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You and the Law – 26th May 2009

Riches to charity

My husband’s uncle died last year, leaving a number of bequests including shares in a family business. However, he left the bulk of his estate to a charitable fund.

The fund now operates under a different name to the one mentioned in the will, and we have been advised that this part of the will can therefore be contested. What’s the position? SM

You should obviously take detailed advice on this, but it’s likely that the various name changes of the charitable fund will be incorporated into the trust deed to cover exactly this situation.

However, even if this hasn’t been done, it¹s unlikely that the gift would fail and the money be distributed among yourselves. Where the literal execution of a charitable trust becomes impracticable, the court will apply the gift to a charity as near as possible to the original purpose named by the donor.

Poor man’s travels

When I approached the Child Support Agency for an increase in maintenance for our two children, my ex-husband claimed to be in such severe financial difficulties that no increase was ordered.

Then, within a matter of weeks, he booked a family holiday to America with his new girlfriend.

I was so incensed that I refused permission for the children to go with them, since it was in term-time. Was I right to do this?

In view of the holiday can I not pursue my case for a maintenance increase? RB

Generally speaking, it’s not a good idea to involve children in money squabbles, although your anger is understandable.

Of course maintenance calculations will not take into account any income provided by your ex-husband’s new partner. It’s possible she is fairly affluent even if your ex-husband has no money.

I presume the CSA looked into your ex-husband’s finances.

If you can provide evidence that he was being less than truthful you can go back to them; discuss this with your solicitor.

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You and the Law – 19th May 2009

Holiday pay withheld

My wife left her employment three months ago, at which point she had taken no annual leave. Her employer told her that because she hadn’t taken any holidays they were forfeited. Is this right? RT

No. Your wife was entitled to a payment in lieu of her lost holiday.

If she worked six months of the firm’s leave year, for example, she should be entitled to half her annual holiday pay.

She should use the firm’s grievance procedure to attempt to sort this out.

If necessary she could take her case to an employment tribunal, but this must normally be done within three months.

If it wasn’t ‘reasonably practical’ for her to bring her complaint within this period it may be extended. But otherwise your wife may, at this stage, have to sue her former employer for breach of contract in the County Court.

Shirking son

A friend stood as guarantor for a £1,000 computer bought by her adult son.

He hasn’t a shred of conscience and has probably sold the computer, and now he¹s stopped giving her the £14 a week repayment. Could she take him to court and have the money taken from his benefits to cover the debt? MB

I’m afraid County Court rules prohibit the equivalent of an attachment of earnings order on DWP benefits.

The best a court could offer would probably be an oral examination of the son’s means, at which repayment terms could be agreed.

But if the son failed to pay, the mother would have to apply for authorisation for a bailiff to seize goods.

These measures all cost and I think your friend would probably be throwing good money after bad.

She would probably get further by giving her son a good talking to.

Arranging a family conference may have the desired effect.

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You and the Law – 18th May 2009

Holiday pay withheld

My wife left her employment three months ago, at which point she had taken no annual leave. Her employer told her that because she hadn’t taken any holidays they were forfeited. Is this right? RT

No. Your wife was entitled to a payment in lieu of her lost holiday.

If she worked six months of the firm’s leave year, for example, she should be entitled to half her annual holiday pay.

She should use the firm’s grievance procedure to attempt to sort this out.

If necessary she could take her case to an employment tribunal, but this must normally be done within three months.

If it wasn’t “reasonably practical” for her to bring her complaint within this period it may be extended. But otherwise your wife may, at this stage, have to sue her former employer for breach of contract in the County Court. 

Shirking son

A friend stood as guarantor for a £1,000 computer bought by her adult son.

He hasn’t a shred of conscience and has probably sold the computer, and now he’s stopped giving her the £14 a week repayment. Could she take him to court and have the money taken from his benefits to cover the debt? MB

I’m afraid County Court rules prohibit the equivalent of an attachment of earnings order on DWP benefits.

The best a court could offer would probably be an oral examination of the son’s means, at which repayment terms could be agreed.

But if the son failed to pay, the mother would have to apply for authorisation for a bailiff to seize goods.

These measures all cost and I think your friend would probably be throwing good money after bad.

She would probably get further by giving her son a good talking to.

Arranging a family conference may have the desired effect.

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You and the Law – 12th May 2009

Taking on responsibilities

My son is buying a house worth £170,000.

His partner, who has a son from her previous marriage, doesn’t work and is not paying anything towards the mortgage or bills.

I don’t want them to split up as I like the girl, but I wonder whether she would have any claim on the property if they were to separate, leaving my son with half the value of the house and a huge mortgage?KL

If the girl friend’s son becomes a ‘child of the family’ she could seek a home for it until it ceased to be dependent.

If they were to split up this is the likely outcome, but the property would revert to your son when the child reached 18 unless the girl friend was able to persuade a court to transfer it into her name.

Your son should buy the house in his own name rather than in joint names.

Your fears are justified, but it’s a common problem.

Make sure your son discusses the situation with his solicitor so that he enters into the relationship with his eyes open.

Part-time/Overtime

I’ve worked 25 hours a week for a firm for the last 18 months, and do a lot of overtime. Should I be paid time-and-a-half for this? From what I understand you have to work 37 hours before you get time-and-a-half. TC

It depends what they’ve been paying you for working overtime in the past, and what it says in your contract.

If they don’t pay enhanced rates at present, what you’ve been told is probably correct: under the Part-Time Workers’ Regulations you are entitled to the same hourly rate of pay as comparable full-time workers, and to the same hourly rate of overtime, but only once you have worked more than the normal full-time hours.

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You and the Law – 5th May 2009

Wife’s burden

When my son married, his wife already had a mortgage in her own name. For a number of years he has been paying two mortgages, but he’s now unable to do this and her house is being repossessed.

Is my son liable for his wife’s mortgage, and will it affect him in any way? RW

As long as the mortgage is in his wife’s name only, your son won’t directly be responsible for any money owing once the house is sold.

However, if the couple have any bank accounts or assets in joint names, if they jointly own the other house for example, these could be at risk if the lenders pursue the debt.

They should take advice immediately. If the wife owes money after the house sale the couple will probably find it difficult to borrow money in future, since they share a household and their finances are linked.

If they could find a buyer it would cost them a lot less to sell the house themselves rather than allow it to be repossessed.

In the dark

QWE took our employers to the minimum wage tribunal and won our case. It was investigated by the Inland Revenue. The firm appealed against the decision in January, and we¹re now trying to find out if a date has been set for the appeal, but they keep telling us they don’t know. Is there a time limit for this type of thing?

MP

A No. After the tribunal hearing either of the parties have up to 42 days in which to appeal.

But once an appeal has been lodged the matter becomes part of the judicial process and there is no set time in which the appeal must be heard. Keep in touch with the Inland Revenue.

If it is decided that an underpayment has been made you will not only be entitled to the minimum wage in future but to any back pay owing.

 

In the dark

We took our employers to the minimum wage tribunal and won our case. It was investigated by the Inland Revenue. The firm appealed against the decision in January, and we’re now trying to find out if a date has been set for the appeal, but they keep telling us they don’t know. Is there a time limit for this type of thing? MP

No. After the tribunal hearing either of the parties have up to 42 days in which to appeal.

But once an appeal has been lodged the matter becomes part of the judicial process and there is no set time in which the appeal must be heard. Keep in touch with the Inland Revenue.

If it is decided that an underpayment has been made you will not only be entitled to the minimum wage in future but to any back pay owing.

 

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You and the Law – 28th April 2009

Don’t clear your desk

 My partner was recently offered redundancy in writing. She got another job and was waiting for a date to be set for her redundancy when a junior member of staff left.

 Now the firm says she has to fill the junior member of staff’s position. This has been very stressful for her; what should she do? AM

It’s not quite clear whether your partner actually accepted the redundancy offer. If she did (preferably in writing) then a contract exists which her employers cannot go back on.

She might be able to take up her new job and if necessary sue her former employers for her redundancy payment.

If things weren’t quite so cut and dried your partner should discuss the details with a solicitor.

She will probably be able to claim unfair dismissal if she’s forced to accept a junior position on a lower rate of pay.

Missed holiday

Last year we had a holiday in Australia and were due to spend five days in Thailand on the way back. But because Bangkok airport was closed we were put up overnight in a hotel in Kuala Lumpur at Emirates Airlines’ expense and then had to come home early.

However, the travel agent refuses to refund the cost of the part of the holiday we missed. What’s the legal position? CB

The closure of Bangkok airport was an event that neither the airline nor the tour operator could have foreseen or avoided.

In these circumstances you are probably not entitled to compensation, although you should check your insurance since that may cover you for any out of pocket expenses you incurred.

European law requires European carriers flying in and out of the EU to provide passengers with catering and overnight accommodation where necessary; it would appear that your airline complied with this even though not subject to EU law.

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You and the Law – 21st April 2009

Rash signature

While working as a self-employed bookkeeper I stupidly signed to act as guarantor for a car the firm was leasing.

The car was stolen and never recovered. By this time the firm had ceased trading and reopened under the name of the owner’s wife, and the insurers offered a payment to this firm on condition that all outstanding finance was cleared first.

They just took the money, and I am now being pursued for the debt.  Shouldn’t the insurance company have checked to make sure the debt was paid off before writing a cheque? LC

It’s not at all clear why the insurers paid out to the new firm, which presumably wasn’t a party to the finance agreement.

Perhaps the vehicle wasn’t leased at all, but purchased through a personal loan which you guaranteed?

If that was the case you could pursue the wife, or whoever took out the loan, for any money you have to pay the finance company.

If the vehicle was leased the insurers should have paid out to the liquidators of the original firm. You may have a case against the insurers, but to get to the bottom of this you should see a solicitor.

Point of interest 

Four years ago I was involved in a car accident in which I was the innocent party.

In December I was awarded £10,000 for injuries and other damages, and a cheque for £1,000 has been sent to me with the balance to come from the courts.

Am I entitled to interest on the £10,000 from the date of the accident? TM

You are entitled to interest on your financial losses from the date of the accident to the date of settlement, and interest on your injury award from the date of service of court proceedings to the date of settlement.

This money is included in the settlement, and so the £10,000 includes interest. If the court is slow in paying out the balance of £9,000 you may be entitled to additional interest.

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You and the Law – 14th April 2009

Clearing the decks

When my wife died her share of our property went to our children. I am now considering giving them the other half in order to simplify things. Is this a good idea? I am also thinking of putting my finances into trust for them.

Am I right in thinking that once this is done I will not be able to touch the money? Of course I have made a will leaving everything to them anyway. AG

You should really discuss your finances in detail with a solicitor. What you’re suggesting in respect of your house will not help to avoid inheritance tax because if you give away an asset and carry on enjoying it, the asset given away will still be taxed on your death as if you owned it at the date of your death.

The proposed gift won’t necessarily save on care home fees either, if that’s worrying you. Generally speaking it’s not a good idea to give others, even your children, outright control of your money and property. If they were to die or get divorced you could lose both.

Setting up a trust could well deny you access to your capital, depending on the wording of the trust document, and could add complication rather than simplification!

For richer, for poorer

I’m quite heavily in debt, but I’ve come to an arrangement with my creditors over repayments. However, I’m getting married in six months’ time, and wondered if my future husband will become liable for my debts in any way? LB

Husbands and wives are not usually responsible for each others’ individual debts.

However, if you open a joint bank account for example, or buy a house in joint names, your creditors could try to get their money from these.

So you’ll have to be a bit careful about linking your finances while you still have debts outstanding.

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Will Week – a great success!

We are very happy to report that the Will Week scheme, in which we participated in support of St Anne’s Hospice, has been a great success. The response received from the public has been extremely positive, and the level of interest far greater than in any previous year.

The main benefit of the scheme, which offers clients the opportunity to make a charitable donation in lieu of professional fees, is that it not only raises awareness for a very worthy cause, but that it also generates much needed financial support. In addition the scheme highlights the importance of making a Will and provides the perfect opportunity to do so. Many people simply may not find the time to make a Will, or may not fully appreciate the consequences of failing to do so.

It is important to remember that if you die without leaving a valid Will you are deemed to have died ‘intestate’. In this instance you will have no influence as to who benefits from your Estate, and instead this will be governed by the intestacy rules. This potentially means that the people you would like to benefit upon your death may be overlooked, or that others may not receive the amounts that you would have hoped. Your wishes can only be implemented if there is a clear, concise and properly drafted Will in place to offer guidance to your personal representatives after you have gone.

If you were unable to utilise our Will drafting services as part of this year’s Will Week scheme, but are nevertheless interested in dealing with this very important issue, please contact the Department Secretary, Rebecca Milburn, on 0161 785 3809 to arrange an appointment.

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You and the Law – 7th April 2009

It’s all mine

MY partner moved in with me 12 months ago – the house and everything in it belongs to me. He is shortly to be served with a bailiff’s order, and I would like to know what can be seized to pay off his debts. Can they take my things? AD

No. There are several types of bailiff, depending on who your partner owes money to, but none of them can seize property that belongs solely to you, although joint purchases are at risk. It would be sensible for you to gather as much evidence of your ownership as possible (receipts, bank and credit card statements and the like).

However, if you tell the bailiff that you own the goods, it¹s unlikely they would be seized, since you
would have a right to sue the bailiff for compensation. If the bailiff does seize your property you can bring a “third party claim” to establish that the goods do belong to you and, as such, cannot be seized.

Computer glitch

I WAS made redundant last year and paid £2,500 to do a computer training course in two parts, spread over 12 months. However, part way through the first course I discovered that one of the software providers was scrapping one of the exams at the end of the year. I have tried to cancel the course and get my money back but without success. What do you recommend? CB

It’s not quite clear what the effect of scrapping the exam will be, but for the sort of money you paid you are entitled to get something. If it means you won’t receive a recognised qualification at the end of your course you should be entitled to your money back.

As experts in the field of computer training the firm should be aware of changes in the industry and be able to offer courses that will be of use. If they can’t offer you an alternative they should refund your money, and if necessary you can start proceedings against them in the small claims court.

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You and the Law – March 31st 2009

Sink or Swim

WE’VE had letters saying our jobs are at risk, and we’ve been asked to go to a meeting. They want us to put in writing what changes we¹d be prepared to accept, but the company won’t commit itself about what it is
prepared to pay, or what the hours will be under the new regime.

Do they have to put an offer to us in writing? We’ve been told we cannot claim redundancy if what they eventually offer is unsuitable. Is this correct? GB

I THINK it would be a good idea for the employees to ask a lawyer specialising in employment law to attend the meeting. Employers can alter workers’ contracts if it is “reasonable in the circumstances” to do so. If
the choice is between the firm going bust and paying employees less for longer hours, it is possible an employment tribunal would sympathise with the employer.

I take it you all have individual employment contracts which are not subject to a collective agreement. In that case your options will depend on the extent of the proposed changes. You won’t be entitled to a
redundancy payment. If the firm goes under you may be entitled to a comparatively small payment from the government.

Lost Sheep

MY sister and I have been left some money by an aunt. Years ago she had a son who was adopted, and he now says he’s going to contest the will. Has he the right to do this? MC

NO.  As long as he was formally adopted by the other family he will have no claim on his natural mother’s estate, unless for some reason she was supporting him financially at the time of her death.

Adoption severs the blood tie in law.  He would have a potential claim on his adoptive parents’ estate.

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Employment Law – Important Changes

From the 6 April 2009 two important changes occur.

Disciplinary, dismissal and grievance issues

There will be more flexible rules in connection with disciplinary, dismissal and grievance issues.

The existing statutory procedures as set out in the Employment Act 2002 will be repealed and a new ACAS Code will come into being.

Employment Tribunals will have discretionary powers to adjust awards by up to 25% if employers or employees have failed unreasonably to comply with the Code.

In short, the new dispute resolution system places increased emphasis on alternative dispute resolution mechanisms, including mediation, to encourage earlier resolution.

Flexible Working

The right to request flexible working is being extended to all parents of children aged 16 years or under.

We recommend that employers review their existing procedures.  For more information as to how you might be affected, please contact us to arrange a consultation.

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You and the Law – March 24th, 2009

Minimal input

After 10 years of marriage my husband and I have decided to separate. We have two small children. I bought the house when I was single, and the deeds are in my name only. My husband has never worked and never contributed to any costs of living while we¹ve been married. What will my husband be entitled to when I sell the house in the next 12 months? DH

IF the children are going to live with you then a court might allow you to remain in the house until they’re 17. Your husband might therefore be prepared to accept a smaller share of the family assets if you were to
offer him something now, rather than making him wait until the children leave home. If you sell the house now you will lose this bargaining chip.

A court would take into account your husband’s lack of financial contribution to the marriage, but it will be just one of many considerations. The fact that the deeds are in your name only may count for little.

Ten years is a long marriage by today’s standards and he will almost certainly be entitled to something, but you will need a solicitor’s help to work out the details.

Major Blow

Some slates were blown off my roof, and others dislodged, in recent high winds. An outbuilding was also damaged. But while the insurers accepted my claim for the outbuilding, they refused to pay out for the roof, saying it was in poor condition. I asked the met office for a weather report on the day in question, but they quoted over £200. What do I do next? SP

IF you think your roof is in a generally sound condition you may need to bring in an independent surveyor to draw up a report to that effect. Check your policy carefully. It’s possible that, if your insurance company accepts the report, they will pay the surveyor’s bill.

However you will also find in the policy document words to the effect that your insurance does not cover you for the cost of gradual deterioration, and that it is not a maintenance contract.

If you need a new roof don’t throw good money after bad.

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You and the Law – March 17th, 2009

Pleading poverty

I WAS divorced eight years ago, but the Child Support Agency (CSA) have had no luck in getting my ex-husband to pay maintenance for our four children. This is despite the fact that he is manager of a firm, lives in an expensive house, and has a thriving shop and a house he rents out. I have been told that it is up to me to prove what his assets and income are. Surely this cannot be true? HM

YOU will have to give the CSA something to go on. If you can demonstrate that your ex-husband’s lifestyle is inconsistent with his declared income you can ask the CSA to make a ‘departure’ from the maintenance formula.

An independent tribunal would then look at the evidence.

I suggest you do some detective work, including asking the Land Registry for details of ownership of the properties. It’s a criminal offence to withhold information from or supply false information to the CSA, which
has powers to investigate the finances of non-resident parents.

Sacked for caring

I STARTED working for a bookmaker in October, and was dismissed at the end of last month with no notice because I took a day off to take care of my children. My employer says he’s not going to give me any of the money he still owes me. The legal advice centre says it will be difficult to do anything about this because I didn¹t sign a contract. EC

I SUGGEST you apply for an employment tribunal hearing. You are certainly entitled to a week’s pay in lieu of notice, and probably to some holiday pay. You may also have a claim for compensation for unfair dismissal since you took the day off to look after your children. Generally speaking you can only make such a claim if you have worked for your employer for more than a year.

However, you have a statutory right under the Employment Relations Act to take reasonable time off to care for dependants, and dismissal for asserting a statutory right is automatically unfair, even for those who have held their job for less than 12 months.

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Bequest helps five charities

John Ainley hands out the legacyTHE memory of a former doctor’s receptionist will live on with a donation of more than £15,000 to good causes.

Solicitor John Ainley distributed the legacy left by May Lees, who died in 2004 at the age of 94, between 5 organisations.

They were chosen to reflect her wishes to support people with health problems, and disadvantaged children.

Dr Kershaw’s Hospice Royton and Francis House Children’s Hospital, Didsbury, both benefited along with the Masonic Fishing Charity which helps mentally and physically disabled people to enjoy fishing.

Donations were also given to The United Reformed Church, Union Street, Oldham, and EN Fundraising, a branch of the Link for Pink appeal to raise money for the Royal Oldham Hospital’s Victoria Breast Care Unit.

Miss Lees was born in Oldham and never married.  She lived for many years in Wallshaw Street, Mumps, before moving to Franklin House residential home, Coldhurst, in 1999.

Mr Ainley, senior partner at North Ainley Halliwell, Clegg Street, was her solicitor for more than 30 years.  Miss Lees asked him to divide part of her estate between good causes of his choice.  He said: “Miss Lees was an independant and generous lady.  I think these gifts reflect her wishes.”

Story and Picture – Oldham Evening Chronicle

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You and the Law – March 10th, 2009

Calling time

I’VE worked three days a week for a firm for seven years, putting in an eight-hour day. Until recently they¹ve paid me at time-and-a-half for any extra hours worked. But a new manager now says if you don¹t do 40 hours a week he doesn’t have to pay overtime. Is this true? LK

Part-time workers should receive the same hourly rate of overtime pay as comparable full-time workers – but only once they have worked more than the normal full-time hours. You are entitled to the agreed payment for any extra hours worked to date.

But unless you are contractually obliged to work overtime (in which case you might be able to argue that the time-and-a-half rate has been set by custom and practice) you will have to reach a new agreement if you want to continue working extra hours.

As things stand, you’re not obliged to work overtime and your employers are not obliged to offer it.

Caught in a trap

MY son was caught in a speed trap and didn¹t supply any information about the identification of the driver. He’s now been issued with a summons. I thought there was a European law about the right to silence? MP

Under the Human Rights Act (which incorporated the European Convention into British law) you have the right to a fair trial, including a right not to incriminate yourself.

However, the courts have decided that there is no conflict between this right and your obligation under the Road Traffic Act to supply details of the driver of a vehicle where it is alleged that an offence has been committed.

Individuals have a possible defence that they are unable to provide the information despite
‘reasonable diligence’.

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Will Week 2009 2nd – 6th March

We are once again delighted to be supporting St Ann’s Hospice Will Week as it is such a worthy cause.  People don’t always realise that if they don’t make a Will there are rules of law which set out who will inherit their Estate. This may mean that their assets do not necessarily go where they would like.

For example, from the 1st February 2009, for married couples with children, only the first £250,000 passes to the surviving spouse.  Of the residue, half will pass to the children with the surviving spouse only receiving a life interest in the other half. With current  house prices and for people in second marriages, the best way to ensure that what you leave behind goes exactly where you want it to go is to write a Will or update an existing one.

The Will Week Scheme enables people to have a Will prepared and at the same time benefit an extremely worthy cause. Under the terms of the Scheme we will prepare a simple Will for a client, then instead of us receiving a fee the client makes a donation, through ourselves, to the Hospice. In 2008 the Scheme raised £32,250.00 for the Hospice.

If you would be interested in having a Will prepared under the Scheme please contact the Department Secretary, Rebecca Milburn on 0161 785 3809 to arrange an appointment.

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Family’s premier prize

John Ainley passes the tickets to young MarkA MOORSIDE family is in for a treat after winning a raffle which netted £1,300 for Dr Kershaw’s Hospice.

Cindy Caroll bought the winning ticket in a draw which means the family will be VIP guests at Manchester United’s game with Portsmouth.

Cindy, husband Mark, their seven-year-old son Brandon and Cindy’s brother-in-law Garry Shearman are excitedly looking forward to their big day out.

The match was set for the weekend but has been postponed because it clashes with the Carling Cup final.  It is yet to be rescheduled.  Cindy bought the ticket from Dr Kershaw’s Hospice to support its work when her mother, Mary Robinson, was admitted earlier in this month.

Mrs Robinson, who lived in Goya Rise, Sholver, died the following day, but Cindy said she would have been thrilled to bits if she had known her family had won the top prize.  The four will drive to Old Trafford on the day of the match, where they will get free parking and enjoy a slap-up meal, with wine, before watching the game.

The prize was donated by Oldham solicitor John Ainley.  He met the family to hand over the tickets for the Premier League clash.

Cindy (35), of Hodge Clough Road, Moorside, said: “I bought the ticket for Mark and Brandon really – they are really happy.”

United fan Mark beamed:  “I have been to matches before, but never like this.  I usually just end up getting a butty outside.”

Story and Picture – Oldham Evening Chronicle

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