1. The standard test
   In summary, the building must consist of living accommodation occupied by people who do not form a single household and who occupy the premises as their only or main home. At least one must be paying rent or providing some other consideration and two or more of the households or individuals sharing the living accommodation must be sharing at least one of the basic amenities.
2. The self-contained flat test
   A self-contained flat can be a HiMO if the relevant requirements of the standard test apply.
3. Converted building test
   This applies only to properties that consist of one of more units of living accommodation created since the building was built, where the relevant requirements of the standard test are also met.
4. A HiMO declaration is in force
   In mixed-use buildings, local authorities can make a HiMO declaration where occupation by people who do not form a single household is a “significant use” of the property.
5. Converted block of flats test
   This applies where buildings, or parts of buildings, have been converted into and consist only of self-contained flats. The buildings are deemed HiMOs if the conversion work does not comply with the relevant buildings standards and if fewer than two thirds of the flats are occupied by people on a lease of more than 21 years.

• provide contact details to each household and display them prominently
• maintain fire equipment and alarms, keep fire escapes clear and, where the HiMO has five or more occupiers, ensure there are clear notices giving the location of fire escapes
• take all reasonable steps to protect the occupiers from injury
• maintain drainage, fixtures and fittings, living accommodation and the supply of water, electricity and gas, including testing fixed electrical installations every five years

Occupiers must not hinder the manager from carrying out his duties and must provide reasonable access when required. They must also take reasonable care not to damage anything that the manager has a duty to maintain, store and dispose of rubbish appropriately and comply with reasonable instructions on fire safety.

Failure to comply with any of the management regulations carries a fine of up to £5,000.

Local authorities have powers to take interim management orders for up to a year in cases where there is a risk to the health or welfare of occupiers. Failure to deal with any risks can result in a final order of up to five years.

HiMOs consisting of three or more storeys and occupied by five or more individuals must be licensed. Failure to obtain a licence or permitting over-occupation of the building is punishable by a fine of up to £20,000. Breaches of licence conditions carry fines of up to £5,000.

Landlords who fail to obtain a licence are also prevented from using section 21 of the Housing Act to recover possession at the end of an assured shorthold tenancy and may be ordered to repay rent.

TAX CREDITS FIASCO BRINGS MORE MISERY
News of another huge overpayment of tax credits means some of the poorest families in Lincolnshire and the Humber region are once again facing unnecessary worry and financial hardship, says Bridge McFarland Solicitors.

Bridge McFarland partner and family lawyer Jacqui Skelton warned that many families would not only have to repay money already received but would also see future credits reduced or stopped.

The Government admitted this week that almost £2 billion in tax credits had been overpaid to nearly two million people.

Mrs Skelton said the situation was so bad that some people entitled to tax credits were now choosing not to apply rather than risk getting into financial difficulties.

“A great deal of hardship is being caused, often through no fault of the applicant,” she said. “I see many clients who have told the Inland Revenue about changes in circumstances but are still receiving money to which they are no longer entitled and may have to pay back.
 
“People facing difficulties should be aware that the Revenue has the discretion to consider waiving recovery of payments because of the likelihood of causing hardship. This has to be done on individual application and it is not guaranteed to succeed but I would like to see more people claiming hardship because the Revenue might then be pressed into action.”

Mrs Skelton added that anyone claiming tax credits should remember the following advice:

• Always inform the Revenue of any change in circumstances, good or bad;
• Always send a letter to confirm what you have told the Revenue and ask for an acknowledgment.

She said anyone concerned about their claim for Tax Credits should either contact their lawyer or local Citizen’s Advice Bureau.

“There have been endless problems since the tax credits system was revamped in 2003 and there is still a general lack of understanding of how the scheme operates,” she said. “Money is paid out on an estimate of a family’s income for the coming year based on their income in the previous year. If a family has a change of circumstances, it can drastically alter the amount of money they are entitled to and overpaid money is recoverable even if the error was made by the Inland Revenue and not the claimant. It has proved to be a recipe for confusion.”

-Ends-

Press release issued by Forest Communications for Bridge McFarland.
For further information, please call:
Jacqui Skelton on 01522 518888
Jonathan Ilott of Forest Communications on 0115 962 2787 or 07733 386688

BASED ON THE RECENT JUDGMENT IN ROTHWELL -V- CHEMICAL & INSULATING CO. LTD [2006] EWCA Civ 27
The Appeal Court has recently held that Provisional Damages should not be awarded to a person with pleural plaques as a result of asbestos exposure. This decision will make a massive difference to the way litigation is carried out in asbestos cases as it will mean that cases were claimants have pleura plaques alone will fail. This will mean that thousands of claimants who could previously claim damages will no longer be able to bring claims.

It has previously been seen that Claimants presenting with Pleural Plaques can be awarded provisional damages. Therefore does this new decision mean thousands of individuals who have developed pleural plaques as a result of asbestos exposure will not be able to bring claims unless they actually go on to contract asbestosis, lung cancer or in the worst case mesothelioma?

What is does asbestos exposure do to the body?
Asbestos fibres will have been inhaled by millions of us at some point during out lifetime. People in their fifties and sixties are far more likely to have been exposed to asbestos as it was widely used in the earlier part of the 20th century to lag pipes, cover roofs and insulate buildings. A child growing up in the 1950’s will probably have been surrounded by asbestos.

When one breathes in the asbestos fibres they will deposit on the alveolar regions. Cells will attack these fibres but many will be too big to be broken down, the attacking cells will die and generate chemicals that cause inflammation of the lung tissue. This, if particularly sever, will go on to cause fibrosis.

Pleural Plaques develop in the pleura, which is a covered by a slippery membrane. The pleura has two layers, the parietal pleura which lines the inside of the rib cage and the visceral pleura which covers the lungs. It is not known how asbestos fibres enter the pleura but they do. When inside the pleura they cause pleural plaques to develop which are localised areas of pleural thickening. It is believed that the presence of asbestos fibres in the pleura lead to a prolonged low-grade inflammatory response as the previously mentioned chemicals are released, this causes the lying down of fibrous tissue – the pleural plaques.

How do pleural plaques affect the patient?
Pleural plaques in 99% of cases have no symptoms. The Claimants in this case were asymptomatic. They had x rays and CT scans which showed that they had pleural plaques but they remained symptom less. What Pleural Plaques may do is “indicate a cumulative level of asbestos exposure at which there is an increased risk of mesothelioma or other asbestos related disorders.” (Dr Rudd “Occupational Disorders of the Lung” 2002)

So do Pleural Plaques constitute an injury?
The court held that they do not alone amount to a cause of action because in the First Instance judgment it was held that the presence of Pleural Plaques, coupled with the anxiety of being told that one has this asbestos related condition and the slightly increased risk of contracting other asbestos related illness gave a cause of action. Unfortunately those acting for the Claimants in these cases conceded that that the pleural plaques alone cold not constitute a cause of action. Faced with this concession the Court of Appeal could take no other view.

The court was of the opinion that Pleural Plaques do not cause an injury and so the second head of the increased risk of contracting an asbestos related illness later in life also automatically failed because no claim can be made in the respect of the chance of contracting a future disease.

The third head of anxiety failed in relation to the first two Claimants because they only suffered anxiety although this was reasonably foreseeable and totally expected it did not arise from a personal injury in the eyes of the court and thus could not be considered. Anxiety alone was not enough to bring a cause of action on it’s own, one would need to suffer more severe psychiatric problems than just anxiety to be deemed to have suffered a personal injury. The view taken by the first instance judge was that although pleural plaques did not themselves constitute and injury they did suggest the claimant had been exposed to asbestos and thus had an increased risk of contracting an asbestos related illness. Holland J held that this was enough to base an award for provisional damages upon.

What have previous cases said?
In Church v Ministry of Defence it was held that pleural plaques had to be considered in conjunction with the other damage to the lungs by the asbestos fibres and the anxiety that this caused the Claimant. Peter Pain J ruled that he could not hold the damage to be merely minimal. The Appeal Court Judges in this case did take the view that the damage was minimal.

In Patterson v Ministry of Defence it was held by Simon Brown J that “one must have regard, not only to the physical manifestation of injury, but also to what ever risks consequent upon the original injury may exist of future symptoms becoming manifest”.

Is this just a policy decision?
Mr Michael Kent QC for the defence put forward a number of policy arguments which the court has accepted. He submitted the ever reliable ‘floodgates’ argument along with arguments stating that personal injury lawyers would pray on those who have been exposed to asbestos and persuade them to have x rays to see if they had pleural plaques in turn this will raise the claimants anxiety levels. This however was not a test case, people had been claiming provisional damages for pleural plaques in the first instance courts for many many years with out the flood gates being opened.

The judges in this cases stated that they felt that the Claimant had put forward a case that was unsound. They could not reach the same view as the first instance judge Mr Justice Holland because where as he had held that the three individual heads on their own could not constitute a cause for action he was able to connect them all together and say that their combined effect did constitute a cause of action. The Lord Justices could not make this connection and thus held that either together or combined the three heads must fail.

1. A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
2. The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions
3. That individuals must retain the right to make what might be seen as eccentric or unwise decisions
4. Best interests - anything done for or on behalf of people without capacity must be in their best interests
5. Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

The Act reforms the law relating to Enduring Powers of Attorney and Court of Protection receiverships. It also makes provision for the assessment of a person’s capacity and regulates actions by carers.

There will be a new test for assessing whether or not a person lacks capacity to make a specific decision at a particular time. It will be "decision-specific". No individual will be labelled ‘incapable’ because they have a particular medical condition. For example it is accepted that those with a learning disability or early-stage dementia may make many of their own decisions, even if they may lack capacity in relation to some complicated issues.

Additionally the Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. The person themselves - their wishes and feelings - and their participation are key. Carers and family members gain a right to be consulted.