Monthly Archives: December 2018

What’s happening in England and Wales?

Rita Bhargava TEPAs I come to the end of my term as Chair of STEP’s England and Wales Regional Committee, I wanted to reflect on some of the developments since I took on the role in January 2017.

Raising our profile

Internally at STEP, much of the emphasis over my time as Chair has been on raising STEP’s profile. From the ‘Talk to a TEP’ public-awareness campaign and accompanying website, advisingfamilies.org, which has seen 130,000 visits and 15,000 ‘Find a TEP’ searches since its launch 18 months ago, to the ‘Grow with STEP’ member recruitment campaign launched earlier this year, which has led to a 250 per cent increase in visits to the ‘Join’ section of the STEP website. It’s great that resource is being put into these important projects, which should help build greater awareness of STEP – ultimately benefiting all members.

Battling probate fees

Externally, my time as Chair has been dominated by political turmoil, the Trust Registration Service and of course, probate fees. The latter has once again reared its head in recent months, and like many of you, I am disappointed the government is again threatening to increase probate fees to extortionate levels that are wholly disproportionate to the costs involved. It has failed to take into account any of the concerns raised last year when this was first mooted. Ironically, it comes at a time when the government is introducing online application processes for probate, and removing the need to swear papers, making the cost of an application cheaper and more efficient. STEP has once again been active in highlighting concerns around the proposed measures, and we are pleased to see our arguments echoed by the House of Lords committees that review Statutory Instruments, which have both stated that the proposals amount to a ’stealth tax‘ and a ’misuse of the fee-levying power’. We hope these concerns are enough to stop the measure being approved as it is debated by parliament in the coming weeks.

Looking ahead

So what’s coming up over the next few months?

Last month, branch chairs from all over the region gathered for the England and Wales Branch Chairs’ Assembly. Over 20 branches were represented, and it was wonderful to meet so many branch chairs. It was a great opportunity to discuss how to increase engagement with members, how to support branches, and to ask branches what they expect from STEP. It was also the perfect time to hear about work being done by STEP, in particular the Member Journey project, which involves examining the experience of a member from their first contact with STEP and throughout their membership to see where improvements can be made. This is an important and far-reaching project, which will be worked on throughout 2019.

Another big project that will be launched shortly is the all-new STEP Directory. 2018 saw the last hard-copy STEP Directory and Yearbook, and in January 2019 STEP will launch the new online-only Directory. The new Directory will build on the existing online member-search facility, with upgraded functionality and new features, such as a Firm Search. Members will have access to an extensive and up-to-date network of firms and practitioners for referral and business development, and clients will be able to search for qualified professionals and firms. As the new Directory will be extensively promoted throughout 2019, you will want to make sure your contact information is current, and your profile properly showcases your expertise and experience. Log on now to update your details.

Separately, work is also underway to upgrade the STEP website to make it more user-friendly; to continue to build on the success of STEP’s Employer Partnership Programme; and to develop STEP’s qualifications so that students can tailor elements of the STEP Diploma so that it is more relevant to their specific areas of practice.

Sadly, I will be stepping down as Chair at the end of December and take this opportunity to welcome Denese Molyneux TEP as Chair from 2019 and wish her every success. I would like to thank all the staff at STEP for their hard work, dedication and continued support.

Finally, may I wish you all a merry holiday season and a peaceful New Year.

Rita Bhargava TEP, Chair, STEP England & Wales Regional Committee

Cross-border protection of vulnerable adults in Europe under discussion

Emily Deane TEPSTEP took part in the EC-HCCH Joint Conference on the Cross-Border Protection of Vulnerable Adults last week in Brussels, to discuss the ratification of the Hague Convention of 13 January 2000 on the International Protection of Adults (the Hague Convention) at EU and global level and the possible future EU legislative initiatives in this field.

The event, organised jointly by the European Commission and The Hague Conference on Private International Law, brought together legal practitioners, judges, academics and government officials who deal practically with the challenges associated with the cross-border protection of vulnerable adults in Europe and beyond.

STEP’s EU cross-border expert Richard Frimston TEP joined panellists to discuss the need for an international and regional legal framework for the cross-border protection of vulnerable adults from the perspective of organisations providing services and/or protection. Richard was accompanied by representatives from Dementia Alliance and Alzheimer’s Disease International, AGE Platform Europe, CEOs in global banking and the President of the International Union of Notaries (UINL).

Richard is the coordinator of the Protection of Adults in International Situations Project Team and spoke on behalf of STEP as a member of the Board and Co-Chair of the Public Policy Committee. He delivered some pertinent points on the need for a protective framework for our increasingly aged society and those living with disabilities, and their supportive loved ones, including family members and guardians, in accordance with their human rights.

He expressed concern with powers of representation which are generally not measures of protection, unless confirmed with sufficient legal process, and the manner of exercise of such powers of representation being governed by the law of the state in which they are exercised. He argued for more balance between the protection and autonomy of individuals, and called for improved methods of powers of representation to be accepted cross-border.

The conference emphasised that this work is invaluable since the Hague Convention determines which courts have the jurisdiction to take protection measures, and which law is to be applied in circumstances when a vulnerable person requires it.

Importantly it establishes a system of central authorities to cooperate with one another and locate vulnerable adults, as well as providing information on the status of vulnerable persons to other authorities. Although much work has been carried out already, more could be done to improve the quality of European law, increase practical guidance in the European legal field and enhance European legal integration.

STEP is asking members for any practical examples of when they have encountered difficulties in practice in relation to England and Wales not having ratified the Hague Convention. Please email STEP’s policy team if you have any feedback on this issue, at [email protected].

STEP will keep you updated on the outcome of these discussions.

Emily Deane TEP is STEP Technical Counsel

Committee draws probate fees legislation to UK parliament’s special attention

Daniel NesbittUPDATE 07/12/2018

The Joint Committee on Statutory Instruments’ full report (PDF) has now been published and includes the following conclusion:

The Committee draws the special attention of both Houses to this draft Order on the grounds that, if it is approved and made, there will be a doubt whether it is intra vires, and that it would in any event make an unexpected use of the power conferred by the enabling Act.

The Committee reached the same view regarding the government’s attempt to raise probate fees in 2017. Underlining this position, the report notes that the Ministry of Justice’s arguments did not ‘dispel the Committee’s doubts about vires expressed in its report on the 2017 Order’.

The depiction of the changes as a ‘fee’ was also challenged by the Committee, which felt the new banded system bore the characteristics of a tax. The report noted that the higher payments were disproportionate to the actual cost of the service and that the measure represented what was in effect a type of stamp duty on probate applications.

The views expressed by the Committee match the legal opinion STEP obtained from Richard Drabble QC in response to the 2017 proposals.

ORIGINAL BLOG 6/12/2018

The Joint Committee on Statutory Instruments has scrutinised the Non-Contentious Probate (Fees) Order 2018, and drawn it to parliament’s special attention.

The committee is responsible for examining the technical aspects of secondary legislation; ensuring that the drafting is correct, clear and within the powers granted by the act under which they are being made. Although it can highlight measures it believes to be of concern, the Joint Committee cannot block or amend legislation itself.

The other committee tasked with examining secondary legislation, the House of Lords Secondary Legislation Scrutiny Committee, in the 6th Report of Session 2017–19 (PDF) has also drawn parliament’s attention to the measure, calling it a ‘stealth tax’.

The next stage for the order in the House of Lords is for it to be voted on; and as an affirmative measure it will require a majority to pass. In the House of Commons a delegated legislation committee will be convened to scrutinise the legislation.

The Joint Committee’s full report on the order, setting out its detailed views, is yet to be published but it is expected to be released tomorrow (Fri 7 Dec 2018).

STEP will continue to monitor the situation and will provide updates where appropriate.

Daniel Nesbitt, Policy Executive, STEP 

UK Labour party tables motion against probate fees rise

Houses of Parliament, LondonThe UK government’s plan to increase probate fees has been criticised by the opposition in the House of Lords.

Labour’s Justice Spokesperson, Lord Beecham, has tabled the following motion of regret in relation to The Non-Contentious Probate (Fees) Order 2018:

‘Lord Beecham to move that this House regrets that the draft Non-Contentious Probate (Fees) Order 2018 will introduce a revised non-contentious probate fee structure considered by the Secondary Legislation Scrutiny Committee to be “so far above the actual cost of the service [it] arguably amounts to a stealth tax and, therefore, a misuse of the fee-levying power” under section 180 of the Antisocial Behaviour, Crime and Policing Act 2014; and that this Order represents a significant move away from the principle that fees for a public service should recover the cost of providing it and no more.’ 6th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee A).

As statutory instruments cannot be amended, this type of measure can put parliamentarians’ disapproval on record, if passed. Motions to regret are usually voted on at the same time as the legislation.

The probate fees order is currently awaiting scrutiny by the Joint Committee on Statutory Instruments. As noted by Lord Beecham’s motion, the House of Lords Secondary Legislation Scrutiny Committee has already voiced its concern [PDF] about the proposals.

STEP will continue to monitor the situation and will provide further updates where appropriate.

Daniel Nesbitt, Policy Executive, STEP 

House of Lords report criticises HMRC’s treatment of taxpayers

HMRCThe House of Lords Economic Affairs Committee has found that HMRC is failing to guarantee fairness for taxpayers by failing to differentiate between users of sophisticated tax avoidance schemes and ordinary citizens who break the law through uninformed or naive actions.

In its report, The Powers of HMRC: Treating Taxpayers Fairly (PDF), the committee found that declining resources had left HMRC unable to tackle tax avoidance and evasion whilst ensuring taxpayers are treated fairly. Highlighting a number of areas where the HMRC’s conduct appeared disproportionate, the committee recommended further work take place to ensure there is sufficient oversight of the department.

The report heavily criticised the process HMRC uses to introduce new powers, noting that too often specific solutions were identified by the department before any consultation on the wider objectives. The committee recommended that HMRC listen more carefully to the views of tax and business experts during future consultations, to ensure new legislation is properly targeted.

The committee said new measures on offshore time limits should be withdrawn, pending further discussions between HMRC and tax professionals. The plans would require those with offshore elements to their tax affairs to keep records for up to 12 years to deal with HMRC questions. Any new legislation should be more proportionate and targeted than the current plans allow.

There was heavy criticism for proposed new civil information powers, which would allow HMRC to seek information from third parties without the agreement of the tax tribunal, or the relevant taxpayer. The committee said HMRC had failed to offer a convincing rationale for the change, and recommended it be withdrawn ahead of further consultation.

The committee also noted that the government has a responsibility to give HMRC sufficient funding to be fair to taxpayers. The Treasury is recommended to assess whether the department is adequately resourced as part of the 2019 Spending Review.

The next stage in the process is for the government to respond to the committee’s findings. STEP will monitor the situation and provide updates on any further developments.

Daniel Nesbitt, Policy Executive, STEP