But do I have a claim???

Some of us are not used to the idea of being able to make a claim for compensation if we are unlucky enough to have an accident and get hurt, particularly if the accident happens at work. However under the law if an accident happens, particularly at work, there is a good chance of you being able to make a claim.

If you are not given the right equipment for the job you are doing, or if the equipment you are given is faulty in any way, then you will almost certainly have a claim against your employers. If you have to do a job which involves a lot of heavy or awkward lifting and you suffer an injury because you have not been trained in how to lift things safely or have not been given the right equipment so that the lifting becomes more manageable, then again you might have a claim.

If you work on a building site, particularly if the work involves working from scaffolding or above ground level, again there are regulations which enable you to bring a claim if you get hurt because your employers or the building site project managers do not carry out a risk assessment of your work and take the necessary precautions to make your system of work as safe as possible.

If you trip over something at work, or slip on something and get hurt, again you might have a claim against your employers. This can include tripping over electric cables on the floor that should have been tucked away or slipping on liquid that should have been mopped up.

Examples of cases where Osbornes have successfully brought claims against employers include:

1. A claim when an employee slipped when carrying furniture at work when the ground was wet
2. A claim when an employee on a building site slipped when coming down stairs on wet plaster that had been left on the stairs when it dropped from the ceiling
3. A claim when an employee on a building site fell through a hole in the first floor that had not been fenced off

These are just some examples – there are many more when it was not obvious that a claim could be brought.

The claim for compensation will include a claim for pain and suffering, a claim for all the earnings lost because of the accident and a claim for all of the expenses which resulted from the accident including things like taxi fares and the cost of prescriptions. You can even get private medical bills paid. So claims can often amount to many thousands of pounds.

If you need help with bringing an accident claim or even if you want to discuss whether there is any chance of being able to bring a claim for compensation as a result of an accident you have had, contact Personal Injury lawyer, Wendy Wright on 0207 681 8671 or at wendywright@osbornes.net.

Are you a tenant who has entered into an assured shorthold tenancy agreement after the 6th of April 2007? If so, your Landlord is required by law to protect any deposit you are required to pay by paying the same into a tenancy deposit scheme. The tenancy deposit scheme must be what is referred to as an “authorised scheme”, which effectively means a scheme approved by the government.

This requirement was brought into law further to provisions of the Housing Act 2004 (“the Act”). The aim behind this law was to curb abuse by Landlords when returning deposits to Tenants at the end of a tenancy. Many Tenants had encountered problems at the end of their tenancy whereby Landlords would either refuse to return the deposit or would make significant deductions on what were often spurious grounds. Given the relatively small amounts of money it was rarely cost effective for Tenants to instruct solicitors to litigate against Landlords to recover their deposit. The result was that unscrupulous Landlords were effectively able to get away with ripping off their Tenants.

The new provisions of the Act remedy this problem. The Landlord is required to place the deposit in an authorised scheme administered by one of the three companies awarded contracts by the government to run these schemes. The Landlord is also required to provide various pieces of information to the Tenant regarding the authorised scheme. Should a dispute arise between the Landlord and Tenant at the end of the Tenancy the scheme provides a dispute resolution service, which is free of charge.

Perhaps the most important change brought in by the Act are the penalties which can be imposed upon Landlords for failure to comply with their obligations under the Act. Should a Landlord fail to comply with the requirements to place a deposit in an authorised scheme or fail to provide the relevant information to the Tenant the Tenant is then entitled to make an application to Court citing such failure on the part of the Landlord. Upon such an application if the Court is satisfied that the deposit is not held in an authorised scheme or that the relevant procedures under the Act have not been properly complied with, the Court must order the return of the deposit to the Tenant or order that the deposit be paid into an authorised scheme. In addition, the Court must order the Landlord to pay the Tenant a penalty of three times the amount of the deposit. Herein lies the financial incentive for compliance on the part of Landlords. It is perhaps unlikely that many Landlords would continue to fail to protect Tenant’s deposits if there is a risk that they may be ordered to pay damages of three times the amount of their Tenant’s deposit!

If your Landlord has failed to protect your tenancy deposit as required by law it is worth contacting property solicitors to advise you on the possibility of bringing a claim. Solicitors in our Property Litigation Department have experience in this type of litigation and would be happy to discuss the merits of your case with you.

The “double whammy” of Christmas and the credit crunch will make this week one of the busiest ever for divorce lawyers, experts said today.

One in four people say their relationship is under strain because of money problems, according to a new survey. Eleven per cent of those polled say they are being forced to stay in a failing relationship because the financial crisis means they cannot afford to leave.

Researchers for online advice centre InsideDivorce.com found almost two million couples in Britain were suffering marital difficulties and 1.3 million people were considering splitting up.

The traditional New Year rush to end marriages after the stress of Christmas means divorce lawyers brand today D-Day, or Divorce Day, kick-starting their busiest week of the year.

And with 17 per cent of divorced men blaming financial problems for the end of their marriage, the credit crunch is putting extra pressure on relationships in trouble.

James Stewart, a divorce lawyer at Manches LLP, said: “A stressful Christmas is already often the final straw for marriages in trouble.

“The double whammy of Christmas and the credit crunch will make the first full week of January one of the busiest ever.”

Relate, the UK’s largest provider of relationship support, said it had a 59 per cent surge in the number of calls to its centres over the festive period.

TakeLegalAdvice.com, a website which matches consumers with lawyers, also saw enquiries about relationship difficulties soar over Christmas, up a third compared to the same period last year.

“Christmas can be a nightmare for couples who are already experiencing marital problems,” said Derek Bedlow, the site’s managing editor.

“Many think about divorce but the added pressures brought about by the downturn may be the straw that breaks the camel’s back.”

Yet divorce creates its own financial problems, with one in three divorcees falling off the property ladder or having to downsize as a result.

Two in five reported increased levels of happiness following their split – though just 29 per cent of men said they were happier, compared with 49 per cent of women.

The survey’s revelations about British relationships included the finding that 17 per cent of marriages are entirely sexless, a potential trigger of infidelity, cited by two in five (38 per cent) people as key factor for divorce.

The other common reasons for splits were abuse (34 per cent) and boredom, cited by almost one in three (29 per cent) people.

The survey also revealed that prenuptial agreements are still unusual, used by just 2 per cent of people who were divorced or married.

Nearly a third (28 per cent) of those who had no agreement said in hindsight they regretted the decision not to arrange finances before marriage.

The researchers surveyed 700 married, divorced, separated and cohabiting adults across the UK.

A Judicial Separation is not a divorce. There are plenty of ways in which you can differentiate between the two.

A Separation Agreement or what is commonly called as a ‘Judicial Separation’ is only an order of Court that, if granted, breaks up the commitments or benefits brought out by a marriage.

Until and unless, the divorce begins, this agreement is binding on both parties. This is to let you have some more time to give your decision another thought.

But, during this period, the parties can ask the Court to confirm the terms of the Separation Agreement. It is obvious that a Separation Agreement will help you get divorced more easily. But, the judge still bears the authority to turn down the agreement at any time if something goes against the interest of either one of the parties.

Separation Agreements are relatively easy to obtain. They are available online as well.
It is easy to obtain it only if both the parties are ready for the separation.

The duration of a separation Agreement is also quite reasonable. It is only in the later stages that the separation agreement is merged into the judgment of divorce.

Though, a merged Separation Agreement has no legal significance, it plays a major role as “a substitute for a judgment of the Court that is entered into by condition and has no greater or lesser power than a judgment of the Court entered after trial.”

After this is done, both the parties agree that the marriage is broken and that they can now proceed individually for the proceedings of a divorce.

The separation agreement that meets the needs of everyone involved is called ‘a Structured Separation Agreement’. The couple is required to sign the ‘Memorandum Of Understanding’ which confirms that they will abide by the agreements made.

However, the Memorandum of Understanding can be repealed if the couple plans to reunite.

On one hand, a Separation Agreement is just a means of getting a divorce more easily.
On the other hand, a divorce is a Court judgment that terminates a marriage. In this case, you ought to have a legal reason for the divorce.

The court not only legally ends the marriage but also make decisions pertaining to the monetary and child-related affairs. Generally, in case of a divorce, there is a twenty-one day waiting period after the defendant has been given his or her copies of the divorce papers.

However, in case of no-fault divorces, this period can extend to even six months.

Do not think that divorces are very simple and can be handled with a minimum amount delay. Most divorces are indeed very complicated  and can take from a few months to several years , not forgetting all the legal formalities and the non-stop visits to divorce  lawyers.

For you, marriage might be like a child’s game that can be started and ended anytime you wish, but bear in mind that getting a divorce is not a child’s play. After all, a complete destruction needs time!

Extramarital affairs are cited as the most common reason for divorce in the UK and Wales, accounting for 29 per cent of break ups, a survey revealed on Monday.

The survey of 100 leading divorce lawyers in England and Wales pointed out that growing numbers of people are divorcing because of “mid-life crisis”.

Extramarital affairs were the most common cause of marriage breakdown for the survey’s fifth year running, accounting for 29 per cent of divorces in 2007, down from 32 per cent the previous year. But mid-life crisis took second place for the first time, rising from 2 per cent in 2006 to 14 per cent last year. Family strains were the third most common cause, at 11 per cent.

The report, from chartered accountants Grant Thornton, published in The Guardian on Monday, found that two out of three lawyers surveyed had at least one client in 2007 who hired detectives to shadow a spouse suspected of cheating.

Tamara Mellon, founder of the Jimmy Choo shoe empire, was spied on by private investigators hired by her husband, Matthew, during an acrimonious divorce last year. But in 64 per cent of cases the suspicious spouse was the wife.

“While it might seem like an extreme length to go to, people just want to know the truth – even if it hurts,” said Andrea McLaren, head of Grant Thornton’s London matrimonial practice.

According to the survey, 78 per cent of the straying spouse is usually the husband. The percentage of cases in which the wife is the guilty party dropped from 31 per cent in 2006 to only 22 per cent in 2007.

The British survey by chartered accountants Grant Thornton showed that in the majority of mid-life crisis cases – 93 per cent – the partner having the crisis was the man.

Sir Mark Potter, president of high court’s family division, acknowledged that London has become “the divorce capital of the world.”

About 94 per cent of the family lawyers polled by Grant Thornton named England and Wales as the best place for a wife to have her divorce dealt with.

Only 5 per cent cited the US, where prenuptial agreements are legally enforceable.

Osbornes has again been recognised by the Legal 500 as one of the leading family law firms in London.

The Legal 500, published this month, is one of the leading independent directories of law firms in the UK. They have this to say about Osbornes:-

“The ‘excellent’ Osbornes is consistently recommended by market observers and regularly receives referrals from high-ranking competitors.”

Both Julian Beard (Head of Department) and Naomi Angell (international adoption) are recommended.

Autumn is upon us and it’s the start of another academic year. With a 7 year old boy recently being reported in the press as Britain’s youngest skydiver, traditionally risky activities are becoming increasingly accessible to children. But when it comes to school life, can children have a bit of rough and tumble in the playground or does our legal system wrap pupils in cotton wool, allowing the ‘compensation culture’ to cross the school gates? Victoria Gallanders investigates.

It’s a fact of life that children will sometimes get injured at school. For many adults a grazed knee in the playground was just part and parcel of growing up, and the courts too appreciate that children are bound to have some minor injuries when at school. However, sadly not all school injuries are minor. The case of Amy St Johnston, who became partially paraplegic after falling out of a school window, was highly publicised back in June and shows that unfortunately school children can suffer life changing injuries when at school. This warning was reinforced this month when a school in Boston was fined £16,500 by the HSE after a 16 year old girl lost most of her fingers to burns sustained from plaster of Paris in an art lesson.

Three common scenarios when a school pupil may suffer injury through no fault of their own are when they are injured by another child who was insufficiently supervised, injured when using school equipment, or injured in poorly maintained grounds. Each of these situations is looked at in turn below:

Supervision

It is well established that schools and teachers should ensure that pupils are safe at school. One aspect of this is supervising children to prevent them from injuring themselves and one another. The courts accept that as children get older they will need less supervision, except when participating in more risky activities when a higher level of supervision is required. Similarly, as children get older they are more aware of the consequences of their actions, with the result that even if poorly supervised, blame may be apportioned to the wrongdoing child themselves as well as the school.

So when will a school be liable for insufficiently supervising children? The answer is that there are no hard and fast rules for this and cases tend to turn on their facts. For example, in Palmer v Cornwall County Council (2009) a year 9 pupil was hit in the eye by a rock thrown by a fellow year 9 pupil during their lunch break. The accident occurred on school fields and there was only one dinner lady supervising approximately 300 pupils from years 7 – 10. The Court of Appeal found that to have just one supervisor watching over the year 7 and 8 pupils and glancing at the year 9 and 10 pupils was negligent and the local authority was therefore ordered to pay compensation to the injured child. However, this is contrasted with Pettican v Enfield LBC (1970) where a child’s eye was poked by a piece of chalk when children were fooling around during indoor break time on a wet day. Although teachers had to supervise more than one classroom, the local authority was found not to be liable. Liability therefore depends on the individual circumstances of each case.

A school or local authority’s duty to supervise children can also extend to before and after the school day. For example, when children are waiting outside school for lessons to start and making their way home in the afternoon they can be particularly vulnerable to passing motorists. In July 2009 The Hackney Gazette reported an all too familiar story of a pupil who broke his shoulder and arm in a road traffic accident with a motorcyclist outside his school. Whilst liability for such accidents may sometimes lay with the motorist, schools and local authorities should also ensure that children are supervised appropriately outside the school gates.

School equipment

Schools should also ensure that pupils are reasonably safe when using school equipment. Therefore if a child is injured when using defective or unsuitable playground apparatus or sports equipment, the school may be liable. Schools should make sure that play equipment is suitable for the ages of pupils at the school. So, for example, climbing frames should not be too high for younger children, and there should be soft tarmac or bark chippings below them to minimise injury if a child were to fall.

School equipment also covers desks, scissors, test tubes…in fact most school property which a child uses in the course of a school day. Again, when determining whether equipment is suitable, the court will look at a child’s age. For example, in Butt v Cambridgeshire and Ely CC (1970) a child was poked in the eye with a pair of scissors. The class was of 9 and 10 year olds and the local authority was not found liable. In contrast however, the local authority in Black v Kent City Council (1983) was found liable when a seven year old was poked in the eye by sharp scissors, as blunt ended scissors would have been more suitable for this age group. Therefore if a child is injured by unsuitable or faulty equipment, they may be entitled to compensation but again the case will turn on its facts.

Poorly maintained grounds

Finally, many school injuries result from trips, slips and falls. Under the Occupiers Liability Act 1957, schools must take reasonable care to ensure that pupils are reasonably safe when on school premises. This means that if they trip over a raised pavement slab, or a divot in a playing field, and the school had not acted reasonably in not spotting and remedying the defect, the child could be entitled to compensation. When considering what is reasonable, the courts accept that a child would not be expected to be as careful as an adult, and so there is a higher standard that schools must reach to escape liability.

If a pupil wanders into an area that is out of bounds, and is therefore a trespasser, the school could still be liable for an accident that occurs. This can pose a great concern to schools, as the courts have found occupiers liable for accidents caused by out of bounds premises such as sky lights and fire escapes. However the standard that the school must meet is much lower than when a pupil is allowed on the premises, and essentially they only have to protect pupils from dangers that they are aware of or should reasonably be aware of.

Therefore in short, the courts do accept that sometimes pupils will suffer minor injuries at school and they should not be smothered in cotton wool. However this does not negate the fact that children can be seriously injured when under a school’s care, and should therefore be protected. Whether a school is liable for an accident will largely depend on the individual facts of the case, and parents should therefore contact a lawyer as soon as possible if they feel that their child has a potential claim.

Victoria Gallanders is a personal injury solicitor at Osbornes. If you wish to discuss a school accident or any other type of claim, she can be contacted on 0207 485 8811 or at victoriagallanders@osbornes.net

When an ancillary relief order is made it may contain provision for one party to pay the other spousal maintenance (or “periodical payments”). This is usually for a defined amount per month or it may be expressed as a percentage of the payer’s income. The level of maintenance will be based, amongst other things, on the parties’ needs as assessed at the time the order was made and their financial resources. But what if the circumstances of the parties change after the order is made? For example, what if the payer loses his or her job? Or the payee finds that they are struggling to make ends meet?

In these situations it may be possible to seek an order from the court to vary a maintenance award. The amount can be varied (upward or downward), the term may be changed, arrears discharged, the order may be temporarily suspended or the court may exercise its power to capitalise the remaining maintenance payments. The application to vary can be made by either the payer or the payee.

Applying for Variation

In order to make an application to vary maintenance, there are various elements which need to be satisfied:

• There must be an existing maintenance order in place, even if it is only a “nominal” maintenance order.
• The payee must not have remarried because on remarriage maintenance payments end.
• The applicant must satisfy the test laid down in statute which is that the court will take into account “all the circumstances of the case…(and this) shall include any change in any of the matters to which the court was required to have regard when making the order.”

Applying the Test

As is often the case in family law, the court has wide discretion to decide when or if to allow a variation of maintenance. The first consideration will be of the welfare of any child under 18. Other relevant factors will be the relative financial resources of each party, their ages and their needs. The court will also want to know what has happened in the intervening years since the ancillary relief order was made, how things have changed and why they have changed.

The court also has a duty to consider, on an application for variation, whether or not there should now be a clean break. This could be achieved by capitalising future maintenance by the payer paying a lump sum in lieu of future maintenance payments.

Case law

Very broadly, case law has seen a general trend towards allowing variation of maintenance and allowing payees to increase the length of maintenance orders where they were made for a specific term only. The focus has shifted from the payee having to argue for any continuation of maintenance to the payer having to argue against the continuation of it.

The court may also take into account the extent to which the person reliant on the maintenance has tried to become financially independent, although this will depend on factors such as their age, resources and whether they were in a position to become independent. In the case of North v North [2007] EWCA Civ 760 the court limited a wife’s claim to increase her maintenance because she had not tried to obtain gainful employment and had frittered away her money on a serious of unwise business decisions and a lavish lifestyle since the divorce. Nevertheless, the court still awarded her an increase of maintenance because it said that she could not be blamed for the businesses she invested in going bust.

Latest Cases

This year, two cases in particular considered the matter of variation of maintenance. Both were cases where the applicants were trying to increase the amount they received. In McFarlane v McFarlane [2009] EWHC 891 the applicant was successful in arguing that she should receive an increase in her maintenance payments. Mr McFarlane’s income had steadily increased and Mrs McFarlane said she needed more money to meet her own and the children’s needs. Her maintenance was increased based on a percentage of the husband’s income rather than on the basis of a defined amount per annum but the court limited the maintenance to 2015 which is when the husband is due to retire. The court left it open to Mrs McFarlane to apply again in 2015 if she is still not financially independent. Critics might argue that this leaves little incentive to people like Mrs McFarlane to become financially independent when she has the option of seeking further resources from Mr McFarlane. The case is somewhat unusual in that Mr McFarlane was, and is, extremely wealthy and so there was a surplus of income available to be shared between the parties. It was also relevant that Mr McFarlane had remarried and his second wife was also a high earner contributing towards the household and therefore there was more “surplus” to be divided.

Another recent case on variation this year was Hovorostovsky v Hovorostovsky [2009] EWCA Civ 79. In this case, the payer’s income increased dramatically while the payee was accepted to be without an earning capacity and a lifelong dependent of her former husband. An increase of the level of periodical payments was ordered by the court. However, the court did not accept that the payee who was the former wife in this case, needed to be compensated for having given up her career as a dancer prior to her marriage to her husband in 1989. In contrast, in the case of Mrs McFarlane, above the court held she did deserve to be compensated for giving up her high flying career as a solicitor to look after the family when she got married.

Alternative Options

Applying to court for a variation of maintenance obviously has a cost element attached to it and this needs to be balanced against the prospects of being successful in any application. It is important to take advice on this aspect.

An alternative option to litigation might be to try mediation through a family lawyer or to try negotiation through solicitors.

If there are children involved, it is important to remember that spousal maintenance is separate from and usually additional to child maintenance, which all non-resident parents are obliged to provide. More information on child maintenance can be found at www.childmaintenanceoptions.com and at www.csa.gov.uk. Also where children are involved, it may be possible to pursue a claim for a lump sum, property or periodical payments under the Children Act which does not require there to be a maintenance order or even that the parties were ever married.

If you would like any more information on variation of maintenance please contact Paven Basuita or any member of Osbornes family department.

News Source : www.osbornes.net

Getting older and death are two things most of us prefer not to think about. Perhaps this is why more than 60% of us die without having made a Will. Planning for the future is essential to provide for family and friends, maximise tax savings and avoid leaving financial affairs in chaos.

We provide a comprehensive range of services designed to

news source: www.osbornes.net

Naomi Angell  of Osbornes takes us through the adoption process     

Naomi Angell

THE RECENT TV PROGRAMME Find me a Family focussed on the problems in finding adoptive families for the hard to place children in the care system who struggle to find a family to call their own.

The starting point for people thinking of adoption is often a baby or toddler so that they can have the closest experience to bringing up their own child. However there are now very few babies available for adoption, with seismic changes in social attitudes towards unmarried mothers,abortion and family structures.

The programme encouraged families thinking about adopting to look beyond the cute babies or toddlers to the children waiting in the care system to find a family; children with medical problems, sibling groups who should not be separated unless there is no alternative or older children.

Find me a Family also followed three very different types of families: a married couple who had been unable to conceive a much wanted second child after having their first; a single woman; and a male same sex couple.

The Adoption and Children Act 2002, the most up to date Act of Parliament on domestic adoption, introduced the right for gay couples and heterosexual cohabiting couples to adopt. The TV programme followed the families through the adoption process, a system with a reputation for its intrusiveness, capriciousness and length and dispelled some of the myths while explaining others.

The question is often asked why being assessed for adoption has to be so rigorous when having your own baby can happen without thought or planning and does not involve having to answer social workers’ questions about your own childhood experiences and your views about disciplining your future child. What a family will learn in the preparation and assessment process for adoption is that they need to understand themselves and their responses to situations when bringing up a child who has lost its own family.

It is not true that age or weight are automatic bars to adopting. But an adoption agency will need to be satisfied that an adoptive family is of an age and is likely to be in good enough health to bring an adopted child up into adulthood, to minimise the risk of the child suffering a second loss during their childhood.

A family’s application to adopt will go before the adoption agency’s adoption panel. The adoption panel is independent of the adoption agency and includes adopters,adopted adults and a doctor, as well as social workers. They will consider the detailed report prepared by the family’s social worker and make a decision on whether the family is suitable to adopt. The adopters will be able to attend the panel meeting and have a right to an independent review by a national body if they are not satisfied with the decision.

With a positive home study report the search for a child can start. The family’s social worker will work with them in trying to identify the right child for that family. As the TV programme showed, the time this takes can vary greatly. The child’s social worker needs to be sure that the family are right for that child. Where a suitable match is possible, the child’s social worker will meet the adoptive family and give them detailed information on the child’s background and needs. Then the adoption panel will recommend whether there should be a match between the child and if positive, introductions between the child and the adoptive family will begin.

Once the child joins the adoptive family, the adopters will apply to the court for an adoption order. With recent changes in the law this is unlikely to be a difficult process as any opposition by the child’s birth parents to the adoption will have been dealt with by the court before the child was placed with the adopters. If there are unexpected problems in the adoption proceedings, the local authority should pay the adopter’s legal costs for representation. In all, a long journey and not without its challenges, but an opportunity to change the lives of the children waiting for a family to call their own and of the adopters hoping to have a child to make their lives complete, while at the same time giving a future to a child in need.

Naomi Angell specialises in children’s law and has particular expertise in international and domestic adoption,children’s cases with an immigration interface, child protection and alternative reproduction cases, such as surrogacy. She chairs the adoption panel of a national adoption agency and has been closely involved in the parliamentary process of the recent new adoption legislation. She is a Consultant at Osbornes and qualified as a solicitor in 1973. Contact her by email naomiangell@osbornes.net or call 0207681 8687.