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Guest article is by John Cooke, chief executive of a trade association in the telecoms sector.

These are some thoughts about what leaders and managers should do to cope in the midst of major restructuring exercises, especially those involving redundancies. It came about from a talk I gave to a group whose members were about to start some major restructuring programmes, and had asked me for my ‘top tips’ on surviving restructuring. This certainly isn’t a definitive or comprehensive guide to the subject, but I hope that it might be of some use to anyone facing a restructuring exercise, especially if you haven’t been through it before.

It is based on personal experience and observation of three major mergers, of several other major restructurings in between times, and of leading the stakeholder communications around the closure of a variety of industrial and commercial facilities. The merger experience covers once as part of the team doing the taking over, once in a ‘merger of equals’, and once in a firm being taken over: I’ve done some restructuring, and I’ve also been restructured.

Here are seven things to think about during restructuring. They are:

• Look after yourself.
• Remember your personal brand.
• Don’t get mad. Don’t get even. Think instead what you can learn.
• Be true to yourself.
• Don’t spread yourself too thinly.
• The Western Front and Eric Cantona
• Look after your people.

Why are there seven steps? That’s simply because that’s how I’ve chosen to arrange these observations. I could have made it five, or twelve, or seventeen, but opted for seven because lots of lists come in sevens, like dwarves, wonders of the world, samurai, or gunslingers led by Yul Brynner.

They are in no particular order, with two exceptions. The advice to look after yourself is deliberately first, because if you don’t do this first, you may not be in a fit state to do the other things. The advice to look after your people is deliberately last, not because it is of least importance, but because you’ll be much better at looking after your people if you’ve thought about all the other things first.

1. LOOK AFTER YOURSELF

If your organization is restructuring, and you might up with a less enjoyable job or no job at all, it’s important that you look after yourself. This is first on the list because if you don’t do it, you may not be in a fit state to do the other things, and because managers in a crisis often do forget to look after themselves.

If you don’t have any people to lead, it’s entirely reasonable to look after yourself, because looking after you may well not be a priority for anyone else, including HR or your manager. But if you do have people to lead, and are trying to be fair to them and to maintain their morale, it’s very important that you look after yourself, too. That isn’t being selfish, either. Rather, it’s because as a leader, you have a duty of care to those whom you lead. How can you fulfil that duty of care if you yourself are stressed-out and demoralized, and operating below par?

Think of it like the oxygen masks on a plane. You are told to put yours on first before helping others. If you are sitting next to a loved one, that may sound selfish. But if you’ve passed out, you won’t be able to help them.

Part of looking after yourself is remembering not to beat yourself up if you have to break bad news to others, or thinking that if something has gone wrong you must be to blame. Hand-loom weavers didn’t lose their jobs in the Industrial Revolution because they were bad weavers, but because Mr Hardwood had invented the steam-powered ‘Ravelling Nancy’ or whatever. Most of the crew of the Titanic had nothing to do with it hitting the iceberg. Redundant video or cassette tape salesmen aren’t redundant because they were bad salesmen, but because we moved to DVDs, CDs and downloads. Stuff happens, and in most cases, it’s almost certainly not your fault, so don’t go thinking that it is. You are probably just someone trying to do his or her best to cope with the fallout. This advice does not apply, of course, if you are the general who thought it would be a good idea for the Light Brigade to charge into the Valley of Death, but it does apply to most of the people most of the time.

2. REMEMBER YOUR PERSONAL BRAND

In managing one’s career, a good bit of advice is to think about your own personal brand – how you want others to perceive you. . Like any other brand, its reputation must be protected. And that seems to me to be as true during difficult times as it is in good times, though few of us remember to do it.

Many people think of a brand just in terms of a product, or a service, but it also covers people. That may be true for the likes of a politician or sports personality, you may think, but not for most people. You may think that, but you’d be wrong. Everybody is perceived by others in a certain way, and has certain attributes attributed to them, whether they like it or not. Think of your colleagues, and you will almost always think of an attribute that they have: Ben, in finance, may be known for his passionate support of Partick Thistle; Julie in HR for wearing short skirts; Bill, in marketing for being determined to get the job done; and Sandra, in sales, for being creative. Whether or not you have your own marketing campaign and registered trademark, you have a brand, i.e. a quality or qualities that people think of when your name comes up. And it’s something you should probably work on, rather than just leaving to chance. You wouldn’t do that in a job interview, and nor should you the rest of the time. And in a crisis, your brand is particularly important.

In a crisis, you will be watched by your peers, by those above and below you in the management chain, and, possibly, by potential alternative employers. How do you want them to think of you? Do you want them to think of you as someone unable to cope in a crisis, or as someone keeping his or her head in difficult circumstances? Do you want to be pitied, or respected? That last is, of course, a rhetorical question.

Make sure that they all see the image that you want to convey – the swan gliding serenely over the surface of the water, not the angst-ridden, mad paddling below the surface. Remember, most others around you, including those who appear calm in a crisis, will also be racked by internal doubt: it’s just that they don’t show it. Either that or they are from the planet Vulcan.

Your brand is particularly important when you are leading people through a crisis. Think of it as if you are the captain of a ship in a bad storm, and your team is the crew. The captain might say, “Look, this is a really serious situation, but our best chance is if everyone does their jobs as well as they can”. Or he might say, “We are all doomed”. One of these approaches is likely to produce a better outcome for all concerned than the other.

3. DON’T GET MAD, AND DON’T TRY TO GET EVEN; THINK INSTEAD WHAT YOU CAN LEARN

Restructuring very often involves a breaking of what we see as the unwritten moral contract between an organisation and its employees. That contract is that if you work hard and conscientiously, and deliver what you are reasonably asked to do, the organisation will do right by you in return. Sometimes, the organisation can’t deliver its part of the bargain. That’s not necessarily because management is stupid, or doesn’t care, or is trying to exploit you: sometimes, an organisation and its managers are simply overtaken by events.

Whatever the causes of the breakdown, two possible reactions to it are: first, a sense that it is unfair; and, second, a desire to lash out in anger at the party that has ‘betrayed your trust’. These are perfectly normal, understandable human reactions. The problem with them is that you can expend a vast amount of time and, more importantly, emotional energy thinking about the injustice that’s been done to you and working out how to get revenge. But that doesn’t really get you very far in improving your situation. It’s easier said than done, but when you feel let down and angry, don’t get mad, don’t waste time trying to work out how to get even, just accept the situation you are in, and try to work out how to make the best of it.

The main thing is this. Imagine yourself in a job interview, six months or a year from now. The interviewer asks something like “So, you were in the midst of this awful restructuring. What did you learn from it?” And you answer “Well, I learnt X, Y, and Z. And I can now apply that learning in this role we are discussing now”. So, despite all the crap going on around you, ask yourself at the end of each day or each week what you have learned and how that enhances your CV.

I said earlier that bad stuff happens, and in most cases, it’s almost certainly not your fault. While that’s true, it doesn’t mean that you have no responsibility for anything, or that you won’t make mistakes. You do, and you will. Just remember to learn from them – a lesson that applies at all times, not just in restructuring. “Mistakes”, said James Joyce, “are the portals of discovery”. Or, as Plutarch put it “to make no mistakes is not in the power of man; but from their errors and mistakes, the wise and the good learn wisdom for the future”. At least that was the gist of it, as he was talking Ancient Greek, obviously.

4. BE TRUE TO YOURSELF

During difficult restructuring, simply surviving may well represent success, and it has a lot to be said for it. However as Jimmy Reid said in his inaugural address as Rector of Glasgow University, in 1972:

“Reject the insidious pressures in society that would blunt your critical faculties to all that is happening around you, that would caution silence in the face of injustice lest you jeopardise your chances of promotion and self-advancement. This is how it starts, and before you know where you are, you’re a fully paid-up member of the rat-pack. The price is too high. It entails the loss of your dignity and human spirit. Or as Christ put it, “What doth it profit a man if he gain the whole world and suffer the loss of his soul?”

Few of us are lucky enough to have our ideal job, and life is often about some compromises at the best of times. So we should be particularly willing to compromise in a restructuring. Compromise may be essential if you are to be able to feed and clothe your loved ones, or indeed yourself. But whatever you do, don’t compromise your core principles or core values. If you do, you’ll end up disliking yourself, and that will inevitably turn into a downward spiral of low self-esteem, low achievement, failure and despair. Just don’t go down that route. Remember Jimmy Reid’s advice.

5. DON’T STRETCH YOURSELF TOO THINLY

If you are the manager working out how to do stuff with fewer people or less money, be realistic about what you can achieve.

There’s always a bit of waste in any organisation, so you should look for maximum efficiency, but ‘efficiency savings’, much beloved of all politicians everywhere, will only get you so far. You need to avoid overstretch. It’s much better to do a few important things and do them well, rather than trying to do too much and doing it all badly. With the former you’ll please some of the people, and the rest will understand if you explain it to them. If they don’t, that’s tough. And you will have by then agreed with your line manager what’s most important.

If something is a statutory obligation, you’ve no choice but to do it. For everything else, you do have a choice. So ask yourself, “is this activity critical to our success, and would the sky fall in if we stopped doing it?” If yes, keep doing it. If no, it’s a candidate for the chop.

In doing this exercise, be ruthless in considering what’s critical. ‘Critical’ means ‘critical’. It doesn’t mean ‘handy’, or ‘useful’, or ‘desirable’ or something that must be done ‘because we’ve always done it that way’ or because the Head of Paperclips requires a weekly report on it.

You will win no friends and do nothing to further your career if you meekly accept being told to do the impossible, and then fail to deliver the required miracle.

6. THE WESTERN FRONT AND ERIC CANTONA

In case the title of this bit isn’t self-explanatory, let me elaborate. There are two parts to it. The first is to remember that there’s always someone worse off than you. The second is to remember Eric Cantona, and I’ll get to him in a minute.

One of the most excruciatingly irritating things to be told when you are in a painful or stressful or upsetting situation is that someone else is experiencing something similar or worse. When I’ve broken a finger, or have had toothache, I haven’t felt less pain if someone told me that it’s not nearly as bad as childbirth or whatever. One reason someone else telling you this sort of thing is so annoying is that you might recognize more than a grain of truth in the argument. And if you tell yourself that someone is worse off than you are, that can help.

I’ll tell you what has sometimes worked for me.

That has been to remember that, though I may, at times, have been unhappy with aspects of my job, or my then manager, or facing potential redundancy, if I’d been born in a different generation, it could have been worse: I might have been in a hole in the ground in northern France, covered in mud, and being shelled. That sometimes works for me, because it happened to my grandfather when he was a young man serving in the Gordon Highlanders, and I have fond memories of him. Not that he ever really talked about it, but I do have a photo of him on my mantelpiece. Find an image that resonates with you, assuming that you don’t also remember my granddad. It might be something that you’ve read about or seen on TV: the image of a starving child in the Horn of Africa does rather put a different perspective on a slightly lower than expected pay rise or missed promotion.

Now let me turn to Eric Cantona.

Let’s suppose that you are facing redundancy. It happens. Redundancy and unemployment are bad. They are scary, demoralising, can lower your self-esteem and are bad for your physical and mental health. So I don’t want to play down the impact. However, lots of people who are made redundant do end up with better jobs and with happier more fulfilled lives. It is not the end of the world. It can be, especially if you let it, but it doesn’t have to be. If you do get made redundant, remember Eric.

In 1992, Eric was playing for Leeds. His then manager, Howard Wilkinson sold him to Manchester United. This wasn’t because Manchester was offering a king’s ransom of a transfer fee that Leeds just couldn’t refuse. On the contrary, they paid about £1.2million – chickenfeed in football transfer terms. It was simply that Wilkinson and Leeds thought Cantona surplus to requirements. Or, put another way, ‘redundant’. Wilkinson was not a bad manager – he guided Leeds to the English championship in 1992. If you know anything about football, the rest, as they say, is history.

However, if you don’t know football, I will explain. Man. United had spent a quarter of a century, without Eric Cantona, failing to become English champions. With Cantona as star player, they won four titles in five years, including two League and FA Cup Doubles. It wasn’t all down to Eric, of course. But Man. United is one of the world’s most famous and successful clubs, with a host of star players in its history. Among United fans, Cantona is an idol, a demigod, a legend amongst legends. Not bad for someone deemed ‘surplus to requirements’.

So if you do get made redundant, don’t automatically think that you are a worthless failure. You are simply surplus to requirements in somebody’s subjective opinion – however objective they say they’ve been in reaching that decision. Remember Eric Cantona!

7. LOOK AFTER YOUR PEOPLE

Big restructuring programmes involving, or even potentially involving, redundancies are bad for morale! They can lead to a sense of alienation and disaffection. People worry when there’s uncertainty. As a leader or manager, one of your jobs is to manage this. How you do so depends on the situation, but some generic tips are:

Talk to your people more than usual. Listen to them even more so. Don’t assume what they are thinking or feeling. Don’t think “if I were so and so, I’d want X to happen/the logical course would be Y”. For one thing, logic often flies out of the window at times of stress, but more fundamentally, you are not so and so, and you don’t know what’s in their mind. If in doubt, ask them.

Keep asking them, because their view might change. I recall one colleague who, in a particular restructuring, wanted redundancy. They didn’t want to work in the new set up, and they wanted the payoff. But when the letter arrived, they felt ‘rejected’ and needed support.

Pay particular attention to younger, less experienced staff members. You might think they’ve less to worry about, e.g. no kids, no mortgage, etc, but they can be hit hard by the threat of redundancy, when older hands, who’ve seen it before, may be much more relaxed.

If someone is appearing to be coping well, don’t take that at face value. They may be coping well, in which case, that’s fine. But check that they aren’t in denial. It can happen, and if it does, you’ll need to work with the person to get them to address the reality of the situation.

There isn’t a golden rule about how different people will react, so treat them all as individuals. It may be that the one you think will cope best won’t, and the one you think might cope worst will be fine.

Try to be as reassuring and empathetic as possible, but don’t patronize or give them some old flannel that you don’t believe and they won’t believe either. Subject to HR constraints (ask HR for guidance on this) be as open and honest as possible. Don’t hide bad news; just try to break it gently, and do your best to help people find a way through.

Where redundancies are involved, don’t assume that those keeping their jobs are fine. Seeing friends and colleagues getting the chop can lead to ‘survivor guilt’.

Where people are being made redundant, you still need to look after them. It’s morally the right thing to do. And it could happen to you, one day, so do unto others etc. Also, remember that those left behind will see how those being made redundant are treated: their view of you and of the organisation will be affected accordingly.

Give people something positive to think about and to work towards. Give them something to learn. (See ‘Don’t get mad’, etc)

If you are in a position of authority, don’t encourage mutiny. People will grumble. That’s natural. Accept it. Letting them let off steam may help morale. But be careful to avoid being seen to agree too much with criticism of senior management, even if you think your people have a point. Think of Tom Hanks in ‘Saving Private Ryan’. In a crisis, people will cope better if they think someone in authority has at least some notion of how to fix it. If you agree too readily that the high heid yins in your organisation are a bunch of numpties who couldn’t run a whelk stall, this risks undermining morale even further. Caveats to this advice are that you should not blindly defend things that are immoral (see the Jimmy Reid quotation in ‘Be true to yourself’), or just plain daft, and also remember your brand.

John Cooke

John Cooke is chief executive of a trade association in the telecoms sector. His background is in public affairs and policy, and his career has included senior roles at HBOS, in financial services, and GlaxoSmithKline, in pharmaceuticals. A former Chair of the Scottish Government’s Financial Services Implementation Group(FiSIG) John remains passionate about creating a more successful Scotland, where sustainable growth provides opportunities for all her people to flourish. He is a regular commentator, in a personal capacity, on a range of Scottish policy and economic issues, and on other business matters. One of the Diaspora who has returned, he now lives in Edinburgh.

This is the first in a series of articles by Paul Thompson of PT Legal.  Paul specialises in mental health and incapacity matters.

Patient Rights (Scotland) Act 2011

My first article focuses on the new Patient Rights Act and the proposed secondary legislation which is currently under consultation.

Background

The aim of this Act is to improve the experience of using the NHS in Scotland and getting patients more involved in their health care.  The Patient Rights (Scotland) Act received Royal assent on 31 March 2011 and the main statutory provisions come into force on 1 April 2012 [1].

New Rights for Patients

The Act gives all patients the right that the health care they receive from the NHS in Scotland should:

-          take into account the patient’s needs

-          consider what health care would be most beneficial to the patient

-          consider each individual patient’s circumstances and preferences

-          encourage patient participation in health care decisions

-          provide the patient with information and support allowing them to participate

Health Care Principles

In addition to the above rights patients will now benefit from “Health Care Principles” contained in the Schedule to the new Act. The following principles must be applied by all providers of NHS health care in Scotland: Patient Focus; Quality Care and Treatment; Patient Participation; Communication; Patient Feedback; Waste of Resources. A more detailed look at these principles will be the subject of a future article in this series.

Treatment Time Guarantee

Health Boards in Scotland must ensure that certain groups of patients receive medical treatment within 12 weeks from the date the treatment has been agreed.  Secondary legislation is currently under consultation and will detail which groups of patients will be covered by this new guaranteed treatment time. The draft legislation applies to patients due to receive planned or elective treatment on an inpatient or day case basis, however, it excludes specific treatments such as assisted reproduction and transplants which are dependent on the availability of organs.

Patient Advice and Support Service

The Act creates a new Patient Advice and Support Service to help patient’s understand and exercise their rights under the Act. This new support service replaces the current Independent Advice and Support Service provided to patients by the Citizens Advice Bureau.

Hepatitis C compensation payments

The Act extends the current compensation scheme contained under Section 28 of the Smoking, Health and Social Care (Scotland) Act 2005 which is currently applicable to those who acquired hepatitis C as a result of NHS treatment and who did not die before 29 August 2003.

The Patient Rights Act amends the 2005 Act to allow for compensation payments to be made to dependents of patients who acquired hepatitis C as a result of their NHS treatment but died before the cut off date of 29 August 2003.

Protections and Limitations

If you have been reading this article and thinking, as I did, that these guaranteed patients rights sound too good to be true, then read on. Section 20(3) of the Act will be of particular interest to lawyers as it contains a “get out clause” for NHS Health Boards and provides:

(3)  Nothing in this Act gives rise to—

(a) any liability to pay damages,

(b) any right of action for specific implement,

(c) any right of action for specific performance of a statutory duty,

(d) any right of action for interdict,

(e) any right of action for suspension

Imagine the situation where a doctor has agreed that a patient requires life saving treatment. The Act now guarantees that the patient will receive treatment within 12 weeks. If the patient does not receive the treatment within this guaranteed time scale (for example due to lack of funding or bed availability) the patient is then left with no legal remedy for the breach of their rights.

On closer examination this Act appears to provide patients with new rights and guarantees whilst at the same time deliberately rendering them unenforceable. In direct contrast to this odd state of affairs we have the Mental Health (Care and Treatment) (Scotland) Act 2003.  The 2003 Act contains “Guiding Principles” which guarantee a patient rights when receiving compulsory medical care and treatment and these rights are legally enforceable. These principles must be adhered to and the act provides specific legal remedies to ensure they are complied with[2].

In light of the lack of enforceability of the rights and guarantees contained in the this Act the following point still needs to be debated: could the money spent on producing this Act and subordinate legislation have been better invested in providing patients with actual medical care and treatment.

It could be argued that these new rights and guarantees could simply have been incorporated into NHS Health Board’s policies as the limitations and lack of enforceability of these rights under the Act add no greater legal protection to the existing rights of patients.

A full copy of the Patient Rights (Scotland) Act 2011 can be found at: http://www.legislation.gov.uk/asp/2011/5/contents/enacted

Paul Thompson
Principal Solicitor

      Tel: 0800 118 5240
      Fax: 01475 600 377
      Mobile: 07950 948837
      Email: paul.thompson@ptlegal.co.uk
      Web: www.ptlegal.co.uk

Inner House case concerning a clerical assistant at Kirkriggs School in Glasgow who injured herself when she fell from a toilet bowl whilst trying to open a window.

An extra division of the Inner House allowed a reclaiming motion and Ms Wallace was granted damages of £31,800 reduced by 50% in respect of contributory negligence.

The decision turned on the Workplace (Health, Safety and Welfare) Regulations 1992 and in particular on Regulation 15(1) which says:

“No window, skylight or ventilator which is capable of being opened shall be likely to be opened, closed or adjusted in the manner which exposes any person performing such operation to a risk to his health or safety.”

The extra division of the Inner House found that regulation 15 (1) required the Council to address the question of how the window might be opened, closed or adjusted. If the Council had carried out a proper risk assessment in relation to the opening of the window they would have discovered the risk of injury to persons of Ms Wallace’s height (5’1”) if no window pole was provided in the toilets or, at least, made very readily accessible at all times nearby.

Lord Tyre had suggested that Ms Wallace should simply have refrained[1] from seeking to open the window.  However, in the Inner House, it was considered that this was to ignore the significance of the duty on the Council[2]  with regard to the ventilation of areas such as the toilet. It appeared that the only source of ventilation of the cubicle was to be obtained by opening the window.  The Court found that:

“A proper risk assessment would have pointed out the risk of someone, like [Ms Wallace], when no window pole was available, seeking to open the window for ventilation purposes either by standing and stretching, which itself could have caused injury, or, alternatively, attempting to reach the window by standing on what appears to have been the sole means of doing so, namely the toilet bowl, which itself would have been dangerous.

The full judgement is available from Scottish Courts here.

It was reported in The Lancet last week that an international group of researchers are recommending that “junk food” should be taxed.

Watching a piece on the news last night on this issue it seemed that this proposal will follow what I see as the “usual pattern”.  Recent examples include: “transient guest” or bed tax, minimum price for alcohol, plastic bag levy, European transaction tax, bank levy, carbon tax and non-doms charge.

An organisation or government suggests a tax or charge.  The press report it.  A debate begins on whether the tax is to change behaviour or raise funds.  Often the proposer suggesting the tax is not sure or fails to make clear that the answer is both.  That often provides its opponents an easy line of attack.  In most cases no thought has been given to what rate the tax will be charged at or how and by whom it will be collected or even how much is likely to be raised.  Again if the proposers have not thought of this its opponents have an easy line of attack.

In some cases, such as when environmental taxes were being suggested, a cynical person might have concluded that the “change behaviour” argument was used by some backers when in fact they really just wanted the revenue.

Then the appropriate trade body argues that taxation is not the answer and some form of voluntary agreement will do just as well.  A trade body is used as individual companies do not want to be seen directly arguing about the matter in question.  If the proposal is by one government and affects a second government then a similar argument is likely to be used.

Then politics takes over!

A report from the BBC on taxing “junk food” can be found here and The Lancet here.

More debate on the top rate of income tax.  John Mason, former MP and now SNP MSP, suggested that the top rate of income tax is increased when the power to vary income tax rates is passed to the Scottish Parliament.  This proposal was given short shrift by the First Minister.   Eric Pickles, UK Community Secretary, wants to slash the top rate of income tax and thinks that imposing a “mansion tax” would be a mistake.

The UK Government’s deal with the Swiss banks got a mixed reaction.  The Swiss government has agreed to tax money held by UK taxpayers in Swiss bank accounts for the first time, while still hiding their identity.  The mixed reaction is because the amount of tax likely to be paid will be just a fraction of what is actually owed.

The campaign to reduce the rate of VAT on domestic property repairs and improvements has continued.  One point that as yet has not received much coverage is the fact that the Isle of Man has already negotiated such a reduced rate with HM Treasury.  More on this can be found here.

The fact that the French and German governments are pressing for a unified rate of corporation tax for the Euro zone countries has received a fair bit of coverage particularly in Ireland.  I suspect the fact that the same governments are also again, and with a fair bit of urgency, pressing for a European “financial transaction tax” will receive increased coverage.  This is also known as the “tobin tax”.

There has been an increasing number of stories on the action HMRC is taking on VAT and other forms of tax fraud.  This makes sense given the cutting of HMRC’s budget.

Outer House case considering an agricultural lease of Rockside Farm at Bruichladdich on Islay.  The tenants were Rockside Farming Company (of which Mr and Mrs French were directors). The farm had been owned by one owner but, following the grant of the lease, part of the farm (776.5ha) was sold to Crewpace.  The remaining part (14.5ha) was sold to Mr and Mrs French with the result that both Crewpace and Mr and Mrs French became landlords under a single lease.

Mr and Mrs French let part of the land to which they had title to a distillery and sold two further parts.  Crewpace argued that Mr and Mrs French should have sought their consent before doing so. They therefore sought declarator that the Frenchs had unlawfully interfered with their interest as “joint landlords”, payment of recompense (for unjustified enrichment) and an interdict preventing Mr and Mrs French from resuming or selling any further parts of the leased subjects without their consent.

Essentially Crewpace’s argument was that their interest in the lease was “common property” and held by them and Mr and Mrs French as “joint landlords”. As such Crewpace claimed to have an interest in the whole subjects similar to that of a pro indiviso owner with regard to management, control and disposal of the land.

Temporary Judge Morag Wise QC preferred Mr and Mrs French’s arguments to the effect that there is no landlord’s interest separate from the right of ownership finding that a landlord’s right is inextricably linked with its title and dismissed the action.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for judicial review of a decision by Highland Council to grant planning permission for a development of 64 houses at Resaurie near Inverness.

The petitioners argued that the Council had failed to adopt the correct approach to assessing the risk of flooding arising from the development. In particular the petitioners argued that the Council had not adopted a precautionary approach to flood risk as they should have done in terms of the planning policy. They also argued that the Council had failed to understand and take proper account of objections which they had raised in a letter to the Council.

Lord Pentland refused the petition.  The petitioner’s case referred to a change in the wording of the planning policy. SPP7[1] had obliged the Council to “err on the side of caution where flood risk is an issue” whereas the new Scottish Planning Policy[2] (SPP) which replaced it stated instead that developers and planning authorities should take a “precautionary approach” in taking decisions where flood risk is an issue. This change, the petitioners argued, amounted to a new material consideration which the Council had to consider before granting the permission.  However, Lord Pentland found that the change was no more than “textual or cosmetic”.  This meant there was no material change in policy and no new material consideration for the Council to consider before deciding the matter.

Lord Pentland was also not persuaded that the Council had failed to give adequate consideration to the objections raised by the petitioners in their letter taking the view that all of the objections had been adequately summarised and addressed in the planning report which was presented to the planning officials.

The full judgement is available from Scottish Courts here.

(NB: see appeal to the Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

In my fourth article in this series I am looking at the UK Government’s decision to withhold Attendance Allowance funding when the then Scottish Executive decided to introduce its policy of Free Personal and Nursing Care (FPNC).

First thing’s first.  What is Attendance Allowance?.  Attendance Allowance is a tax-free benefit.  You may get Attendance Allowance if you’re aged 65 or over and need help with personal care because you’re physically or mentally disabled.

A reminder of what the 2007 Sutherland review of FPNC recommended on this issue:

“Address imbalance in funding streams.  The UK Government should not have withdrawn the Attendance Allowance funding in respect of self-funding clients in care homes, currently amounting to £30 million a year.  That funding should be reinstated in the short-term while longer-term work to re-assess funding streams takes place.”

When researching this issue I also found an interesting article by the economists, Jim and Margaret Cuthbert.  The main point of this article is that the Department for Work and Pensions (DWP) and HM Treasury breached their own rules in coming to this decision.  The full article can be found here.

The decision to withhold Attendance Allowance funding appears to have more to do with not understanding that devolution means the power and ability to do things differently.  When you consider the reaction to other proposals such as a local income tax or the devolving of corporation tax powers a pattern appears to be forming.   It is also worth noting that institutions such as DWP and HM Treasury are meant to act for the whole of the UK.

The facts
Inner House case considering a property dispute over Broadford Church and Manse on Skye between two factions of the Free Church of Scotland.  A Feu Charter in 1869 set out the terms of the trust in favour of Trustees for the “Congregation of the Body of Christians called the Free Church of Scotland in the Parish of Strath, Skye”.

In 2000 a split occurred when a substantial minority of the Church (the break aways) separated themselves from the rest of the Church (the majority) taking themselves outside the system of church government (although there was no difference between the factions on religious doctrine). The congregation at Broadford was divided and the majority brought an action for declarator that (amongst other things) the church and manse belonged to the majority rather than the break aways. They also sought a conclusion preventing the break aways from trespassing on and carrying out renovations to the manse

The decision
An extra division of the Inner House found in favour of the majority.  It was clear from the trust deed that membership of and participation in the institutional structures of the Free Church was an essential feature of the trust. Whilst the break aways claimed that, following the division in 2000, they continued to adhere to the law and practice of the Free Church, they did not claim to maintain the continuity of the Church government system nor did they seek to argue that they remained part of the system of church courts. Participation in and membership of the system of church courts was the decisive principle on which the Broadford property was held on trust and the arguments put forward by the break aways were consistent only with the view that they had withdrawn from the system of church courts existing prior to the division.

Some general principles
After reviewing the authorities, Lord Drummond Young highlighted a number of principles and factors which would be taken into account when considering property disputes within churches. He noted that property rights will always be dependent on the circumstances of the individual case and in particular the terms of the trust agreement under which the property is held but also considered the following:

Majority rule
The principle of majority rule (i.e. that property should simply go to the majority of the money contributors on any division) was prevalent in older decisions but was rejected in the judgement of Lord Eldon in the House of Lords in Craigdaillie v Aikman (1813). Lord Drummond Young also took the view majority rule is unsatisfactory:

 “In the first place, it is not clear who the majority are: are they the majority of the congregation, or the majority of the members (as against adherents) among that congregation, or the majority of the elders, or a majority of the money contributors? If the last of these, how are the contributions of the various contributors to be assessed? In the second place, and more importantly, the principle of majority rule would permit a bare majority of the congregation to effect a fundamental change in the doctrines taught in the church or the religious practices followed there.”

The distinction between church property and congregational property
There is an important distinction to be made between property which is to be held for the general governing body or ecclesiastical judiciary of the church in question (especially from the funds of parties other than the parties in the congregation) and property which is to be held in trust for a congregation and its members. Church property must be used for the benefit of those whom the Church acknowledge as part of the church. Congregational property is the property of the congregation alone and the governing body has no interest or power over the property.

Adherence to fundamental doctrine
The court must scrupulously respect the religious opinions of the parties involved in the litigation especially the differences of opinion which the parties consider important. Those who adhere to the principles on which the congregation was united will not forfeit the property merely because a majority has decided otherwise. In the event of a division, the property held for a congregation will go to the part of the congregation which adheres to the fundamental principles of the church as identified in the churches original documents.  Those fundamental principles:

“may take a number of forms. Particular doctrines may be important, but so too may be a system of church government, and so may adherence to specific structures of church government.”

Unsurprisingly, however, it seems that the most important principle is that the trust deed rules.

The full judgement is available from Scottish Courts here

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

The Scottish Government has launched a consultation on the proposed secondary legislation to support implementation of the Patient Rights (Scotland) Act 2011 and in particular the regulations and directions relating to the treatment time guarantee, patient feedback, comments, concerns and complaints and the Health Care Principles to be upheld by relevant NHS bodies and service providers.

The consultation can be found here.