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We aim to provide practical guidance on useful areas of busness law.  

By brocs1, Apr 14 2021 09:40AM

Are you having issues with the Student Loan Company? Has Student Finance England rejected your application for student finance? Do you know you have the right to appeal their decision?


If you have found yourself in such a situation, then it is important to know that you have the right to appeal if you do not agree with the decision.


‘The Student Finance England, Assessing Eligibility Guidance’ for caseworker’s clearly stipulate that caseworkers should not apply a general rule of thumb to all applications, and that each application should be considered on its individual merits. However, as with most organisations, rules are not interpreted correctly, and a general blanket decision is applied which can lead to a rejection of an application.


Often, we see applications for student finance being refused on the basis that the applicant has “not satisfied the relevant three-year residence period in the European Economic Area (EEA) and Switzerland prior to the first day of the first academic year of the course”.


Such a situation recently occurred to a student after the course had already started. The student instructed Summerfield Browne Solicitors in his appeal against the SFE.


Background


The applicant had emigrated to the UK at a very young age and had attended primary school and secondary school in the city that was now his hometown. The applicant’s father had obtained employment outside of the UK when the applicant was 15 years old, and because of this new role, the applicant, being a minor, had no choice but to move abroad to live as a family unit.


Although the father had accepted employment outside of the UK, the role was temporary with no intention of becoming permanent. Furthermore, the Country that the family moved too had legislation in place that differed to the UK – in that, a temporary employment meant just that – temporary and no amount of ‘time worked’ would qualify as a permanent role.


As the intention to undertake that role away from the UK was always temporary, the father ensured the running of their UK family home continued. Mortgage payments were kept up to date, as was council tax payments, utility bills and TV licences. The family home was one which was frequently being used by the family each time they returned to the UK when the father’s work leave permitted. The applicant himself would undertake work experience in the UK each time his school leave abroad would allow as his intention was always to live and study in the UK – this was his home.


The moment the applicant turned 18 and was able to independently live away from his family, he moved back home to the United Kingdom and completed his final year of college before moving onto university studies.


Application to the SFE


An application in the usual way was made to the SFE which was rejected on the basis that the applicant had not resided in the UK for three years prior to making the application.


The Appeal


Based on our client’s living arrangements both here and abroad, and with documents provided to us by the client, we were able to successfully demonstrate along with supporting case law, that the applicant was not only ordinarily resident in the UK at the relevant time but also that the client was settled and had ordinary residence in two countries at the same time.


Having considered all the facts, evidence, and case law, SFE accepted the applicant’s appeal on the basis that the applicant was ordinarily a resident in the UK three years prior to making the application at all relevant times despite not living in the UK during the first two years of the relevant period.


This recent successful appeal demonstrates that the SFE do take into consideration factors that would ordinarily reject an application and that the ‘general rule of thumb’ cannot be applied in each application as each application must be considered on its own individual merits.


If you have recently been rejected for student finance and are unsure of how to proceed or you would like to appeal the SFE’s decision, then do contact our specialist team at Summerfield Browne Solicitors.


By brocs1, Mar 10 2021 11:29AM


1. Attachment of Earnings

If the creditor has a CCJ then you could apply for an Attachment of Earnings Order. This would only apply if the debtor is employed. This is a court order compelling the debtor’s employer to make a deduction from the debtor’s earnings which is then paid to the court. The amount of the deductions will depend on the debtor’s earnings taking into account the protected earnings threshold. Provided an order is made, deductions will then be made until such time as the debt is paid in full or the debtor’s employment comes to an end.


2. Charging Order

If the debtor owns a property, then you may be able to have the debt secured against the property. Once a charging order is granted by the court, this is registered at H M Land Registry to protect the creditors position should the property be sold. Once a charging order has been obtained, you can consider making an application to the court for an order for sale to determine the monies owed or alternatively allow the charge to remain on the property until such time as the property is sold. The debtor may not always have sufficient equity in the property to discharge the debt, but this is often a useful tool to use in pressurising a debtor to pay.


3. Statutory Demand

A Statutory Demand is a demand for money you are owed under a CCJ ,which states that you intend to issue Bankruptcy Proceedings against the debtor if the debt is not paid within 21 days or you fail to reach an agreement to pay. At present the bankruptcy petition minimum amount is £5,000 for an individual and the winding up petition amount is £750 for company. This is an expensive option and there is no guarantee of any return after a bankruptcy order has been made.


4. Enforcement Officer

An Enforcement Officer will attend the debtor’s property with a view to obtaining payment either by accepting payment and/or taking goods to the value of the claim to be sold at auction. An Enforcement Officer can not force entry into a residential property and therefore this option can be problematic if the debtor refuses to engage.


By brocs1, Mar 10 2021 11:26AM

Recently the Court clarified the position in relation to Enforcement Agent’s entering a property before entering into a controlled goods agreement.


Prior to the guidance set out by Master Victoria McCloud in Just Digital Marketplace Ltd, enforcement agents would have to physically enter a property before entering into a controlled goods agreement. Such an agreement allows the owner to keep possession of their goods as opposed to enforcement agents seizing them, on the proviso regular agreed payments are maintained. This is often a useful “middle ground” approach where creditors receive payment of debts and debtors are not deprived of their personal possessions.


With the onset of the pandemic restricting the ability of enforcement agents being able to enter homes, Just Digital Marketplace Ltd sought clarification from the court to ascertain whether “digital visits” would be acceptable in circumstances where controlled goods agreements were appropriate.


Master McCloud’s guidance stated that non-entry agreements (i.e. digital visits) would be appropriate during the pandemic, but longer term use of this method of visitation would require more in depth consideration.


This decision is another example of the Courts adapting to the challenges bought on by the pandemic whilst striking a balance between safety and enforcement capabilities.



By brocs1, Feb 2 2021 09:52AM

Harassment is unwanted behaviour from someone which makes you feel distressed,humiliated, or threatened. It could be someone you know, like a neighbour or people fromyour local area or it could be a stranger. The behaviour must happen on more than oneoccasion by the same person to be considered harassment. If you are being harassed and youfeel you are in danger you should contact the police, it is a criminal offence to harass or put someone in fear of violence.


Examples of harassment include:

• unwanted phone calls, letters, emails texts or visits

• abuse, verbal or online

• stalking

• verbal abuse and threats

• An act of violence such as causing damage to property.


Whilst there is no strict legal definition of 'stalking', the Protection from Harassment Act 1997 lists a number of behaviours such as watching or spying on a person, contacting, or attempting to contact a person by any means, monitoring a person’s use of the internet, email, or any other form of electronic communication.


You should record what is happening, keep copies of any email’s texts or social media posts to include the time and dates and the impact it had on you. You can take screen shots to show the exact content of the messages, note any vehicle registration numbers and details of any personal encounters to include what was said, do not get into a discussion with them.


Ultimately it is for the courts to decide if something is harassment or stalking, they will consider whether a reasonable person would interpret same set of behaviours as harassment.


Online Harassment


The development of technology has created other ways for stalking and harassment to occur.There are different types of online stalking i.e., catfishing, hijacking web cameras and virtually visiting people via Google Maps Street View. You can help to protect yourself by limiting the amount of information readily accessible online and by reviewing your privacy settings and limiting your visibility on social media so only family or people you are friends with can view your account and what you are posting.


If you are being harassed on the internet you should try to stop that person from contacting you, for example by 'blocking' them in a chatroom or on a social network. If something makes you uncomfortable on a social network, you can also click the 'report' button.


Try to get evidence of the bullying by making copies of any threatening online conversations, for example by saving emails or taking screen shots.


Formal Steps


The police may issue an informal harassment warning, this informs the accused about the law in relation to harassment and if they receive any further reports in the future, they may take further action which could result in them being prosecuted . If the accused is not charged you may be able to apply for an injunction, the type of injunction would be determined by the relationship with the accused and the harassment suffered. The orders must be reasonable and relevant to the harassment. If the accused breaks the injunction they can be reported to the police or an application can be made to return to court for the injunction to be enforced. If the accused is found guilty of breaking the injunction, they could be sent to prison for up to 5 years, receive a fin or both.


By brocs1, Dec 10 2020 10:23AM

The recent decision in the case of Bell v Ivy Technology Ltd [2020] EWCA Civ 1563, If anything, reminds us of how crucial the drafting of a Share Purchase Agreement can be and how the facts should marry up with reality.


In April 2019, Ivy Technology Ltd entered into a share and purchase agreement for the purchase of shares in five companies. Prior to the completion of the share purchase agreement, it was disclosed that although Mr Bell (second defendant) was not a party to the share purchase agreement, he did in fact, beneficially own 50% of the shares along with Mr Martin (first defendant) who owned the remaining 50%. This was of course significantly different to what the share purchase agreement stated, in that, Mr Martin held “all beneficial rights, title and interest in and to” the individually held shares, and that no other person was entitled to any right in and to such shares – such disclosure to Ivy Technology Ltd was not undisputed.


Ivy Technology Ltd brought a case claiming it was fraudulently misrepresented by Mr Martin; breach of warranty and a claim in restitution argument was also advanced. As Mr Bell was not named on the share purchase agreement, a claim against Mr bell was initially founded in tort rather than contract.


The claimant, Ivy, issued an application for permission to amend its claim form and particulars to include Mr Bell in its breach of warranty claim. The application at first instance concluded that the claimant had real prospect of succeeding in its contention that Mr Bell was liable for breach of the share purchase agreement, even though he was not named as a party and permission to amend was given.


The second defendant, being Mr Bell appealed this decision and the Court of Appeal dismissed each of the 3 grounds and upheld the earlier decision that the Claimant was granted permission to amend its claim to include a claim for breach of warranties against the second defendant. Amongst the reasons the CoA gave, they stated that they could not rule out the possibility of Mr Bell being held liable under the contract at trial once a factual investigation had taken place and the reasons why he was not named as a contracting party becomes known. The court contended that an explanation was required as to why the share purchase agreement failed to name Mr Bell as a party to the contract.


If you are looking to sell your shares or make a purchase and you are unsure about how you are affected or what your rights may be then do contact our specialist team at Summerfield Browne Solicitors on 0800 567 7595 or email [email protected]



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