Deprivation of capital

The burden is on the LA to show that getting or staying on HB was a significant operative purpose of the claimant.  See attached decision for example, particularly para 20-23.

I’m sure someone posted with a similar case once. Perhaps a year or two ago?

I think client would stand excellent chance of appeal succeeding (if LA don’t revise I should ask for appeal to be expedited). Letters from her support worker and anyone else involved in her care & familiar with her history should help.

I think this is the similar one:
http://www.rightsnet.org.uk/forums/viewthread/4241/

You might contact the starter of that thread, in case they turned up anything useful?

I guess the case would have been clearer if she had decided to disclaim the inheritance, instead of taking and disposing of it.

Craven CAB welfare benefits - 30 January 2014 01:42 PM

I think this is the similar one:
http://www.rightsnet.org.uk/forums/viewthread/4241/

You might contact the starter of that thread, in case they turned up anything useful?

I guess the case would have been clearer if she had decided to disclaim the inheritance, instead of taking and disposing of it.

Yes, that’s the one- thanks!

She may well not have known that she could disclaim the inheritance but obviously it will depend on the facts of the case.

“But with the decision made and the client disputing, the burden switches so at appeal it’s for the client to prove that deprivation was NOT for the purpose of, etc”.

Sorry Tony I don’t agree. It’s not like an actual capital case where the LA has actual evidence, for example a bank statement evidencing a certain amount in the claimant’s possession.  Then the burden of proof does switch back to the claimant to show he no longer possesses it.  Deprivation cases are usually based on an assumption, often with little or no evidence to back it up.  In these kinds of cases LA’s will have not fully made out their supersession ground, so a tribunal after taking all the evidence first has to satisfy itself that the ground has been made out.  And, you’re right, that it is largely a matter of the credibility of the claimant’s evidence. 

I don’t think that pointing out that there are insufficient grounds for supersession can be taken to be read as a reluctance to explore the substantive evidence and I’ve never found that an issue at tribunal.  It is only by considering the evidence that one can make a proper determination as to whether the supersession ground can be made out or not.  It’s true that in tribunals with inquisitorial functions concepts like the burden of proof can largely be a matter of form rather than substance.  However, that’s not to say they have no relevance at all.  What the concept does do is remind the tribunal that after hearing the evidence, that it starts its deliberations in the correct place. 

But, I would certainly agree with you that it isn’t simple.

Edited for spelling

A point made in one of the linked threads referred to above seems especially powerful in this case.  If I was dealing with this for the LA I would have no hesitation in revising the decision on this ground.  The claimant lives alone in an HA property so her rent will be, what, £100 a week tops?  What kind of person deliberately gets rid of a house and £100,000 cash in order to keep £5000 a year of HB?  It makes no sense whatsoever.  She could live to be 100 and never get back what she has disposed of. There was quite obviously some far more important reason for her actions.

I know there have been deprivation decisions against claimants where someone has spent recklessly safe in the knowledge that benefits will be there to catch them, so it wasn’t a calculated act of deprivation but availability of benefits was still a factor in their thinking.

But this one seems to be a world away from that sort of case.  I think there is an overwhelming likelihood she would have done exactly the same thing for the same reasons if she wasn’t on HB.

Hi Tony

I usually don’t do written subs but I simply point out at the beginning of the hearing why I don’t think the (or any) supersession ground has been made out, e.g. evidence relied upon not robust enough, all relevant facts known to ther decision maker at the time, etc.