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International Data Transfers – 21st March 2024 deadline approaches!

Posted on by Wellers

International transfers of personal data to a recipient outside of the UK may only take place if:

  1. the jurisdiction is deemed to have an adequate level of protection for data subjects’ personal data compared with that of the GDPR; or
  2. there are “appropriate safeguards” in place; or
  3. there are only occasional necessary transfers and a particular derogation my apply.

The countries deemed by the UK to have adequate data protection laws are few, including the European Economic Area (EEA) countries, Andorra, Argentina , Faroe Islands, Guernsey, the Isle of Man, Israel, Jersey, New Zealand, Switzerland and Uruguay.

If personal data is to be exported from the UK to any other country then generally the most common “appropriate safeguard” utilised is the approved Standard Contractual Clauses (“SCCs”). Pre-Brexit the EU approved SCCs applied to the UK as they did to every EU country. However, new forms of SCCs approved by the EU were adopted on 4th June 2021 (“New SCCs”).

The UK’s answer to the New SCCs was and is the International Data Transfer Agreement (“IDTA”) which came into force on 21st March 2022.

As well as the IDTA, the UK adopted an addendum (“UK Addendum”) to the New SCCs which is convenient for businesses with data transfers subject to both EU and UK GDPR and/ or who may already have the New SCC’s in place.

Whilst many organisations have utilised the IDTA or the UK Addendum, some organisations have not and have legitimately continued to use the original SCCs. That option ends on 21st March 2024.

Accordingly, it will be a breach of UK GDPR/ Data Protection Act 2018 for organisations internationally transferring personal data relying on “appropriate safeguards” and utilising SCCs unless they do so utilising IDTA or the New SCCs and the UK Addendum.

You should contact us immediately if you need advice in this area to avoid the risk of incurring substantial fines.

Contact Howard Ricklow via email at howard.ricklow@wellerslawgroup.com or by phone on 020 7481 6396.

Commercial Service Charges – Pay Now, Argue Later

Posted on by Joe Reeves

In the recent case of Sara & Hossein Asset Holding Ltd v Blacks Outdoor Retail Ltd, the Supreme Court considered the correct interpretation of a service charge clause in a commercial lease.  The clause related to the conclusiveness of a service charge certificate produced by the landlord in relation to the amount to be paid by a tenant.

The Court held that a landlord’s service charge certificate was conclusive (in the absence of manifest error or fraud) as to the sum payable by the tenant at that point but was not conclusive as to the tenant’s underlying liability for the service charge.

The Background

The key facts were as follows:

  • Blacks was the tenant of commercial retail premises in Liverpool, of which S&H was the landlord, under two successive leases dated 2013 and 2018. Blacks was required under the leases to make payment toward the service charges for the building.
  • The service charge provisions in the leases required that S&H must supply Blacks, on a yearly basis, with a certificate as to the “total cost and the sum payable by the tenant” and that this certificate was to be conclusive in the absence of “manifest or mathematical error or fraud”.
  • Blacks had the right to inspect receipts, invoices and other evidence relating to the service charges. However, Blacks did not have the right to set-off or counterclaim any sum against the service charges.
  • The service charge for 2017/2018 was in excess of £400,000, substantially higher than in previous years. Blacks refused to pay and S&H issued proceedings for recovery.

The dispute turned on the interpretation of the service charge provisions in the leases, specifically the meaning of the words “shall be conclusive” in the context of the landlord’s certificate as to the service charge payable by the tenant.   S&H argued that the clause should be interpreted literally, namely that the certificate was conclusive as to the tenant’s liability.  In other words, a “pay now, argue never” interpretation.  Blacks argued that due to the content of other provisions in the leases including those strictly defining what costs were recoverable as service charges, the clause could not be so interpreted.  Blacks argued that the clause was only conclusive as to the sums S&H had incurred, not what Blacks was necessarily liable to pay.  In other words, an “argue now, pay later” interpretation.  Blacks did not contend that there was manifest or mathematical error in the charges (“Permitted Defences”).

The matter was the subject of extensive litigation, finally reaching the Supreme Court.  The Supreme Court rejected both parties’ interpretations, essentially reaching a halfway house.  By a majority of 4 to 1, it held that S&H’s certificates were binding as to the amount Blacks had to pay on certification (subject to any Permitted Defences) but that this was not determinative of Blacks’ service charge liability.  It was open to Blacks to challenge the amount following payment.  Essentially, the Court concluded that the clause, in its true interpretation, created a “pay now, argue later” regime.   Blacks had to pay the service charges but it had the right to subsequently challenge them.

Lord Briggs, in his sole dissent, criticised the majority’s “imaginative creation” on the basis there was no reason within the lease for the majority’s interpretation.  He said he would have favoured the landlord’s interpretation.

The result of the decision is that:

  • A landlord can enforce payment of service charges due under a certification clause.
  • Payment of a service charge does not prevent a tenant from disputing the liability for such payment afterwards, for instance in relation to any costs excluded under the lease. Where sums are later successfully challenged, the tenant will be entitled to repayment of those sums.

The decision seeks to strike a balance between the interests of landlords and tenants.   It will be welcome for landlords in that it ensures a consistent cashflow.   A landlord has a clear interest in recovering sums it has properly spent on repair from its tenants, with minimal difficulty.   The benefit to tenants is that this provides that the certification as to the sum to be paid to a landlord is not necessarily final.  Where a tenant has legitimate concerns as to service charges it has paid, it retains the right to challenge them later down the line.

A lot will depend upon the specific wording of the lease and the precise facts and circumstances.  It pays for both landlords and tenants to take advice on what costs are recoverable under a lease by way of service charges.  For landlords, that will be important in making decisions about expenditure.  For tenants, it will be important in understanding what sums they are liable to pay.

This article is not intended and should not be relied upon for legal advice,  Should you wish to discuss your matter, please contact Joe Reeves of our Litigation Department on 0207 481 6383 or joe.reeves@wellerslawgroup.com.

Making grants to non-charitable organisations – The dangers and pitfalls that you need to be aware of

Posted on by Katherine Pipe

If your charity provides grants to non-charitable organisations, or intends to do so in the future, this article is for you.

Many charities pursue their purpose by providing grants to non-charitable organisations to fund certain programmes or projects. However, not all charities consider or manage the risks of doing so. What happens if the organisation doesn’t use the grant funding properly? What happens if the organisation is defunct or corrupt? What if a scandal effects the organisation and your charity is tied to it? These risks exist and it is the role and responsibility of the trustees to ensure these risks are mitigated.

Important Differences between Charities & Non-Charitable Organisations

To understand the risks associated with providing grants to non-charitable organisations, it is first necessary to understand the important differences between charities and non-charitable organisations.

Unlike charities, non-charitable organisations are not restricted by charitable purposes or public benefit. As a result, non-charitable organisations have the ability to do a lot of things that charities cannot. For example, they can:

  • pay dividends to their shareholders;
  • provide private benefit to stakeholders; and
  • undertake activities that are aimed at non-charitable purposes.

On the other hand, charities are required to carry out activities in line with their charitable purpose for the public benefit. As a consequence, when providing grant funding, charities need to ensure the grant will only be used by non-charitable organisations to fund projects or activities that are intended to further the charity’s purpose for a public benefit.  Significantly, if grant funding is used inappropriately by a non-charitable organisation, there is a risk that the charity might lose its charitable status. Therefore, it is crucial that charities and their trustees take steps to mitigate these risks.

We have summarised the key ways to do so below.

Due Diligence

Before providing a non-charitable organisation with a grant, you want to make sure you have undertaken sufficient due diligence on the organisation. Depending on the circumstances, you may want to look at:

  • The nature of the organisation (e.g. is it incorporated, who are its directors, where does it operate, what does its ordinary business entail).
  • The financial stability of the organisation.
  • Whether the organisation has undertaken similar projects or programmes in the past, and if so, whether they have been successful.
  • The organisation’s mission statement and values.
  • The organisation’s reputation.
  • How decisions within the organisation are made.

There are many advantages to undertaking due diligence. It should help assure you and your co-trustees that:

  • The organisation is genuine, reliable and competent to carry out the project or activity being funded.
  • The organisation is suitable for your charity to work with and fund.
  • You will be able to check and confirm that your charity’s funds have been properly used in line with its purposes.

Overall, the trustees of a charity need to be satisfied that awarding the grant is in the best interests of the charity. Due diligence provides an opportunity to expose any potential issues that trustees might have been otherwise unaware of. In this way, it is an extremely important undertaking as if the due diligence reveals concerns, the trustees may decide against awarding the grant to that specific organisation due to it not being in the charity’s best interests.

Trustees should ensure they record the findings of their due diligence and the reasons for choosing a particular organisation because if something goes wrong, the trustees may need to be able to explain and justify the decisions they made.

Charities should consider whether a policy should be adopted that outlines the due diligence requirements, especially if the charity often provides grants to organisations.

Grant Agreement

Once your charity has identified a suitable recipient of the grant, the next step is ensuring the grant will be governed by an appropriate agreement. This agreement should be in writing and should contain (amongst other things):

  • A requirement for the organisation to only use the grant in specific ways, which must be in line with your charity’s purpose for the public benefit.
  • A requirement for the organisation to account for how the funds have been used and report on the progress of the project/program.
  • A requirement for the grant funds to be returned to the charity if the organisation fails to comply with the requirements of the agreement.

Failure to formalise a grant agreement can lead to misunderstandings around how the grant should be used, and may lead to the funding being misappropriated for non-charitable purposes. Therefore, it is of great importance that charities have written grant agreements that are properly executed by both the charity and the organisation.

Moreover, it is of importance to have a well-drafted grant agreement in place as the Charity Commission may request to see it to verify that funds are being used appropriately.

Monitoring

Once a grant is provided, monitoring should then take place as charities need to ensure that the grant is used for the purposes specified in the grant agreement. Monitoring can take a variety of forms and depending on the requirements in the grant agreement, may include (amongst other things):

  • The organisation providing receipts showing how the grant was spent.
  • The organisation providing photographic evidence of the project or programme funded by the grant.
  • The organisation providing a report describing how the project or programme achieved the specific purpose.
  • The charity visiting the organisation’s premises to witness the project or programme.

It is important for charities to carry out monitoring both to ensure legal compliance with their charitable purpose, but also to maintain the confidence of their donors.

Next steps

If your charity needs help with its grant-giving policies, procedures or agreements, please reach out to our specialist charities team. We can help in a variety of ways, including by drafting your grant-related policies, drafting your due-diligence procedures, and preparing a template or bespoke grant agreement.

Please contact Katherine Pipe on kate.pipe@wellerslawgroup.com or call 020 3831 2666 to discuss your charity’s requiements.

All I want for Christmas….is to see my child

Posted on by Wellers

When a relationship breaks down and there is a child or children involved, the courts do not generally intervene unless there is a dispute.  It is up to the parents to agree the arrangements between them.

In an ideal world, parents would automatically work together and there would be a shared care arrangement with the children sharing equal time with each parent.  However, it is not always possible for the children to be able to share their time equally between their parents and their extended families.  It can sometimes be disruptive for the children and does not always work given work commitments, the logistics of where parents live or the structure of many family routines.

Moreover, when a relationship breaks down more often than not, emotions can run high.  Issues concerning child arrangements can be incredibly emotional and stressful.  This is especially the case, on the lead up to the Christmas period when extended families wish to meet and be together during the festivities.

With this in mind there are some obvious but important principles to follow to make arranging contact easier this Christmas and into the New Year.

  • Always put the children first. It may sound like common sense, but it must be a priority for both parties.  Equally, the Court’s paramount consideration whenever dealing with a Children Act application is the welfare of the children.  It is always deemed to be in the children’s best interests that they should have a relationship with both parents unless more harm would be caused to the children by having a relationship with that parent.
  • Communicate with the other parent and be flexible. It is important that parents communicate with each other at all times concerning issues in respect of your child(ren).
  • Plan ahead and record the agreement reached into a Child Arrangements Agreement. A member of our Family Law Department can assist you in recording an agreement into a legally binding document so as to provide certainty and consistency moving forward for you and your children.

We offer a fixed fee consultation for up to an hour with a member of our Family Team either by telephone, Teams or in person for £100 plus vat.

The Family Department at Wellers Law Group provide extensive family law knowledge and expertise combined with sympathetic, personalised advice tailored to your individual circumstances and requirements.

Our Family Lawyers are members of Resolution (formerly the Solicitors Family Law Association) and are committed to resolving your matter in a constructive and non-confrontational manner whenever possible.

Please call us on 020 8464 4242 to talk to a family solicitor on your options.

 

Children arrangements following separation

Posted on by Wellers

Broadly, there are two routes for making arrangements for children after you separate and these are the same whether you intend to divorce or you have no plans to do so in the foreseeable future.

If you can agree the arrangements for contact following separation, this is by far the most preferable route. Going to court is invariably stressful, time-consuming and difficult in many ways; it may also become extremely distressing for your children if the situation becomes acrimonious.

When both parents agree

If you both agree about how much time the non-resident parent (the one who does not live with the children on a day-to-day basis) can spend with the children, then you don’t need to complete any official paperwork.

However, it may be a good idea to write down what you have agreed. You might want to draw up a parenting plan that records some of the main decisions you make about child arrangements; this could include:

  • regular days that the non resident parent will spend time with the children
  • the details of overnight stays – pick up and drop off times etc.
  • arrangements for major holidays and celebrations, such as school holidays, birthdays and Christmas
  • how and when details need to be agreed for taking children away on holidays3when and how other types of contact might occur – phone calls, messenger chats, Skype calls etc.
  • other contact arrangements such as making time for grandparents

A parenting plan can cover all sorts of other child-related issues, such as what might happen in an emergency and how certain decisions will be reached, such as schooling, medical treatment, religious upbringing, etc.

A parenting plan is an informal document and its contents are not enforceable; however, it can be a useful tool to get you thinking about the needs of your children in the longer-term and how you and your ex-partner will handle these issues.

If you want a legally binding plan in place for you and your children, a family law solicitor can help you apply to the court for a consent order. You and your partner will need to apply to the court on a C100 form and there is a fee to pay.

When parents don’t agree

If you and the other parent cannot agree on the arrangements for your children following separation or divorce, a family law solicitor can help you to apply to the court. Your situation will dictate which type of court order or orders you will need in relation to your child or children.

Unless you are a victim of domestic abuse, or there is another compelling reason, you will need to have attended a meeting about mediation before applying for a court order.

A child arrangements order

‘Child arrangements orders’ have replaced contact and residence orders. This type of order specifies:

  • where the children will live (and with which parent)
  • when and how they will spend time with the non-resident parent
  • other types of contact: for instance when (weekends, evenings) and how (phone, Skype, messenger etc.)

A specific issues order

For issues relating to your child’s upbringing you will need a ‘specific issues order’ which can include items such as:

  • the school they attend
  • whether they will have a religious upbringing
  • specific health related issues and treatments, such as immunisation and blood transfusion
  • extra-curricular activities.

A prohibited steps order

A prohibited steps order can stop the other parent from doing certain things and making certain decisions about the child. Such as:

  • removing the child from the jurisdiction
  • removing the child from school
  • contact with certain people, such as friends and other members of the other parent’s family

What the court will consider

If you apply for a court order in relation to your child (or children) the court will consider their wishes and feelings, their physical, emotional and educational needs, the effect any changes may have, their age, gender, character and background, the possible risk of harm to the child and the ability of the parents to meet the child’s needs.

The child’s best interests will be at the heart of any order made by the court. Please note, the above orders do not deal with child maintenance issues which are handled by the Child Maintenance Service. Find out more about child maintenance here.

Applying for a court order

Either parent can apply for a court order or anyone with parental responsibility. Grandparents, other family members or any other person can make an application to the court, but before doing so they must seek permission from the court to do so (leave of the court).

The court provides guidance on making an application, but your solicitor will be able to explain all you need to know.

Before filling in form C100 you must prove to the court that you have attended a Mediation Information and Assessment Meeting (MIAM). You will need to send the court fee and three copies of the form along with the original application form.

Court hearings

You will almost certainly be required to attend at least one court hearing in relation to your court order application. The Children and Family Court Advisory and Support Service (Cafcass) will be in contact prior to the hearing and a Cafcass family court adviser will usually attend.

The process which allows the court to make a decision in relation to arrangements for children can be lengthy. At the first hearing the judge will want to establish what you and the other parent can agree upon, what you can’t agree upon and if there is any particular risk to the child’s wellbeing.

You and the other parent will be encouraged to reach an agreement at the hearing. If you do agree and the judge feels there is no immediate concern in relation your child’s welfare, the process can end there. A consent order will be drawn up that includes everything you have agreed and you will both be legally bound to stick to the terms of the order.

Parents who can’t agree

If you can’t reach an agreement at the first court hearing. The judge may ask you to attend mediation sessions with the other parent or you might be asked to attend a ‘Separated Parents Information Programme’; a SPIP course provides information and guidance on how to reach an agreement and how to manage conflicts in relation to the arrangements for children (you will not have to attend the same session as the other parent). Ultimately, the course aims to help parents put their children first during a separation or divorce.

The judge may also decide that a Cafcass report is needed. The family court adviser will arrange to speak to your child and a report will be sent to the court. You will get a copy of the report.

You can decide to reach an agreement at any time. Once this happens, the court will stop the process and an appropriate order will be written.

Family Law Guidance and Information

Our family law solicitors have written an invaluable, free to download Guide to Children Matters on Separation.

You can email an enquiry to enquiries@wellerslawgroup.com or call 020 8290 7992 for our Bromley team, 01732 457575 for Sevenoaks, 020 7481 6393 for central London or 01483 284567 for our Surrey team.

We offer a fixed fee, no obligation one hour interview so that we may provide you with initial advice and suggest the options for your next course of action.

Changes to Visa schemes for STEM specialists

Posted on by Wellers

At last, some Positive news for international students who wish to gain valuable work experience in the UK after studies. Boris Johnson has unveiled a new post-study work visa that allows international students to work in the UK for two years following graduation, reversing a 2012 decision by then home secretary Theresa May.

Johnson’s offices said that international students make up half of all full-time postgraduate students in STEM subjects. It is hoped that the new category will help recruitment and retention of the strongest global talent, while also promoting opportunities for future breakthroughs in science, technology and research.

New Global Talent Visa Scheme for STEM Subjects

Preparations for Brexit – and possibly even a no deal Brexit – are having an inevitable impact on UK immigration and employment law, giving immigration solicitors plenty to think about.

Now, following the announcement of recent changes to the Shortage Occupation List, the government of Boris Johnson has announced it is considering a so-called “Global Talent” visa for individuals with demonstrable excellence in science, technology, engineering and mathematics (STEM) subjects.

Johnson’s aspiration to “cement the UK as a science superpower” will begin with Tier 1 Exceptional Talent being rebranded as the new Global Talent visa category for which both EU and non-EU nationals will be eligible if they meet the criteria of ‘elite researchers and specialists’ in STEM subjects, and are either beginning their careers or have already established international recognition and reputation.

Immigration methods from Australia

Furthermore, the prime minister has asked the Migration Advisory Committee to consider the suitability of an Australian-style Points Based System. In fact, Johnson has been keeping a close eye on the immigration policies of the similarly conservative Australian government; just last year its immigration department piloted something it called the Global Talent Scheme.

There has been long-standing criticism of the current Tier 1 (Exceptional Talent) scheme, particularly from immigration solicitors, with many claiming it is inefficient and unnecessarily complicated to the point of being unfit for purpose. It is a heavily reference-based system in which, say critics, well-connected applicants may have a significant advantage over equally or more qualified but less well-connected peers.

The new Global Talent visa scheme would not have a cap – unlike the current Tier 1 which is capped at 2,000 applicants per year. However, unless the new scheme can reform systemic problems with Tier 1, this may be irrelevant; the 2,000-cap limit has never actually been reached.

How will Global Talent work?

Successful applicants will be issued with a three-year visa and will become eligible for indefinite leave to remain in the UK at the end of this period. As well as receiving permanent right to reside in the UK, they will be able to bring their dependants (spouses and children) to reside with them. Dependants will then have full access to the NHS, state education and the labour market.

Furthermore, candidates need not meet a minimum salary threshold and the status will not be tied to a specific job, meaning that the applicant will not need to have a confirmed job offer before arriving in the UK (unlike the existing Tier 2 route for skilled workers). Additionally, the new scheme will enable UK research institutes and universities to provide endorsement to exceptional candidates who have not been awarded a research fellowship.

The government also proposes the creation of an additional criteria that confers automatic endorsement (subject to immigration checks). Any person, of any nationality would be able to apply under the Global Talent scheme “fast-track” category.

Simplified

It is difficult to predict the full potential impact of the Global Talent visa. However, it does appear to be simpler than the Tier 1 (Exceptional Talent) scheme and should result in growth in the number of applicants. However, Britain’s scientific leaders are generally not in favour of Brexit and they are unlikely to feel that the Global Talent scheme sufficiently compensates for the post-Brexit ‘brain drain’ they anticipate.

Immigration solicitors in London and the South East

The Wellers Law Group can provide expert legal advice on immigration visas, appeals and more. UK immigration law is complex and ever-changing, so having a legal team of experts behind you during an immigration application or appeal hearing is crucial.

Contact Wellers today for an initial discussion of your situation, so that we can help you move forward with your immigration issues.