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Yearly Archives: 2015

Working grandparents and Shared Parental Leave

Working grandparents and Shared Parental Leave

Following the introduction of Shared Parental Leave (SPL) in April 2015, the Government has announced proposals to extend SPL and pay to working grandparents. The proposal stems from the Government’s over-arching aim to increase flexibility and choice in parental leave arrangements and support working parents with the provision of affordable childcare during the first year of their child’s life. In making the proposal to extend SPL, the Government has said that it recognises the crucial role that working grandparents can play in providing childcare and support to their own working children.

SPL was introduced as a means of enabling working mothers to end their maternity leave early in order to share leave and pay with their partner. SPL is currently available only to mothers, fathers, partners and adoptive parents but, by being able to share the SPL with the child’s grandparents, it will provide another option for parents to return to work more quickly. As a helpful by-product, it should also encourage more grandparents to remain in employment, rather than leaving their jobs to help with childcare.

What does this mean for the employer?

Although the extension of SPL has been seen as good news for many working parents, it may be more problematic for employers. With an ageing workforce, the number of working grandparents who may benefit from the proposed extension will be significant: research from the Trade Union Congress indicates that some 7 million grandparents are involved in providing regular childcare to their grandchildren and so allowing their own children to return to work.

If the proposals are implemented, the provisions are likely to be in line with the current statutory SPL scheme and so the entitlement to take SPL will be shared with the child’s eligible grandparents: the grandparents may be able, potentially, to share up to 50 weeks’ SPL. Additionally, eligible grandparents may be able to share up to 37 weeks’ statutory shared parental pay (statutory shared parental pay is currently set at £139.58 a week or 90% of weekly earnings, whichever is the lower). If employers have enhanced provisions for shared parental pay, as they do with, say, maternity pay, they will need to take the same approach with this new entitlement to shared parental pay. This would, of course, add further costs for the employer.

Timescale for new SPL proposal.

As things stand at present, it is intended that the proposal to extend SPL and pay to grandparents will:

• be consulted on during the first half of 2016;
• be brought into effect by 2018; and
• affect working grandparents only.

Employees already have the right to take unpaid emergency leave to care for dependants and to request flexible working provided that they have the required length of service. What do you think the impact of the proposed extension of SPL to grandparents will be for your business?

New Gift Aid Declaration Forms

New Gift Aid Declaration Forms

 

Gift Aid

HMRC has recently introduced new model wording to be used in Gift Aid Declaration forms from September 2015 onwards. This replaces the previous model wording which may no longer be used after 5 April 2016. The three model forms cover (i) one-off donations; (ii) multiple donations; and (iii) sponsored events. The forms are for use by donors and sponsors of charities or CASCs. Although the content of the forms has changed, the new forms are to be used for the same purposes and in the same way as before. HMRC recommends that the new model wording is used but charities and CASCs may adapt the forms and/or add to the wording, e.g. by adding the logo of, or messages from, the charity/CASC and other details.

What has changed?

The new forms are simpler than the previous versions, and in particular they no longer contain unnecessary references to VAT and Council Tax.

The forms are now worded in a way that demonstrates more clearly the value to the charity or CASC concerned of a Gift Aid claim.

They now also include wording making clear that donors have the responsibility to ensure that they have paid sufficient total tax in the year to cover all their Gift Aid donations, and that they have to pay any shortfall of tax where they have not paid sufficient tax in the year. That responsibility is not a new one, but it was not spelt out in the previous model forms.

Impact and unfairness of claiming back tax from donors

If someone has donated £100 to a charity or CASC under Gift Aid but HMRC finds that they were ineligible to do so under Gift Aid (i.e. they did not pay enough tax to cover the donation), HMRC can claim £25 from him (i.e. the amount of tax which the charity has claimed on that amount), so that the donation will have cost him £125 in total. This is not what he would have expected or intended. The charity will then keep the £100 from the donor and the additional £25 it claimed back from HMRC. If instead the charity had been required to pay back that £25 to HMRC, the donor’s only cost would have been his £100 donation, and the charity would have been no worse off than if the donation of £100 had in the first place not been made under Gift Aid.

This approach by HMRC might be regarded as unfair treatment of donors – many of whom will have donated through Gift Aid when they were taxpayers and then mistakenly made further donations through Gift Aid after they ceased to be taxpayers. Apart from the issue of fairness, if HMRC pursues donors in this way, the effect might be to dissuade some people from making donations who would otherwise have done so, and charities and CASCs would then suffer. Indeed, research carried out for HMRC in 2014 found that serious deterrent messages put off eligible donors.

What will be the effect of these changes?

The Charity Tax Group (“CTG”), which represents the charity sector, had both positive and negative points to make about these changes. The CTG stressed that more needs to be done to promote awareness of the changes and that charities need to ensure that they comply with the requirement to adopt the new model forms. The CTG commented that these new shorter forms are easier for donors to understand and that charities welcomed the new forms – since they are shorter and simpler, they are expected to maximize take up by those donors eligible to use Gift Aid. On the down side, the CTG felt that the new forms’ increased focus on the personal tax status of the donor could have a “chilling effect” on some donors and sponsors.

The Low Incomes Tax Reform Group (“LITRG”), a group independent of HMRC which represents low income donors, was more critical of the new wording. The LITRG called on HMRC not to pursue non-tax paying people for any tax due on donations they make to a charity under Gift Aid, their reason being that it would be fairer for any reimbursement to come instead from the charity. The LITRG’s view was that when a person of limited means makes a donation, the last thing the LITRG wanted was for HMRC to pursue him for tax on the donation. The LITRG highlighted the fact that this creates a moral dilemma for charities and CASCs: although legally entitled to keep the Gift Aid tax amounts reclaimed from HMRC, should charities and CASCs reimburse it rather than letting the donors bear the cost of it? If a charity or CASC does not reimburse it, a donor might cancel the donation itself, seeing it as too risky to donate.

What should charities and CASCs do now?

Since HMRC will not accept the old forms after 5 April 2016, it is important that well before that date all charities and CASCs plan the updating of their Gift Aid Declaration forms, their online and printed statements, fundraising scripts and letters for oral declarations, and use up their existing stocks of printed forms and related material. Existing enduring declarations (i.e. declarations covering all future donations, typically used where the donor makes regular gifts to the charity or CASC) do not have to be renewed, and so there is no need to contact donors to update those forms.

Digital Content: All New in the Consumer Rights Act

While the new Consumer Rights Act has brought with it changes to the law governing both goods and services, perhaps the most significant changes relate to digital content.  Until now, digital content was something of a black sheep in consumer law.  Was it goods? Was it a service? Was it both? Answers to these questions were never really very satisfactory.  Now, however, the Consumer Rights Act has grabbed the bull sheep by the horns and made digital content into a proper category in its own right.

Digital Content Requirements + Remedies

Good news for consumers: new rights and remedies for digital content contracts

The rules relating to digital content are, by design, very similar to those relating to goods.  Digital content must be of satisfactory quality, fit for purpose, and as described (this includes compliance with information provided under the Consumer Contracts Regulations).

Despite the fact that the Consumer Rights Act clears up the confusion over what digital content actually is, there will still be occasions where the rules on goods and services will come into play, for example where the digital content is the product of a service provided to the customer, or where it is sold on physical media (i.e. goods).

What Digital Content is Covered?

The statutory definition of digital content is “data produced and supplied in digital form”.  It therefore includes a wide range of content types including apps, games, music and video.  The product of services may also be counted as digital content.  Popular examples here might include websites and digital photos.

As for how the content reaches the customer, as far as the Consumer Rights Act is concerned, this is in many ways immaterial.  Physical media, download, stored in the cloud, streamed… any way, any how.

For the most part, only paid digital content is covered.  There is an exception where the digital content damages a consumer’s data or device, but we’ll look at that below.  Digital content is “paid for” when it is supplied for a price, or when it is supplied with something else for which a price is paid and isn’t generally available to customers unless they have paid for it or for goods, services or some other digital content.  An example of free content like this would be free software given away with a paid-for magazine.  Paid digital content also extends to things paid for with “a facility for which money has been paid” – commonly things like purchased virtual currencies (every parent’s favourite, the in-app purchase).

Digital Content Requirements

CRA Digital Cont Requirements  
First of all, digital content must be of satisfactory quality.  This requirement is, for the most part, the same as its goods-related counterpart.  As for what “satisfactory quality” is in this context, this isn’t a fixed requirement and will take account of the customer’s reasonable expectations, the price, the description given by the trader and other factors such as public statements made by the trader (in advertising, for example).  The key point here is that the standard is flexible.  A 99p photo filter app won’t be held to the same standard as Photoshop!

Further important points to note are that digital content will be judged according to its state and condition, the purposes for which the relevant type of content is normally supplied, its safety and durability, and whether or not it is free from minor defects.  On this last point, this doesn’t mean that a bug in an app now constitutes a breach of contract!  Again, the standard will vary according to the type of content.  An audiobook with a chapter missing or corrupted audio would not be of satisfactory quality in the eyes of the law.  A piece of software with some bugs in it, on the other hand, is all but inevitable even with the best attention to detail and quality control, and the law understands that.  Another important thing to be aware of is that – as with goods – if you make the customer aware of a particular defect, its presence cannot later count against the digital content being of satisfactory quality.

The next requirement, again familiar to those who deal with goods, relates to fitness for purpose.  This will include any purposes the customer has made known to the trader as well as particular purposes “as a matter of custom”.  Traders providing bespoke digital content to consumers in particular should keep this one in mind.

Next up is another goods-like requirement: the digital content must be as described.  Another way to put it is that the digital content must do at least what is described.  There is nothing preventing you from making it do more than you’ve said it will.  This is also important to keep in mind when issuing updates and enhancements for digital content in the future.  Just because a piece of software, for example, now does more things than it did when the customer bought it, it doesn’t mean that it is no longer “as described”.

On a related note, unlike goods, there isn’t any requirement that digital content matches any samples, models or trial versions.  On the plus side, this means that you aren’t tied into offering features, say, in a final version that were in a trial but that didn’t work out.  Nevertheless, while the unscrupulous trader might be inclined to take advantage of this and offer samples and trials that promise more than the final version delivers, good business sense would dictate otherwise.  Moreover, trial version or no, the digital content must still match its description.

A final compliance point relates to information provided to customers under the Consumer Contracts Regulations.  As with goods and services, any such information (including points such as the main characteristics of the digital content, its functionality and compatibility) will be incorporated into the contract, thus meaning that the digital content must also comply with that information.

Since digital content, particularly software, is often updated post-release, how do these requirements sit with updates? The simple answer is that they continue to apply to the digital content where the contract gives the trader or a third party the right to modify that content.  The Consumer Rights Act explains that this will not, therefore, prevent the addition or enhancement of features.  A question that seems to be unaddressed at this stage, however, relates to the removal of features.  As frustrating as it may be for a user, it isn’t unheard of (especially in this age of mobile apps and games making the silent transition from premium to freemium) for updates to remove or limit features that were present when the customer originally made the purchase.  At this point, then, we would advise caution, and will look into this aspect of the Act again once traders, lawyers and – if the issue reaches such a level – the courts have had the opportunity to weigh in.

Getting the Digital Content to the Customer

 Timing is everything.  It’s a common phrase, and in this case, one that’s particularly relevant to the requirements outlined above.  If the digital content is being transmitted “under arrangements initiated by the trader”, it must comply with the requirements either by the time the content reaches the customer’s device, or by the time it reaches the customer’s ISP (Described in the Act as “an intermediary with whom the customer contracts for delivery of digital content” – meaning that while the ISP is the most likely entity to fit the description, it may be a different party in some cases).

What does this mean in real terms? After all, if you’ve done your job properly, the digital content complies with the requirements before it’s even left your hard disk.  The point here is that if the digital content fails to comply, for example, because of a problem with your customer’s ISP, you won’t be at fault.  If, on the other hand, there is no intermediary (or at least not one that you don’t have some sort of direct or indirect contractual control over) and the digital content doesn’t comply when it reaches the customer, then you will be responsible.  Once again, however, it is important to remember that these rules exist to protect customers from unscrupulous traders.  Ensuring that digital content is up to scratch and that it reaches your customers safely really goes without saying, or at least we hope it does!

A further point relates to so-called “facilities for continued transmission” and “processing facilities”.  This may be particularly relevant if you are providing on-going cloud-based services to your customers which entail the transmission of data from the customer to your servers and vice-versa.  The Consumer Rights Act requires that the period throughout which such a service should remain available should either be fixed in the contract or, where it isn’t fixed, should be “a reasonable time”.  In addition, the digital content must continue to comply with the requirements we have covered above for that period.

What If There’s A Problem?

Because you’re here reading this, you’re quite obviously a trader that wants to be clued up and good to your customers!  Nevertheless, however hard you may try, there may sometimes be occasions where things go wrong.  In those cases, it’s important to know what remedies your consumer customers may be entitled to.  As with the requirements concerning quality, fitness for purpose and compliance with description, the remedies are not dissimilar to those concerning goods.

CRA Digital Cont Remedies

First up, if the digital content does not comply with the requirements (including pre-contract information relating to its material characteristics), the customer has the right to a repair or replacement.  The customer may request one or the other (unless one would be disproportionate compared to the other), and it is the trader’s obligation to comply within a reasonable time and without significant inconvenience to the customer.  Any costs associated with carrying out a repair or replacement must be borne by the trader.  As to what a “repair” is where digital content is concerned, it is a rather awkward term, but it essentially means making the non-complying digital content comply with the contract.  To use software as an example, then, a patch would qualify as a “repair”.

The remedies differ slightly in cases where the trader fails to comply with pre-contract information provided under the Consumer Contracts Regulations other than that which relates to the material characteristics of the digital content.  In such cases, the customer only has the right to recover any costs incurred as a result of that failure (up to the price paid for the relevant digital content).

If the trader has supplied digital content that they have no right to supply, the customer will have the right to a refund.

If a repair or replacement can’t be (or isn’t) carried out because it is impossible, or has not been performed within a reasonable time or without significant inconvenience to the customer, the customer may be entitled to a price reduction which can be anything up to the full price originally paid for the digital content in question.  As to how this will be calculated, the rule of thumb is that the refund should reflect the difference between what the customer has paid for and what they have actually received.  As in the case of goods and services, refunds should be made using the same payment method originally used by the customer unless they agree otherwise (so no refunds using IAP currencies – gold coins, miracle fertiliser or whatever else dismayed parents may find on their bank statements!).  Once again, as with goods and services, you may not charge customers for issuing refunds, and they must be made without undue delay, and in any case within 14 days starting on the day that you agree that your customer is entitled to the refund.

A notable difference between the digital content remedies and the goods remedies is that with digital content, unlike goods, you are not limited to only one opportunity to repair or replace the digital content.  That said, however, more than one attempt may constitute “significant inconvenience” for the customer in some scenarios.  The number of attempts at rectification, therefore, will depend on the circumstances rather than a limit that is set in stone.

Another key difference between goods and digital content remedies is the absence of a right to reject.  This, we would suggest, is largely borne out of practicality.  Ensuring the deletion of digital content from a customer’s device would be very difficult in many cases, and since the price reduction remedy can be anything up to a full refund, an additional right to reject could have been considered superfluous.

As we pointed out above, for the most part these requirements and remedies apply to content that is, at least in some way, paid for.  There is however one remedy that applies to any digital content, even that which is free.  If you supply any digital content to a consumer under a contract and that digital content damages the consumer’s device or other digital content that belongs to them, and that damage wouldn’t have occurred had you exercised “reasonable care and skill”, the consumer may be entitled to a repair at your expense or to compensation.

Closing Thoughts

For more than a decade, digital content sales have been a hugely significant part of doing business, and it has taken the law a surprisingly long time to catch up with reality and start treating digital content as it treats goods and services.  Now, though, we’re finally there.  At the risk of repetition, as with the changes in the law on goods and services, these new provisions should not present many (if any) surprises, and any trader worth their salt should already be complying as a matter of course.

Nevertheless, the various requirements with which digital content must comply and the various remedies open to consumers if it doesn’t are now presented in black and white, clear for all to see and it is important that traders providing digital content to consumers understand the law, their obligations and their customer’s rights.

As this is a new category of commodity in the eyes of the law, it will be interesting to see as time progresses how traders and trade practices adapt and adjust.  As we noted above, it seems that traders who want to make alterations to digital content, especially software, need now to be particularly careful.  If you are a trader dealing in digital content, how do you feel about the new rules? Do you think it’ll just be business as usual or do you now feel trapped in a creative box?  As ever, we would love to hear from you, so don’t hesitate to leave us your responses in the comments section below.

By Iain Mackintosh

Fit for Work Opens for Business

Fit For Work Opens For Business

Image by Ucniss

As of 8 September 2015, employers in England and Wales are able to refer employees to the new Fit for Work occupational health assessment referral service. This is a new Government service that offers a free voluntary occupational health assessment for employees who are off work through illness or injury for at least four weeks.

In particular, the service is aimed at small and medium-sized businesses with little or no occupational health support. However, it is also intended to complement existing occupational health provision for larger employers.

Given that 31% of workers are employed by organisations with no occupational health support (YouGov) and around 815,000 working people each year have sickness absence of four weeks or more, the Fit for Work initiative looks to be a useful one.

However, according to the Chartered Institute of Payroll Professionals, only one in four organisations expect to use the service. So, why the reluctance?

Probably for two main reasons: firstly, the service is voluntary and employees can simply refuse to be referred; and, secondly, referrals cannot be made until the sickness absence has lasted for four weeks – a long period of absence for any small or medium-sized undertaking to handle.

Still, given that employers and employees alike have expressed a desire for more support in encouraging employees back to work after prolonged sickness absence, this service – described as ‘free, expert and impartial’ – has to be a step in the right direction in controlling long term sickness absence.

To learn more about changes to the government’s Fit to Work scheme, you can read our newsletter that covers the subject in more detail.

In the meantime, we would love to hear what small business owners think about the changes. So please, contribute to the debate in the comments section below.

By Iain Mackintosh

European Court Rules Mobile Workers Travel Time Counts as Work

The Working Time Directive

Image by Pixabay

Last week, a European Court of Justice (ECJ) decision found that, for workers with no usual place of work, time spent travelling to appointments from home should form part of a worker’s working day. The ruling came about because of an ongoing legal case in Spain involving a company called Tyco, which installs security systems.

At present, working time is defined in The Working Time Regulations as:

• Any period during which the worker is working at his or her employer’s disposal and carrying out his or her activity or duties;
• Any period during which he or she is receiving relevant training; and
• Any additional period designated as working time under a relevant agreement.

Working time includes travelling where it is an integral part of the job, e.g. a travelling sales executive or a care worker. This includes travel during normal working hours and travel between sites or clients, since the travelling is an essential part of the work.

The Working Time Directive

The Working Time Directive sets down regulations on matters such as how long employees work, how many breaks they have, and how much holiday they are entitled to. One of its main goals is to ensure that no employee in the EU is obliged to work more than an average of 48 hours a week.

In its ruling, the ECJ said time spent travelling to and from their first and last appointments should be regarded as working time under the European Working Time Directive. The judgment explained that excluding those journeys from working time would be contrary to the objective of protecting the safety and health of workers upheld by EU law.

A groundbreaking decision

This is an important decision for employers with mobile workers, i.e. those without a fixed place of work. Such employers will need to consider how they calculate working time – for example, in relation to the maximum weekly working hours, which could mean that employers will have to ask staff to opt out of the Working Time Directive’s 48-hour working week.

If employers don’t do this, employees could quickly exceed the number of working hours that they are legally allowed to work and employers could find that they are operating illegally and at risk of facing costly claims against them.

Although this case was not concerned with remuneration, there still may be wage implications for employers. For instance, employees may argue that time spent travelling to and from their home for customer visits should count for the calculation of the national minimum wage.

Employers may, therefore, wish to give thought to scheduling the first and last customer visits of the day close to a worker’s home.

Do you employ mobile workers? How will these changes potentially affect your business? Please join the debate in the comments section below.

By Iain Mackintosh

Everything You Need To Know About The Small Business, Enterprise and Employment Act 2015

The Small Business, Enterprise and Employment Act 2015

Image by neetalparekh

This blog looks at what the new Act is, its implementation into law, key changes and what you should be doing now to prepare for some of the more significant changes due to take place.

What is the new Act?

The Small Business, Enterprise and Employment Act 2015 received Royal Assent in the last days of the previous parliament. The Act contains a number of measures which together represent significant change for companies and Companies House customers. The Act is being phased in over a nine month period, with the most significant (and controversial) changes due to come into force in 2016.

The government’s stated aim is that the Act should reduce red tape for SME businesses whilst increasing the quality of information on the public register. It also aims to enhance transparency and ensure the UK is seen as a trusted and fair place to do business.

When is it being implemented?

Certain parts of the Act are already in force and the rest will come into effect over the next nine months, with the bulk of the implementation being in 2016. There are, however, certain important changes in relation to the way directors consent to their appointment (as company directors) that are due to come into force on 10 October 2015.

For our updated template material in relation to this new consent procedure, click click here.

What are the key changes?

One of the major changes is that there is to be a register of ‘persons with significant control’ over companies. Private companies must maintain a register of people who hold – directly or indirectly – more than 25 per cent of the shares in a company from April 2016. This information must also be filed with Companies House as of June 2016.

However, for some companies, this register will prove a big and troublesome exercise, and could be said to fly in the face of the government’s red tape challenge and objective of saving time and money for companies.

Another important change is that the requirement to submit an annual return to Companies House will be abolished. Instead, companies will be required to confirm once a year in a ‘confirmation statement’ that the filing of statutory information is up to date and notify of any changes.

Yet there is concern that some companies will confirm everything is up to date without checking to see whether this is actually the case, and over time the quality of the Companies House register may deteriorate. Furthermore, the register may also become progressively harder to use, as the current ‘snapshot’ approach of the annual return is lost.

What should I be doing now?

Simply-Docs has produced a range of documents to cover the parts of the Act that have been implemented already. In addition, we have produced this information page, which includes headline points that SME businesses need to be aware of and their implementation dates.

We will add to our range of documents in due course. as and when other implementation dates approach. However there are some practical steps that companies can take to prepare themselves, particularly in preparation for the new register of ‘persons with significant control’.

This includes finding out who has significant control of the company now, before contacting these people to confirm their shareholding and explain the types of information that they will need to provide to the company going forward. Doing this now will make the whole process of meeting your company’s statutory obligations much easier in 2016.

By Iain Mackintosh

Residential Landlords Watch Out – Section 21 Notices Just Got More Difficult!

On 1 October 2015, significant changes were made to housing law in England (properties in Wales are not affected). The changes which are set out in the Deregulation Act 2015 increase the level of protection afforded to tenants, while placing extra burden on landlords.

Buy-to-let investors are still coming to terms with the budget bombshell concerning the reduction of tax relief on mortgage interest payments. How much will these 1 October 2015 changes add to their woes?

What has changed on 1 October?

The most important changes affect landlords’ ability to recover possession of their premises at or after the end of the term of an assured shorthold tenancy. Section 21 of the Housing Act 1988 allows landlords to remove tenants on a ‘no fault’ basis, provided they serve notice correctly and there are no factors that serve to invalidate the notice.

From 1 October there is a longer list of invalidating factors – or, in other words, there are more obstacles in the way of landlords seeking possession. There are also changes to the timing of a Section 21 notice and the timescale for issuing possession proceedings. And there is a new prescribed Section 21 notice which landlords must use.

Readers should note that the changes referred to below only affect tenancies that start on or after 1 October 2015. Tenancies granted before that date are not affected. However, from 1 October 2018, the new provisions will apply to all tenancies, regardless of when they were granted.

Validity of Section 21 Notices

Until 1st October 2015, there were two factors that could invalidate a Section 21 notice: failure to protect the tenant’s deposit in an approved tenancy deposit protection scheme and failure to comply with HMO licensing requirements.

On 1 October, several more restrictions came into play. Landlords are now unable to serve a valid Section 21 notice if:

1. The tenant has made a valid complaint about the condition of the property and, instead of addressing the complaint, the landlord serves a Section 21 notice. This is known as ‘retaliatory eviction’. This restriction comes into play where the local authority has served an improvement notice or an emergency remedial action notice under the Housing Health & Safety Rating System (HHSRS).

2. The landlord has failed to provide the tenant with any of the following: a valid energy performance certificate, a current gas safety certificate or a copy of the publication ‘How to rent: the checklist for renting in England’, published by the Department for Communities and Local Government.

To clarify because this is important: failing to give your tenant a copy of the ‘How to rent’ document means you can’t serve a valid Section 21 Notice!

Timing issues

Prior to 1st October 2015, some landlords and agents liked to issue a Section 21 notice at the start of the tenancy. This was deemed to be unfair to tenants, so from 1st October it is not possible to serve a Section 21 notice in the first four months of a tenancy. Therefore landlords and agents will need to make and keep accurate records if they want to obtain possession at the earliest possible stage – i.e. after six months.

There is also a new deadline for starting possession proceedings if the tenant does not vacate of his or her own accord. Proceedings must be started within six months of the date of service of the Section 21 notice, otherwise a new Section 21 notice must be served.

Prescribed form of Section 21 Notice

A new prescribed form of the Section 21 notice needs to be used to terminate tenancies that start on or after 1 October. Use of the prescribed form is optional for existing tenancies but it is likely that landlords will adopt the new form for all tenancies. From 1 October 2018, the new form must be used for all tenancies.

Any other changes?

As well as the changes to the Housing Act discussed above, landlords and agents need to be aware of the new Smoke and Carbon Monoxide Alarm (England) Regulations 2015 which came into force on 1st October.

Carbon monoxide incidents are more common in rented property than in privately owned homes, and these new regulations are part of a wider effort to improve fire safety in the UK.

The regulations require a smoke alarm to be installed on each storey of premises on which there is a room used wholly or partly as living accommodation (this includes bathrooms and toilets). They also require a carbon monoxide alarm to be present in any room that is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance. On the first day of a new tenancy, the landlord or their agent must check that each alarm is in proper working order.

Local housing authorities have enforcement powers.

Many properties, particularly those built in recent years, will already be equipped with alarms that comply with the regulations. However, landlords and agents should carry out an audit of their properties to identify deficiencies and remedy as soon as possible.

What should landlords and agents do now?

Landlords and agents should familiarise themselves with the new rules relating to termination of tenancies. A range of new and updated template documents is available on the Simply-docs website.

As we all get to grips with the new regime, we would love to know what landlords and agents think of these changes. Do they strike a fair balance between the interests of landlords and tenants? Will the “how to rent” publication be a useful addition to the tenancy paperwork? Please contribute to the debate in the comments section below!

By Iain Mackintosh

The Consumer Rights Act New Requirements & Remedies for Services

New requirements and remedies should increase certainty and happiness for all

New requirements and remedies should increase certainty and happiness for all

The main provisions of the Consumer Rights Act 2015 are now in force and a large number of our document templates have been reviewed and updated to help you in getting along with the new Act.  As well as bringing many different pieces of legislation together, the Act has also brought with it some new requirements for traders to comply with and remedies to help protect consumers when things don’t work out.  In this post we’ll be taking a look at the rules covering the provision of services.

Legal Requirements for Services

When it comes to the requirements set out in the law, it should come as no surprise (or if it does – as a pleasant one) that your legal obligations do little more than echo good business sense.

What is important here from the legal point of view is the actual performance of the service, not the end result (but let’s face it – you want to keep your customers happy so the end result should be quite important to you!).  As for what “reasonable skill and care” is, that will take account of various factors, including prevailing standards in your particular industry or sector, and the price paid for your services.

CRA Services Requirements Infographic 1 Blog Sized

What about the reasonable price and time requirements? For the most part, you won’t find these mentioned in our templates because these rules apply only if the relevant information has not already been given to the customer, or is not already included in the contract (or the customer has not paid a price).  The bottom line: you should always ensure that your customer knows what’s going on.  By making sure that any and all information given to the customer at all stages (both before and after any contract has been made) is detailed and clear – especially on these points – it will be what you have agreed between you and not what the law implies when it comes to price and time for performance that matters.  Again, your goal should be a happy customer and keeping people in the dark doesn’t usually lead to that outcome – so this should be an easy requirement to meet and you have most likely been meeting it since day one!

New Rules on Information

As under the recent Consumer Contracts Regulations, any information you provide to your customers about yourself or your services can be taken as a contractual term.  In addition, the Consumer Rights Act bestows similar status on information provided voluntarily where that information is taken into account by the customer when deciding whether or not to enter into a contract, or where it is taken into account when the customer makes a decision about the service after entering into the contract.

It is important to note that this does not tie you to everything you say – any qualifying statements made at the same time will be taken into account when determining whether or not something you have said or written to the customer should be treated as contractually binding.  Nevertheless, when considering statements made in advertising and other forms of marketing, this is an important point to be aware of.

Returning briefly to the Consumer Contracts Regulations and, more specifically, the pre-contract information requirements that they set out, any such information will also be treated as a contract term.

So what if things change? The key point to the rules governing the binding nature of information given by traders to consumers appears to be the prevention of unilateral changes or – to put it in blunter terms – getting the customer’s business by promising one thing, but actually giving them another.  The information can be changed, provided both the trader and the customer expressly agree to it.  Once more, then, although these are legal requirements and breaching them could have serious ramifications, if you are running an honest business and not trying to mislead your customers, compliance should be a virtual given.

What Could Possibly Go Wrong?

 If something goes wrong and it turns out that you have not complied with your obligations in some way, the Consumer Rights Act has introduced new remedies for consumers purchasing services.

Services Remedies - Consumer Rights Act 2015

If the service is not performed with reasonable skill and care, the customer will have the right to repeat performance.  If that isn’t possible, or isn’t done within a reasonable time or without inconvenience to the customer, they will have the right to a reduction in price (up to the full price for the service).

If the service isn’t performed within a reasonable time (though remember what we said above about specifying such information in the contract), the customer may have the right to a price reduction.

What about the all-important information? If the service isn’t performed in accordance with information you have provided about it, the same remedies of repeat performance and price reduction will again apply.  If, on the other hand, the problem relates to information you’ve provided about yourself (as opposed to the service), the only remedy on offer from the Consumer Rights Act is a price reduction.

Repeat Performance

The goal of this remedy is to put things right, leaving the customer in the position he or she would have been in had the service been performed correctly in the first place.  The “repeat” part, then, doesn’t necessarily refer to the whole kit and caboodle – you must only perform the service again to the extent required to ensure compliance with the contract.

This must be done within a reasonable time and without causing your customer significant inconvenience.  What’s more, you must not charge the customer for repeat performance – the cost is yours to bear and yours alone.

Remember, if the repeat performance can’t be carried out within a reasonable time, without significant inconvenience to the customer, or if it is simply not possible, the customer should be given a price reduction.

Price Reduction

 In cases where your customer may be entitled to a price reduction, this can be any amount up to and including the full price.  The Consumer Rights Act refers to the price reduction being of “an appropriate amount” – this essentially refers to the difference in value between the service the customer should have received and the value of that which they have actually received.  Remember also that the customer may be entitled to a price reduction if you have provided incorrect information about something else, for example, your business.

Where the customer has already paid something, they may be entitled to a refund as a result of the price reduction.  Under the Consumer Rights Act, refunds must be given “without undue delay” and in any case, within 14 calendar days starting on the day that you agree your customer is entitled to the refund.  Unless the customer expressly agrees otherwise, you must use the same payment method originally used by the customer when they paid in the first place – so no refunding them with useless vouchers when they paid by debit card!  Finally, you may not impose any fee on the customer for issuing the refund.  But you weren’t going to do that anyway, were you?

Onward!

 It is, without a doubt, important to be aware of your obligations under the Consumer Rights Act, and the remedies open to consumers should you fail to comply with those obligations in some way.  With that said, nothing here should come as a particular surprise and, as we have noted more than once, if your goal in business is to keep your customers happy and informed, complying with these rules should be a cinch.

Join us in our next blog post for details on the new digital content provisions of the Consumer Rights Act and in the meantime, feel free to drop us a line with any comments you might have on your life as a service provider under this shiny new legislation!

By Iain Mackintosh

The New Consumer Rights Act & Sale of Goods

The Consumer Rights Act enhances rights and remedies for consumers

The Consumer Rights Act enhances rights and remedies for consumers

Quality Requirements

The most important consumer protection laws remain: goods must be of satisfactory quality, they must be fit for purpose, and they must match any descriptions or samples given to customers.  So what’s new?

New and Existing Goods Requirements

Goods must also match any model seen or examined by the customer. You aren’t tied into this, however. If there are differences between the goods you will sell to the customer and the “model”, as long as you have made the customer aware of those differences, all will be well.

Next up is a provision relating to the installation of goods. If, as part of the same contract, the goods are to be installed, they must be installed correctly or the goods will be treated by law as not conforming with the contract.

The third new provision in this category relates to digital content. If goods include digital content, that content must conform to the contract just as much as the goods themselves. If not, the goods will not conform in the eyes of the law.

Finally, where you are required to provide pre-contract information to a customer (such as that required under the Consumer Contracts Regulations), that information is automatically treated as implied terms in the sale contract – terms with which your goods must comply.

In essence, then, these new requirements simply extend the existing protection given to customers, ensuring that the goods sold to them are of suitable quality. From a trader’s perspective, then, nothing at all to worry about!

Remedies

In an ideal world, goods would always be exactly right, free of any faults, and customers would always be happy with their purchases. In reality, of course, things sometimes go wrong.

Remedies for faulty or damaged goods

At present, customers have “a reasonable time” within which to reject goods if they aren’t up to scratch.  The Consumer Rights Act stamps a 30-day deadline on this right.  You can extend it if you wish, but unless the goods are perishable and would be expected to have perished after a shorter period, the deadline cannot be shortened.  By putting a specific time period on the right, the Act should remove a lot of uncertainty over what exactly “reasonable” means.

Next come the so-called “tiered remedies”:  the customer has the right to a repair or replacement.  If the customer requests or agrees to a repair or replacement during the 30-day short-term rejection period, the 30 days stops running while the customer waits for you to repair or replace the goods.  Once the customer has received the repaired or replaced goods, the short-term right to reject lasts for at least another 7 days or, if the time remaining on the original period is longer, that longer period (as extended by the time taken to repair or replace the goods).  An important new proviso is that you have one opportunity to repair the goods or to issue one replacement.  After that, if things still aren’t right, or if a repair or replacement is impossible, it’s onward to the next tier: price reduction or the final right to reject (after the first six months, subject to some limited exceptions allowing deductions within the first six, the final right to reject may be subject to deductions for any use or enjoyment the customer has had out of the goods).

As for the burden of proof, the situation under the Consumer Rights Act is unchanged: within the first six months after purchase, the assumption is that the problem existed at the start.  After the first six months, the customer must prove that the problem existed at the start.

What Else?

Although the main bases are covered here, do keep in mind that this is only an overview.  This is a blog, after all, not legal advice!

A few other key provisions to keep in mind will already be familiar to those distance and doorstep sellers among you, derived as they are from the Consumer Contracts Regulations: By default, unless you have agreed otherwise with the customer, goods should be delivered within 30 days.  The risk in those goods will remain with your good self until they come into the customer’s physical possession (or that of someone else identified by the customer).

So – in a nutshell – there you have it.  After reading this no trader should be worrying that business is about to become any more burdensome.  Much of the Consumer Rights Act focuses on consolidation and clarification.  That said it is important to make sure that you understand your obligations and your customers’ rights and how they will change in October.

As for your documents, we’re on the case.  Our templates are being updated right now to help you to comply with the Consumer Rights Act, giving customers helpful pointers on their rights and giving you a structure that should help you to play nice with the rules.

In our next blog we’ll be looking at the services provisions of the Consumer Rights Act.  In the meantime, we want to hear from you.  How do you feel about the new Act? What are you doing as a trader to prepare? Join us in the comments for a chat!

By Iain Mackintosh

New Consumer Protection Laws Coming Soon

Consumer Rights Act 2015

Image by Rodeimi

If you are a trader dealing with consumers, chances are you will have heard something about the Consumer Rights Act 2015 by now.  Coming into force in October this year, this new piece of legislation is designed to make the business-to-consumer trading experience much clearer and simpler on both sides of the equation.

Consumer law in the UK is currently made up of over 100 separate pieces of legislation.  For anyone involved, from customers to lawyers, this is at best an inconvenience and at worst, down right confusing!  The Consumer Rights Act draws much of this material together, placing it into a single, modern Act that covers the sale of goods, services and digital content – a relative newcomer to consumer protection legislation.  Other key topics, in particular unfair contract terms, are also brought into the fold.

In many cases, the law remains largely unchanged.  There are however some important new provisions, not least those concerning digital content, consumer remedies for sub-standard services, and rules relating to unfair contract terms. The Consumer Rights Act 2015 comes into force on the 1st October.  Here at Simply-Docs we are busy reviewing our large portfolio of business-to-consumer templates, ensuring that they’re fully up-to-date and compliant with the new Act.  Over the coming weeks we will also be publishing more helpful information about the Act right here in the Simply-Docs Blog and we welcome your questions and comments.

In the meantime, what should you be doing?  For now, keep calm and carry on (you knew we’d have to use the phrase eventually).  The current law remains in force until the 1st October.  We will be rolling out updated templates as October approaches, along with more information and updates to help you get ready.  Stay tuned for more on the Consumer Rights Act in the coming weeks!

By Iain Mackintosh

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