Dementia and the World of the Arts

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I recently read a very moving and interesting article in The Observer of 16/7/2017 by Nicci Gerrard called “Say it with a picture or a song”. It resonated with me for certain  reasons, primarily because of the work we do here with adults with incapacity and our involvement with Project Ability Glasgow, an art project creating opportunities for people with disabilities and mental health issues.

As Nicci Gerrard explains “A few weeks ago turning on the radio, I hear a voice saying that creative writing can help wounds heal faster. Startled I turn the volume up. Volunteers were given small wounds; half were then asked to write about something distressing in their life, the other half about something mundane. The wounds of the confessional writers healed substantially more quickly. A thought or a feeling is felt on the skin. Our minds, which have the power over our bodies, are in our bodies and are our bodies: we cannot separate the two. Words, self expression, can tangibly help pain and suffering. Art can be medicine for body and soul”- potent words indeed.

An all party parliamentary group inquiry into the arts, health and well being has been gathering evidence over the last two years and has come to the unambiguous conclusion that the arts used appropriately by health professionals can help with some major social challenges of an aging population, long-term illness, loneliness and mental health ,saving money in the health service. As Lord Howarth of Newport co-chair of the all party group said “The arts have a vital role to play for people with dementia. Research demonstrates that visual arts, music, dance, digital creativity and other cultural activities can help to delay the onset of dementia and diminish its severity. This not only makes a huge difference to many individuals but also leads to cost savings. If the onset of Alzheimer’s disease ( which accounts for 62% of dementias) could be delayed by five years, savings between 2020 and 2035 are estimated at £100bn. Those are powerful statistics, but this isn’t just about money; the arts can play a powerful role in improving the quality of life for people with dementia and for their carers”.

There are projects the length and breadth of the country in theatres, galleries, community centres hospitals and care homes. As Nicci Gerrard describes” I attended one of the monthly sessions at the Royal Academy in London where people who have been art- lovers through their life- and are art-lovers still come to talk about a particular work, led by two practicing artists. We sat in front of an enigmatic painting by John Singer Sargent and there was an air of calmness, patience and above all time and there were no wrong opinions. There are many ways of seeing. People with dementia are continually contradicted and corrected, their versions of reality denied: it’s Sunday not Friday; you’ve already eaten your breakfast; I’m your wife not your mother; anyway you are old and she is dead….In this humanising democratic space, people were encouraged to see, feel, remember and express themselves. Slowly at first they began to talk. There was a sense of language returning and of thoughts feeding off each other. They were listened to with respect and were validated.”

Nicci Gerrard also mentions in her article the film “Alive Inside”. It is a documentary which follows social worker Dan Cohen founder of the non-profit making organisation Music & Memory as he fights against a broken health care system to demonstrate music’s ability to combat memory loss and restore a deep sense of self to those suffering from it. Nicci Gerrard points to an emotive example “an old man with advanced dementia sits slumped in a wheelchair. He drools; his eyes are half closed and it’s impossible to know if he is asleep or awake. A few times a day, soft food is pushed into his mouth. Then someone puts earphones on his head and suddenly the music that he loved when he was a strong young man is pouring into him. His eyes open and knowledge comes into them. His toothless mouth splits into a beatific grin. And now he is dancing in his chair, swaying. And then this man –who doesn’t speak any longer –is actually singing. The music has reached him, found him, gladdened him and brought him back to life.”  The arts creating a miracle of which there should be more as we realise the wonderful benefits of the artistic world.

To find out more about Project Ability, please visit http://www.project-ability.co.uk/

Don’t let your Business Be Disempowered

Powers of Attorney are most often talked about in the context of personal matters but they are equally important in business. Some years ago a partner in a well known law firm of Glasgow solicitors fell unexpectedly and seriously ill. He spent six weeks in intensive care followed by months of home convalescence before happily making a full recovery. At their first meeting after the onset of the illness, his fellow partners looked at each other and at the various routine papers which required his signature, and realised they had fallen into the trap of failing to offer to themselves the advice which they would automatically have given their clients.

So please let me emphasise that if you are a sole trader or run a small business putting in place a Power of Attorney could be vital to the survival of your business if you suffer health or incapacity problems. Let us suppose you are a sole trader and you have been in an accident and are unable to run your business. If the business accounts are in your name only and you have no Power of Attorney in place no one else would be able to access them, but bills will still have to be paid and so on. This could affect the credit rating, reputation and customer relationships of the business, let alone any family relying upon your income.

To avoid this, all that is really involved is a straightforward legal document saying who would administer the business if you became incapable of doing so. If you do not have a Power of Attorney in place any family member or friend who wanted to step in to run your business would have to apply to the court for Guardianship which is a slow procedure and can take up to a year by which time your business may be no more.

If you are a business person it’s likely that you believe a Power of Attorney is a good idea so I urge you to take it further and find out more. Please contact me Andy Lindsay by email at al@mitchells-roberton.co.uk or by phone on 0141 552 3422

LET IT

LET IT – be known that letting agents can be sanctioned for failing to comply with Tenancy Deposit Scheme rules.

For the first time, a letting agent, rather than a landlord, has been penalised since the introduction of regulations imposing an obligation on a landlord to secure deposits even if that landlord has appointed a letting agent.

Largs-based agents, Colvin Houston, were fined for £750 (reduced to £500 for an early guilty plea) for failing to secure two tenancy deposits on behalf of landlord clients totalling £925.

Trading Standards had received a complaint from a landlord who argued that the letting agent had engaged in an “unfair commercial practice” in terms of the Unfair Trading Regulations 2008. Under the 2008 regulations, a commercial practice is considered “unfair” if it fails to meet the special standard of skill and care to be expected in the trader’s field of activity.

Trading Standards successfully argued that paying a deposit into an approved scheme is the standard of care reasonably expected of a letting agent and failure to do so is an offence under consumer law.

Colvin Houston tried to argue that the landlords in question were not consumers but commercial landlords. This was not accepted by the court and a fine was levied.

If you are a letting agent and would like advice on your obligations please contact Paul Neilly on 0141 552 3422 or pdn@mitchells-roberton.co.uk

Family Law –Some Urban Myths

I have been practising family law for quite some time now and over the years it never fails to surprise me that many people still hold strongly to a number of misconceptions about family law in Scotland.

The woman will automatically get custody of the children- NO

In Scotland, the Children (Scotland) Act 1995 replaced the words “custody” or “access” with the words “residence” and “contact”. Basically when parents separate there is no legal requirement to have any orders granted in relation to children unless there is genuine dispute in which case a Sheriff or Judge will decide on the basis of what is in the best interest of the child. If it is considered that it is better for a child to stay with his/her father then residence will be awarded to the father.

Child maintenance stops when a child becomes 16- NO

A parent’s responsibility to financially maintain a child lasts until that child is 25 years of age if the child is still in full time education or vocational training. The duty is owed by both parents towards the child, so that a child over the age of 16 who is at college can seek maintenance from both parents. Normally when a child of separated parents lives at home, one parent fulfils the obligation to aliment by providing bed and board whilst the other parent pays child maintenance.

If a divorce is your fault you will be punished for that financially-NO

In Scotland the only ground of divorce is the irretrievable break-down of marriage. The breakdown may be proved in a number of ways, for example non-cohabitation for a period in excess of two years or one year if your spouse consents, or unreasonable behaviour on the part of the other spouse or adultery. A spouse’s behaviour even if unreasonable has no relevance to a financial settlement unless it can be shown that the behaviour has impacted adversely on the couple’s finances, such as a serious gambling habit.

A pension is not matrimonial property-NO

A pension has a monetary value and is counted as part of a married couple’s matrimonial property in the same way as money in the bank is treated as matrimonial property. The pension has a value based on how much is held within the fund at the date of separation. A pension can be divided on divorce by way of a pension sharing order and if such an order is implemented a portion of one spouse’s pension is removed from his or her pension fund and placed in a pension fund nominated by the other spouse. The sums are not paid out until retirement. Alternatively the value of the pension can be offset against another aspect of the matrimonial property, for example, the former matrimonial home so that one spouse receives less from the house because they have a larger pension.

My husband and I separated a couple of years ago – he has now inherited a large sum from his late father and I want half- NO

Money inherited or gifted from a third party is not matrimonial property. In addition any money or assets accumulated by a spouse after the date that the parties separated is not matrimonial property. You are therefore not entitled to any of your father in law’s estate.  Money that is inherited or gifted can be converted into matrimonial property if received during a marriage and for instance is used to buy a family car. In that event, upon divorce the money is not automatically reimbursed but account of the source of the funds can be taken account of, when negotiating how a couple’s assets are to be divided.

Unmarried couples have pretty much the same rights as married couples – NO

While many income related benefits and tax credits may not take account of the married status of a couple, this does not mean that cohabiting couples have the same rights as married couples on the breakdown of their relationship. The Family Law (Scotland) Act 2006 did bring in a number of changes to the law of cohabiting couples including rights to make a financial claim against your former partner if you can show that you have suffered economic disadvantage in the interests of the family. This is not the same as being able to claim a share of matrimonial property acquired during the period of the marriage. In addition it is only a capital sum that can be claimed and not maintenance, unlike married couples. On death the differences are also substantial. Married couples have an automatic right to inherit certain parts of their spouse’s estate on death, irrespective of whether there is a will or not. In the case of a cohabiting couple however, there is no automatic right and if there is a will which does not mention the surviving partner then they have no right to inherit at all. If there is no will, the surviving partner can make a claim against the estate of their deceased partner but must raise a court action to do so.

If you need advice on any family law matters I can help. Please contact me Fiona Wayman on 0141-552-3422 or by email fhw@mitchells-roberton.co.uk

Staff Development at Mitchells Roberton

Mitchells Roberton are proud of their nurturing approach towards their staff and I feel privileged to play a part in this.  Keri Russell joined the firm straight from school when she was 17 and began working as my legal secretary in 2005, having spent her first while here as a general office assistant. When Keri was working for me I helped her understand the ins and outs of purchase and sale transactions and the legal language involved. Keri was encouraged by the firm to progress her career in law and began studying at Strathclyde University where I am delighted to say she obtained her qualification as a residential conveyancing paralegal in 2009. Frances Clark, Diane Coats, Patricia McGuigan and Michelle Sloan similarly were supported and motivated by the firm to take up studies  at Strathclyde University to attain qualifications as paralegals in civil court work and private client work.

The encouragement of staff to reach their higher potential is a constant within the firm and I am pleased to say that again three of our young office staff have recently embarked on courses at  Strathclyde University to achieve paralegal qualifications. Sarah Ramage, who is my secretary at the moment, has started studying a residential conveyancing paralegal course. She has completed her fourth assignment and her enthusiasm is catching although her future promotion will leave me without a secretary again!  As Sarah says “I am delighted to have been given this opportunity by Mitchells Roberton . I did not want to go to college after school as I was unsure what I wanted to do. Starting off with general office duties in a legal office gave me the idea that I would like to become involved  in property law so when the firm suggested that they help me through a residential conveyancing paralegal qualification I didn’t have to think twice before jumping at the chance. So far I am really enjoying it and am glad to say I am doing pretty well and want to keep that up.” Rachel McLean is also studying for the same qualification as Sarah. She has submitted her first two assignments and received excellent marks. She too very much welcomed the chance the firm offered. Emma McCutcheon has started a course to become a paralegal in private client work. Emma has said “I am loving this course. I study most evenings for an hour or so after 5 o’clock and a bit at the weekend. I recently handed in my first assignment and was astonished to get 100% and I have now submitted my second assignment. Fingers crossed  I get a good mark.”

We all wish Sarah, Rachel and Emma the best of luck with their studies and look forward to attending their graduations next year.

Tougher Rules on employing illegal workers under Immigration Act

The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”

The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.

UK employers already have to carry out immigration checks before employees start employment.  Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:

“By making the test more objective we are making it easier to prove the offence.”

Employers must now undertake three checks in order to comply with the law:

  1. Obtain the employee’s original documents as prescribed in the Home Office Guidance.
  2. Check, in the presence of the employee, that the documents are original and valid.
  3. Copy and keep the documents securely and record the date of the check and date for follow up checks.

To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.

The Act also introduces increased scrutiny and tougher potential sanctions for employers:

  • The maximum custodial sentence on indictment has been increased from 2 to 5 years
  • A maximum financial penalty of £20,000
  • A visa levy (immigration skills charge) on employers that use foreign labour.
  • A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
  • A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.

While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

Should Women be Made to Wear High Heels at Work?

Dress codes are often used in the workplace and there are many reasons why an employer may have such a code.  For example in some firms employees may be required to adhere to some form of corporate wear to communicate a certain image. Or indeed a code may exist for purely health and safety reasons with perhaps health care workers not being allowed to wear jewellery around patients or certain clothing being prohibited in factories where staff are operating machinery.

A recent case, however, has highlighted potential issues with dress code policies. A 27 year old woman working for a City firm in London was sent home for apparently refusing to wear high heels. Nicola Thorp arrived at an accountancy firm wearing flat shoes but was told she must change out of her flat shoes to wear shoes with a 2-4 inch heel. She refused, complaining that male colleagues were not required to wear high heeled shoes and she was sent home without pay. Her employers defended their dress code.

There is no specific law on dress codes at work and Ms Thorp, feeling so strongly about the position she found herself in, set up a Petition to the Government, demanding “women have the option to wear flat shoes at work if they wish” and claiming “Current formal work dress codes are out-dated and sexist.” At the moment the Petition has picked up more than 20,000 signatures meaning the Government must give a comment. If it gets more than 100,000 signatures there is a possibility that MPs could debate the issue in Parliament.

The Equality Act 2010 prohibits discrimination on the grounds of a protected characteristic, which include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

To help employers ACAS has issued the following guidelines:

  • Employers must avoid unlawful discrimination in any dress code policy.
  • Employers may have health and safety reasons for having certain standards.
  • Dress codes must apply to men and women equally, although they may have different requirements.
  • Reasonable adjustments must be made for disabled people when dress codes are in place.

As ACAS has further stated “a dress code should always be related to the job and be reasonable in nature.”

So did Ms Thorp suffer discrimination? UK employers can dismiss staff who fail to live up to “reasonable dress code demands” but according to Frances O’Grady, General Secretary of the TUC a dress code including high heels “reeks of sexism.” “High heels should be a choice, not a requirement.”

There are of course also health concerns. Tony Redmond a biomechanics expert at Leeds University  warned that “ From the point of view of the foot, high heels are a disaster.”  He alerts us to the fact that wearing high heels may cause some forms of arthritis, problems with knee joints and put people with weak lower backs at risk of slipped vertebrae. Emma Supple from the College of Podiatry has advised employers not to make women wear high heels at work because they “cause bunions, back problems, ankle sprains and tight calves.” As she says “All companies should be mindful of both the comfort as well as the smartness of their employees. These are not incompatible.”

In this case no claim has been put to an Employment Tribunal and the firm at the centre of the row has said it has now changed its policy allowing women to wear flat shoes depending on their preference. In a statement,Simon Pratt the Managing Director said “We are totally committed to being an inclusive and equal opportunities employer, actively embracing diversity and inclusion within our policies and procedures.”

But what would happen if a similar case were to be brought before a Tribunal? The employer would have to succeed on two points- that there was an objective reason for women to wear high heels, such as better job performance and they would have to justify why women had to wear high heels and why there was no similar requirement for men. I think this would be very difficult to prove.

If you have an employment law query Hugh Grant our employment law specialist is here to help. Please contact him on 0141-552-3422 or by email hjg@mitchells-roberton.co.uk