Tayntons LLP Solicitors News

Rachel Weldrake, Family Law Solicitor, Tayntons LLP, Gloucester reports on the alleged Service Personnel & Veterans Agency mistake

Wed, 16 May 2012 15:22:00 BST

Armed Forces Pension Schemes are complex and have always presented something of a challenge for divorce lawyers. The main issue arises around the date that serving members can take their pension benefits compared to the date when a former spouse in receipt of a pension sharing order can receive their pension benefit entitlement.

Serving members of the armed forces can leave and take an immediate pension from the age of 55 (provided they meet certain service criteria). If a member leaves service before they are aged 55 they become a deferred member of the scheme and the pension benefits built up before 2006 are paid from the age of 60 and those built up after 2006 are paid at the age of 65 but can be taken earlier on an actuarially reduced basis.

If a pension sharing order is made against a member of the armed forces scheme the date upon which the former spouse can take their benefits was dependant upon which scheme the serving member was in. If the serving member was in the Armed Forces Pension Scheme '75', the former spouse would receive their benefits at the age of 60 or when the order is implemented if later. If the serving member was in the Armed Forces Pension Scheme '05', the former spouse would receive their benefits at the age of 65 or when the order is implemented if later.

This has led to situations where the serving member may be able to retire at the age of 55 on a pension but the former spouse could not. This anomaly was successfully challenged and resulted in a change in legislation which enabled former spouses with a pension sharing order to take their pensions from the age of 55.

It would seem that these legislative changes were not properly applied by the Service Personnel and Veterans Agency (SPVA) who administer the Armed Forces Pension Scheme. Post the legislative changes, the SPVA sent out documentation showing that persons in receipt of a pension sharing order would receive a full pension at the age of 55 rather than an actuarially reduced rate of pension. This information was relied upon by parties, their legal representatives and the courts in reaching financial settlement within a divorce.

Peter Moore of Bradshaw Dixon Moore Limited (who provide actuarially based professional services) reports:

'At least one pension-credit member is said to have been receiving their pension since 2009 and has recently been informed that the SPVA has discovered the error and the pension will consequently be reduced by 50%.

Unofficial reports are that about 120 people are known to be affected by this problem and SPVA have apparently set up a special section to handle the complaints. We understand that SPVA are contacting people they know are affected'

This problem was raised in the House of Commons on 26 April 2012 when John Glen (Conservative MP for Salisbury) is reported in Hansard as saying:

'At least three of my constituents had their final divorce settlements agreed on the basis of their Ministry of Defence spouse's pension levels, as agreed by the actuaries in the Ministry of Defence. They have recently received letters informing them that their pensions will be significantly reduced. Will the Leader of the House urge one of the Defence Ministers to come to the Dispatch Box, apologise and take corrective action so that these three women can have a decent pension, as they imagined they would?'

Hansard reports that in response the Leader of the House said:

'It so happens that there are three Defence Ministers sitting on the Front Bench, all of whom heard that question. The nod of assent from the Secretary of State indicates that he has that problem on board and he will make urgent inquiries. If any injustice has taken place, he will ensure that it is put right'

Our Rachel Weldrake was contacted by a military ex-wife regarding this problem in the beginning of April 2012 and she says:

'The lady who contacted me has a real problem as she reaches the age of 55 in September 2012. Relying on the figures given to her within the divorce proceedings by SPVA she has handed her notice in with her employers. Now she has been advised by the SPVA that the amount of pension she was expecting to receive in September is going to be reduced by at least 21%. This has very serious consequences for this lady who is now in limbo worried about how she is going to manage from September 2012 with this reduced income. She is making every effort to get this issue resolved prior to her reaching the age of 55 but unfortunately the SPVA have not been swift to deal with her enquiries. She has now been put in touch with the SPVA welfare department but they have advised her that it will be a while before an accurate pension forecast can be produced.

I have considered whether this lady should put the matter back before the court who made the original pension sharing order in her case but I am concerned at the cost involved for her and her ex-husband both thrown back into the court system through no fault of their own. It would be necessary for her to obtain leave to appeal the order out of time. The success of her application would depend upon whether or not the problem she now faces is a 'Barder' event. There are four conditions that would have to be met namely:

(i) That the new event invalidates the basis or fundamental assumption upon which the original order was made;
(ii) The new events have occurred within a relatively short time of the order: whilst no precise limit is set down, the guidance from the court is that it is ‘extremely unlikely’ that it could be as much as a year and in most cases will be ‘no more than a few months’;
(iii) The application for leave to appeal out of time should be made reasonably promptly;
(iv) The grant of leave to appeal should not prejudice third parties who have acquired interests in property in good faith for valuable consideration.

Now that this problem is being highlighted and has been raised in Parliament I think my position, currently, has to be sit and wait for what hopefully will be a fair outcome for all those affected. Although I have to say there are two things that trouble me with this approach: (1) it offers no comfort for the lady I am in touch with who really needs this problem resolved before September and (2) it will be necessary for those involved to consider the guidance of the court outlined in (iii) above in that any application back to the court for leave to appeal the original order should be made 'reasonably promptly'.

I urge anyone who is affected by this problem to contact their MP for help and support.

If anyone is concerned and not sure whether or not they are affected by this problem I suggest that they contact SPVA on 0800 169 22 77.

I agree with Peter Moore who says 'It seems completely wrong to reduce someone’s pension in this way, purely because of a SPVA mistake. Hopefully with appropriate publicity and political intervention sense and equity will prevail'.'

For advice on all family matters contact Rachel Weldrake, Solicitor, a member of Resolution and the Law Society's accredited Family Law P anel on 01452 509878 or rachel.weldrake@tayntons.co.uk

Elizabeth Lacey, Family Law Solicitor, Tayntons LLP, Gloucester reports on the Childrens & Families Bill

Fri, 11 May 2012 09:32:00 BST

This year's Queen's speech has set out what the coalition Government intend to deal with during this session of Parliament. Not only are financial issues at the fore, but so too is the family.

Elizabeth Lacey, Family Law Solicitor, Tayntons LLP, Gloucester sets out how the Government's introduction of a 'Childrens and Families Bill' will affect family law practitioners.

This Bill will be reporting on and affecting family law practitioners in two ways:-

1. On family breakdown, the Government will seek to ensure that children retain a continuing relationship with their mother and father if it is in the children's best interests;

2. A faster adoption process.

The aim, according to the coalition, is to provide a 'fairer' system for parents. This is not the same as the legal presumption of 'shared parenting' which was mooted prior to the Family Justice Review in 2011. This is good news as it means that children will not be placed at risk (physical and emotional) by automatic shared parenting.

The speech also set out a plan to speed up adoption and care proceedings so that there will be a six month time limit for concluding matters; some three months less than the usual nine months at present. More support will also be given to disabled children. It is , of course, hoped that this will mean that the affect of delays on children is kept to a minimum, however, whether or not Social Workers in their limited numbers will be able to deal with this will be questionable.

The consultation is due to commence shortly, so we will wait and see what happens.....

For advice on all family matters contact Elizabeth Lacey, Solicitor on 01452 509859 or elizabeth.lacey@tayntons.co.uk

Rachel Weldrake, Family Law Solicitor, Tayntons LLP, Gloucester reports on the requirement to consider mediation one year on.

Wed, 9 May 2012 15:06:00 BST

The 6th April 2012 marked the first anniversary of the Family Procedure Rules 2010 and the new rule requiring couples to attend a Mediation Information and Assessment Meeting (MIAM).

Rachel Weldrake, Family Law Solicitor, Tayntons LLP explained the rule requires divorcing couples, in the case of financial proceedings, and parents in relation to children proceedings, to attend a MIAM prior to the issue of a court application. The couples will be advised as to the availability of alternative ways of resolving their dispute (such as mediation, collaborative law and arbitration). The dispute in question and the couple involved will be assessed to see whether any of the alternatives would offer a suitable way to proceed outside of the court system.

To gauge the effect of the new rule, Resolution ( a group of 6,500 family lawyers and professionals in England and Wales promoting a non-confrontational, constructive approach to resolving family disputes) commissioned a member survey which generated responses from users of over 100 courts across England and Wales. The results showed:-

56% reported that court staff are not regarding it as compulsory that a party issuing an application should produce evidence of attending a MIAM.

78% reported that their local courts are not asking at the first court hearing or even at all, as to whether alternative dispute resolution is appropriate.

The survey revealed a huge variation in how courts in different regions are interpreting the rules. In a recent speech to Resolution members, the President of the Family Division, Sir Nicholas Wall, acknowledged the shortcomings of the new rule:

"May I … apologise for the fact that MIAMs are not working as they should in certain parts of the country. The position is that the government insisted on the 'pre-action protocol' with every would-be litigant going to a MIAM as a pre-condition of instituting proceedings. At the same time the government refused to make attendance at a MIAM compulsory, on the ground that compulsory mediation is a contradiction in terms. The result, in some places, has been that the pre-action protocol is not being followed".

Clearly the new rule has had some effect with the number of children cases in the Principal Registry in London having fallen by 6% since April 2011 and the number of mediation attempts having risen by 51% between 2010 and 2011.

Rachel Weldrake's view at Tayntons is clear – "the rule is there and should be complied with. If disputes can be resolved by way of mediation then this has to be encouraged as often a more cost effective and quicker way of dealing with a case. We are in the fortunate position here in Gloucester in that our local mediation service is currently able to carry out a MIAM free of charge. Therefore the couple has nothing to lose by attending a MIAM and, at least, hearing about alternative options to court."

Rachel Weldrake commented further that: "If the matter proceeds to court then so be it – at least if I am asked by a judge whether a MIAM has taken place I can confirm that it has. If I am not able to confirm this a judge could (a) adjourn matters for a MIAM to take place resulting in delay and (b) make a costs order against the applicant for not following procedure – a position I am simply not prepared to put a client in.

A MIAM referral can also be a useful tool in cases of inactivity. All too often a referral to mediation, in the knowledge that it is a precursor to litigation, can prompt an opponent to swing into action and engage in the process.

For advice on all family matters contact Rachel Weldrake, Solicitor, a member of Resolution and the Law Society’s accredited Family Law Panel on 01452 509878 or rachel.weldrake@tayntons.co.uk

Tayntons LLP Solicitors, Gloucester, Ian Pettifer, Head of Employment Law on "Work & Family"

Mon, 16 Apr 2012 15:52:00 BST

[The following article is reproduced from the Weekend Citizen/Echo supplement - 14/04/2012]

Do work and family complement each other? Or is it too easy to mix up the Crayola with the Clarins, as you get the kids to nursery and yourself to work? Can flexibility for employers fit with a rewarding career and a fulfilling home life?

It is not simply a problem of lazy men, failing to take responsibility for looking after the children. There is a wider cultural problem - seeing women as Supermums who can juggle careers and children instead of seeing childcare as a shared responsibility between mothers and fathers. Employers need to improve the flexibility they give to male employees with childcare responsibilities.

The coalition government is determined to remedy this, through a "cultural change in our society", and some new laws:

In their Consultation on Modern Workplaces, the Government outlined a plan for "a culture of flexible, family-friendly employment practices." Rather than just giving working mothers more rights, they plan to extend flexible working rights more widely and give shared rights to fathers.

Fathers will have the right to time off for antenatal appointments. After an initial 18 week maternity period reserved to women, there will be a new 34-week period of parental leave to be shared.

Flexible working requests (for example for part-time or home working) will be available to all employees with 26 weeks' service, and employers will be obliged to act "reasonably" in considering them.

Employees will have enhanced rights to carry over holiday from one year to the next if they cannot take it due to maternity or parental leave, and employers will be allowed to pay in lieu of part of the annual leave entitlement, or in cases of urgent need, will be able to require their staff to carry part of their holiday to the next year.

Will the coalition government deliver on the new society? The final plans were due out earlier this year, but are still delayed "due to ongoing discussions within Government." Anyone in a relationship or with children will be excused a wry smile when imagining the sort of discussion which is taking place.

Tayntons LLP Solicitors in Gloucester city centre, founded in 1857 have a vision very much of today. Solicitor and Head of Employment Law, Ian Pettifer is a Chartered Member of the CIPD as well as the father of three children. Ian Pettifer can be contacted at ian.pettifer@tayntons.co.uk or on 01452 509080.

Tayntons LLP Solicitors, Gloucester "spice it up" ......

Tue, 3 Apr 2012 11:50:00 BST

The third outing of the popular Tayntons LLP Solicitors, Gloucester Curry Club took place on 28th March 2012 and was an outstanding success.

A number of Tayntons staff were joined by 60 local business people for networking over lunch at the popular Vinings restaurant in Gloucester Docks before a fascinating talk by Richard Graham MP about the plans for Gloucester over the next five years.

The event has received excellent feedback and the next Curry Club will take place on 31st May 2012.

Christopher Price, Solicitor and Partner at the firm commented that the event as a "Great success. We're building on the success of our two previous lunchtime clubs to become one of the premier events for Gloucester business people to come, enjoy some great food and to network in a relaxed environment."

If you would like more information about future events, to be added to the mailing list or you would like to appear as a guest speaker, please contact Elizabeth Lacey of Tayntons LLP Solicitors, Gloucester on 01452 509859 or email: elizabeth.lacey@tayntons.co.uk