such as increased adoption of technology, for example, allowing families and executors to make probate applications online, are badly needed to speed up the out-of-date court system. However, the idea of calculating fees on a banded system makes little sense – the probate office has to do the same work, regardless of whether the estate is worth £10,000 or £10 million. On a practical note, funding these higher costs could also prove a challenge for executors.
The hike in costs will come as a shock to those individuals who are trying to establish what will happen to their estate upon death. The changes could lead them to take risky measures when arranging their affairs in order to try and avoid or reduce these substantial fees after their death. Some people could be put off from applying for a grant altogether.
For example, some individuals may choose to relinquish some or all control over their estates, causing a greater risk that their intentions may not be followed after their death.
Individuals may also be tempted to put assets into joint names to ensure they are automatically transferred to the surviving party without the need for a grant. Some will choose to transfer assets away from themselves, by using trusts. Similarly, deathbed planning involving a transfer of assets could result in more disputes among the key beneficiaries, fuelling hostile litigation.”
When it comes to the Government’s tax strategy, estates are often seen as a soft target and it seems inevitable that these fees will increase further over time. Whether they will make a significant difference to the quality of the probate service, however, is another matter entirely.
President Trump has constructed a narrative in which he clawed his way to the top by sheer will. The New York Times released a story that calls that narrative into question. Were Trump’s financial successes heavily funded by his father Fred?
In May of this year, a huge change came about in the betting industry in the US. The Supreme Court cleared the way for individual states to legalize sports betting. Since 1992, a federal law was in place that had previously prohibited the majority of states from authorizing sports betting.
This news was a long time coming for many states who have been wanting to allow sports gambling as a way to not only encourage the tax revenue, but also to increase the tourism in the state. The states were then left to make their own choice whether to allow sports betting or to put their own laws in place.
According to the co-founder Josh Wardini and the whole team behind NJgames.org, the controversy of the matter started back in 2011, when the state of New Jersey voters approved a measure to legalize sports betting. At the time, casino industries were not doing very well thanks to the faltering economy and it was thought that this change would give the industry the boost that it needed.
As you can see in the timeline of NJ sports betting depicted on the infographic below, this law was then challenged by several professional sports leagues and the NCAA who pointed out the 1992 federal law. The sporting leagues, such as Major League Baseball, felt as though this would have profound and negative effects on the sport, which was a change they didn’t want.
Now that individual states are able to make their own decision as to whether sports betting is legalized, some of the major American sports leagues, such as NFL, NBA, and MLB, have already said that they are going to be taking steps to protect the integrity of the games.
The news has been met with mixed reactions from the states themselves. Seven states almost immediately legalized sports betting after PASPA was overturned and 16 others have recently prepared a Bill which has not yet been passed.
For the states themselves, this change could have a huge economic impact with sports betting expected to contribute $22.4b to the US GDP, as well as having a positive effect on the unemployment rates. It is expected that 86,819 jobs will be created directly and 129,852 indirectly.
To find out more about how this change is going to affect the US as a whole, take a look at the infographic below which will tell you all you need to know about the brave new world of legalized sports betting in the US.
