The government has missed the mark in tackling fraud

Rather than an economic crime levy, an entire structural change is needed

By Rachel Adamson | The Times

“There is no greater fraud than a promise not kept.”

So runs the famous proverb — a favourite of Stephen Harper, the former Canadian prime minister. And such words seem doubly apposite when it comes to the UK government’s latest efforts to tackle fraud.

Faced with a record growth in fraud, to the point where 12 people become fresh victims every half an hour, ministers have unveiled an economic crime levy with a view to funding government action to tackle money laundering and ambitious counter-fraud measures.

Unfortunately, no matter the promise to get tough on fraud, these measures fall short. Rather than turn the tide, the government is arguably fiddling whilst pockets are picked.

Put simply, the government’s attention and energy is misplaced. Funding should not only be going towards backend enforcement, typified by the plans to increase the number of accredited financial investigators. Resources are needed at the coal face and money would be better spent on the investigation and prosecution of fraud and money laundering itself.

What resource-starved agencies — such as the Serious Fraud Office (SFO) or National Crime Agency (NCA) — urgently need is not just more money, but structural change. Here, the Trading Standards Authority, which empowers local agencies to support their investigations whilst providing the option to escalate to the national body, provides a blueprint. Such a model would allow the SFO to continue to deal with the most serious cases, whilst ensuring other reports do not fall through the cracks.

But even here, these structural changes will mean nothing unless the NCA redefines its stance on what level of transaction is worth pursuing. This change is essential.

All too often, the suspicious activity reports that regulated businesses are obliged to complete are not considered of sufficient concern. This leaves practitioners, who have already gone through an incredibly onerous reportage process, in the lurch.

The NCA makes it extremely difficult to obtain permission to continue with a suspicious transaction they have rejected for investigation, and the referrer is left with at least a seven-day wait where they cannot inform the client of the reason for delay.

We need action on fraud, that much is clear. And though money will certainly grease the wheels of justice, it is also clear we need to reform the suspicious activity report regime alongside the creation of a regional, properly resourced SFO.

The Home Office is developing a fraud action plan, but we cannot afford a protracted wait for action. Otherwise, the promise to tackle fraud may, indeed, be the greatest fraud of all.

Rachel Adamson is the head of fraud at Adkirk Law, a firm in Preston

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Last Day Stamp Duty Holiday

Our manic rush to the end of the Stamp Duty Holiday

Thursday 30th September was a race against the clock. With businesses forced to complete as many deals as possible before end of the Stamp Duty Holiday, conveyancers up and down the country were under enormous pressure. Ahead of the deadline, the team at Adkirk Law went above and beyond expectations to achieve an on-the-day re-mortgage application and two completions, in the process saving our clients thousands of pounds!

Whilst our team worked over the weekends leading up to the deadline to ensure that transactions were completed ahead of the 30th, there are three stories from the deadline day that stand out from the crowd.

On the day reissued mortgage application

On the morning of the 30th, our team had a call with a lender to chase a long-awaited update on a matter they had referred. The lender said it was their intention to reissue the mortgage offer. We requested this was done immediately and as soon as this was received at 2pm, we pushed for the funds request to be accepted by the lender and ensured that no stone was left unturned before receiving the mortgage advance at 5.20pm and completing the deal for the client at 5:40pm.

What is normally a 3-5 day process, was completed in just 7 hours.

Last minute completion

On the 30th we received a call around 10am to say that the sellers wanted to complete that day. The date had not been agreed for completion and we had only just received replies to enquiries. We quickly assessed the situation and realised that all was in order and it could possibly be achieved. We swiftly requested funds from the lender and the balance from the client and proceeded to exchange and complete the matter at 3pm.

New-build purchase

On Sunday 26th September we got in touch with one of our clients to say that it may be possible to complete their new build property ahead of the deadline. Whilst a process such as this can sometimes take a week or so to set up, our team worked tirelessly over the next four days to get the matter successfully completed ahead of the deadline, saving the client the additional stamp duty in the process.

We are immensely proud of our teams’ exceptional efforts to complete numerous transactions during the 15-month holiday period.

If you’re looking for help to complete a property transaction, or require expertise to help with your re-mortgage or lease extension application, then please do contact us on 0330 111 9728 or by email newbusiness@lawyersinc.org

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Dr O M A Karim v General Medical Council in the Employment Tribunal

By Deepika Raino of Adkirk Law

Could this be a historic moment in the battle against racism?

In its conclusion the Employment Tribunal noted that BME doctors make up 29% of all UK doctors, employers make 42% of their complaints about BME doctors and UK graduated BME doctors are 50% more likely to receive a sanction or a warning than white doctors.

There has been much excitement at the recent success of Dr Karim, a consultant urologist, in his discrimination case against the General Medical Council “GMC”. He is the first doctor to have ever won a case of discrimination against the GMC following the landmark decision in the case of Michalak v GMC December 2017. Given the profession’s long-standing suspicions of racism within the higher echelons of the medical establishment (consider for example the cases of Dr Bawa Gaba and Dr Sellu), how does it come about that he is only the first?

Unfortunately, the answer appears to be down to technical legal problems!

The answer lies in technical legal problems. Until 2017 the GMC had always eliminated such claims as soon as they were launched by successfully arguing they were prohibited by statute. An obscure subsection of the Equality Act 2010 (and similar subsections in the preceding Race Relations Act 1976 and Sex Discrimination Act 1975) provides that if the matters in issue can be dealt with by way of a statutory appeal (for example, under the Medical Act) then the jurisdiction of the Employment Tribunal is ousted. Even if they could not, the GMC further argued that jurisdiction was also ousted if Judicial Review proceedings were available to the doctor (which they usually were).

It was not until the Supreme Court decision in 2017 in Michalak v GMC that this subsection was ultimately interpreted. The result was that a discrimination case in the Employment Tribunal “ET” against the GMC (and other professional regulators) finally became possible for doctors and other professionals. The Supreme Court held, that in this context Judicial Review was not “a proceeding in the nature of an appeal” and that Parliament had not intended to oust the ET’s jurisdiction in the way argued by the GMC.

The first person to take up this opportunity was a Dr Onwunde in 2018. The Medical Practitioners Tribunal’s “MPT” fitness to practise hearing made a determination of erasure from the GMC register, but he had made a successful statutory appeal to the High Court which quashed the most serious findings made by the MPT and sent the case back to the MPT to consider the findings which it upheld. Dr Onwunde then brought proceedings in the ET against the GMC. In summary, he alleged race discrimination due to certain breaches of procedure by the GMC during the course of its investigation of his fitness to practise. He did not claim that the MPT’s decision to erase him was made because of his race. His case was rejected. In summary, the ET found his claim was not well founded and he had made his claim out of time. The ET also considered that his allegation of discrimination and breaches of procedure could have been made on his statutory appeal to the High Court. It agreed with the GMC that only where appeals were not possible, arguments about procedural breaches could be brought before the ET.

Being cleared of fitness to practise allegations provided the route for Dr Karim’s success. 

In Dr Karim’s case though, there had been no finding of impaired fitness to practise even after a four-year investigation by the GMC. He had been investigated in parallel with a white colleague referred by their employer at the same time to the GMC, but his white colleague’s case was dropped from the case at an earlier stage. Dr Karim accordingly alleged discrimination in the investigation into him, compared with the investigation of his white colleague. The ET’s judgment suggests that the GMC did not raise a jurisdiction point in this case. Instead, the employment judge focused on the alleged discriminatory treatment and found that Dr Karim had indeed suffered unfavourable treatment due to his race in that there had been undue delay in progressing his case, in that the GMC appeared to have actively searched for material to support a case against him, and unlike the case against his white colleague, the case against Dr Karim was not dropped although they were highly comparable.

What conclusions could we draw from this case?

The GMC is appealing the Karim decision so any conclusions can only be provisional. But in the meantime, it seems that a doctor who has been cleared of misconduct is in a stronger position to be allowed to bring a case to the Employment Tribunal because there is no statutory appeal available to him.

Secondly, a doctor making a statutory appeal to the High Court from a decision in his case should consider whether discrimination should be raised in those proceedings, lest he is precluded from doing so later. What the High Court would do in such a case is another matter, since it is not usually concerned with these issues and has more limited powers to respond to them than the ET.

Thirdly, the kind of acts by the GMC which might amount to discrimination include unnecessary delay in investigating, making unwarranted enquiries to garner evidence against the doctor and making different decisions in otherwise comparable cases.

It might well be thought that there is lack of clarity about how a doctor (or indeed any professional person) who may have a legitimate claim against his or her regulator for discrimination, should actually make a claim. To incorporate it into an appeal to the High Court would appear less than satisfactory. Lord Kerr himself said in Michalak, “The rationale can only hold where the alternative route of appeal is capable of providing an equivalent means of redress.” It is at least debatable whether that is so.

Whether or not the GMC is successful in appealing the ET’s decision, this case certainly lays bare the issues faced by all professionals undergoing fitness to practise investigations; prolonged investigations, such as investigations undertaken in accordance with Maintaining High Professional Standards, significant delays in the professional Regulators’ investigations, and the often seen practice of looking for material to support the allegations against the professional (which is not unique to the GMC) and the linking of cases for the convenience of the Regulator’s investigation, all which negatively impact the Registrant’s career and reputation.

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Law firm offers package of services to NHS staff

By Linda Kirk of Adkirk Law

A leading regional law firm is offering its package of specialist services to NHS staff across Lancashire.
The services of Adkirk Law, including conveyancing and regulatory law, are offered in partnership to the 6,000 members eligible for the staff benefits scheme run through the NHS intranet across the county.

The move means key workers can benefit from discounted rates when moving house, re-mortgaging their property or facing leasehold issues.

In addition, Adkirk Law specialises in defending professionals through investigations and any enforcement proceedings in all regulatory and criminal issues affecting people as individuals or businesses. This includes regulatory action and fitness-to-practice issues going before the General Medical Council, Nursery and Midwifery Council or the Health and Care Professions Council.

Linda Kirk, director of conveyancing at Adkirk Law, said: “Our services are discounted to help NHS staff with all of our legal services and they will receive the same personal level of care that we extend to all of our clients.
“We want to make these services as accessible as possible for NHS employees to tap into when they need it. NHS workers are doing a fantastic job of looking after us all during the pandemic and hopefully we can offer them our support by handling their legal issues and making their lives easier.

“We think issues such as the changes in leasehold legislation and the stamp duty holiday which may be extended will be important to many NHS staff who are property owners and who we can help guide through the changes.”

The Government is reviewing the current March 31 deadline of the stamp duty holiday, which raised the minimum threshold for house buyers paying the tax from £125,000 to £500,000.

The Government wants legislation in the current session of Parliament to allow house and flat leaseholders to extend their lease to a new standard 990 years with the ground rent set at zero. 

Adkirk Law offers a niche practice with expertise in lease extensions, residential conveyancing, regulatory law, including healthcare, fitness to practice, serious fraud, general regulation and police misconduct.

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Let’s see detail on leasehold reform, says expert

By Linda Kirk of Adkirk Law

Plans unveiled to reform the leasehold housing system affecting up to 200,000 homeowners in Lancashire has received a cautious welcome by Adkirk Law.

Costs of extending residential property leases or purchasing the freehold of their property – to be brought before Parliament this year – could save some homeowners up to £9,000

The move comes following Adkirk Law’s support for the National Leasehold Campaign, which has been lobbying the Government for leasehold changes over the last four years.

Linda Kirk, director of conveyancing at Adkirk Law, said: “As the region with one of the largest number of leasehold properties in the UK, this is a welcome step.

“However, the devil is in the detail here and we need to see how this will be rolled out. We will need to see if this is fit for purpose across the different types of leasehold and that it works for those who have been so badly affected across the region.”

It is estimated around one million homes in the North West are leasehold, the highest proportion outside of London, and that the changes could save homeowners between £8,000 to £9,000.

The Government wants legislation in the current session of Parliament to allow house and flat leaseholders to extend their lease to a new standard 990 years with the ground rent set at zero.  They are also going to abolish the marriage value which is used to calculate the premiums payable. However the finer detail as to how this will be implemented is yet to be announced and whether this will be sufficient to resolve all the issues with leasehold property.

The Government is working with the housing sector to develop commonhold as a potential alternative to leasehold in the years ahead where flat-owners hold the freehold to their property, and blocks are jointly-owned and managed.

Adkirk Law offers a niche practice with expertise in lease extensions, residential conveyancing, regulatory law, including serious fraud, regulation and police misconduct.

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