Our client had a big win at the bingo and shared the money out among her immediate family.

Unfortunately for her someone tipped off the DWP who have now stopped her IS under the deprivation of capital rules.

Has anyone any experience of successfully appealing a case like this? Are there any nice wee loopholes out there that would allow winnings to be disregarded? It seems an awful shame otherwise - she's worse off than when she started.

Any suggestions gratefully received.

Helen

Rather a lot to be said but they are not loopholes they are the law.

The decision to terminate the income support should be appealed.
It may not be valid using the usual questions about revision and supersession. Despite the tribunal of commissioners decision this
is still worth raising as the commissioners left the door slightly ajar and of course we still await the decision of the Court of Session in Docherty which covers the same ground.

It is most important to appeal the terminating decision for another reason.

If there was a gap between the date the money arrived and the date that the income support was terminated then there will be a potential
for the DWP to say that there is an overpayment for that period. If you don't challenge the terminating decision it might be argued when you come to the overpayment appeal that you can't challenge the
underlying supersession.

If you don't appeal the terminating decision when you come to the
overpayment appeal it might be said that you cannot raise questions
about whether revision and supersession have been validly done.

When it comes to merits of the case the burden of proof is on the department and they will have to demonstrate what the purpose was in disposing of the capital and this can be difficult for them. How for instance will they show that the claimant knew the capital rule?

Chris Orr

Thank you Chris. Sorry to be obtuse but I don't know much in the way of caselaw, less still what tribunal of commissioners decision you mean or what is happening in Docherty.

Further details would be appreciated.

Appeal form already filled in on grounds that client didn't know capital limit etc (but wouldn't it have been in her order book?).

Helen

I think reliance on not knowing capital limit alone might fail as that old familiar "ignorance is no excuse" would be levelled against you.
A few things came to mind. First was there a family agreement between the family members to share any winnings. That would be a contract legally enforcable in court and to avoid possible prosecution by family members she would have to ante up. If other family members had split winnings in the past that would show the performance of the contract.
Did she deprive with intent to secure or increase benefit?. Commonly the list of capital tends to concentrate on stocks, shares etc. A bingo win is a windfall, if thats all she perceived it as then maybe theres a possible argument that intent to deprive cant be proven because she never saw it as capital to be disclosed.

I'm not sure that I agree about the "ignorance is no excuse line". To my mind this only applies when the claimant is under a positive obligation to act, such as disclosing changes of circ's.

It is well established that if you are not aware of a fact you cannot fail to disclose it. Similarly, if you don't know the capital limits you can hardly be said to deprive yourself of capital for the purpose of claiming benefit. That would be, to my mind, be nonsensical.

I accept that nevip but I was looking at it from the viewpoint that a chair may also expect some facts to be more widely known than others. The most recent deprivation case I had involved a lot of time discussing the clients perception and knowledge of benefits and his responsiblity to notify this and that. That case was won on the point that although his wife had sold her house to her son for less than market value and they were aware of capital rules the intention was not to deprive as she saw nothing untoward as she was going to leave him the house anyway.