Flat abroad given away now husband homeless

Billy Durrant - 05 March 2015 06:20 PM

Man was gifted a flat abroad by his parents, said verbal agreement that it was only if he lived there and he could not rent it out or sell it.

so did they really give him it at all?  sounds to me that they didn’t.  if they had given him it, they could not (legally, subject to the laws in the relevant country) put that sort of condition .

you either give something away altogether, or you still own it.

surely, given that you say the parents have it back, the parents should be providing relevant evidence to that effect?

Thanks Claire. From what I understand legal ownership was transferred from parents to son (equivalent of deeds/ land reg, etc, maybe for free or £1) with a kind of gentleman’s agreement/understanding that he would not sell it or rent it out. He felt honour bound to uphold this rather than it being a strict legal condition of the sale/transfer. Could this still potentially invalidate his ownership?

Claire Hodgson - 05 March 2015 07:43 PM

surely, given that you say the parents have it back, the parents should be providing relevant evidence to that effect?

 

It’s late and I may be misunderstanding you but I don’t think there is any dispute that he has transferred ownership back to parents, probably thinking that if he did so he would no longer have capital and therefore could claim HB again. I presume he came a cropper as he did not understand deprivation of capital/notional capital rules.

In relation to the on-going issue, presumably the appeal was centred around the issue of the actual capital rather than deprivation. I imagine client made a new HB claim following the transfer of ownership back to his parents and if so he needs to lodge a fresh appeal against that decision (the deprivation decision). You could ask for that appeal to be expedited in view of his circumstances & heath issues.

If he moves back currently in I can’t see a way around HB being refused again regardless of whose name the claim is in.

The distinction between a legal interest and a beneficial interest is important. The legal interest really doesn’t matter; what matters is the resources available to a person claiming means-tested benefits. If he has no right to the proceeds of sale, or indeed is not allowed to sell it at all, then I fail to see how it forms any part of the assessment of his means.

Or have I misunderstood?

There needs to be some clarification on this. You cannot (in my opinion) represent both your client and your clients ex-partner (indirectly) through your client. This wont work. If you, and he are worried about his ex-partner and child, then they need some good quality independent homelessness advice urgently. (If not, the ex-partner and child are going to end up homeless even if you and your client dont intend this…...and you might also get accused of being involved in a “contrived” situation). 

You have to play this with a straight bat. if he says he is homeless, then at least advise him he can make a Homelessness application at this stage.(he has no legal interest in any property)

I dont see how you can make a judgement on the old stuff without contacting the RSL and requesting their assistance over which periods he was a sole and joint tenant and how on earth he was “persuaded to take his name off a tenancy” (?).......(in law your client would have to give notice for both parties and thee RSL would have then had to sign her up) To me without this information its guesswork…....

Thanks all, appreciated.

1964 - 06 March 2015 08:25 AM

If he moves back currently in I can’t see a way around HB being refused again regardless of whose name the claim is in.

This is the thing that worries me but I don’t quite understand why. Could you please explain or reference the legal block? IF husband is effectively a non-dep & tenancy is in wife’s sole name what would stop her HB (they have been separated over a year)? Agree re. possible 2nd appeal.

Martin, I agree that more info needed and it would not be good to represent both husband and wife. I’ve only met the husband and just acting for him although there likely will be some impact on wife so I was planning to suggest she gets advice from elsewhere (if she hasn’t got it already). LA refused temp on Thurs but took a homeless application from him Friday, is ongoing but preliminary view is he is not homeless and sent him back to wife’s house. Client has switched his phone off but LA say he agreed to do this.  This may just be a temporary solution for LA , if it kiboshes all HB he will be back again soon enough.  I’m not back at that job until Thursday… the joys of bits and pieces funding in the voluntary sector and 2 part-time jobs.

Anyone any views on whether the capital could be split between husband and wife as per my original post? This may not be best option but I wanted to know if it is possibility as potentially it could halve the time he has to wait for diminution of notional capital to take effect. I very much doubt he will be interested in pursuing this if impacts negatively on wife & child but his options don’t look great.

Ok, the reason why I suggested the Hommeless application, was that if your client is saying he is homeless, and has vulnerability issues then I dont really see a alternative.

In terms of a homeless application, if the LA has “sent” your client to his wifes home, it probably means that either he remains a joint tenant OR she is now the sole tenant, but she has verbally agreed to let him live there now. The fact that he is no longer in the car is an improvement…But you really need to know which…..

The LA should furnish your client with a Section 184 letter, after completing enquiries,... if he is “not homeless” they should state their reasons.

You could also ask them why they have not accommodated under Section 188 (a preliminary decion to accommodate pending further enquiries), to see what they are thinking. You might also want to ask them (the homeless unit) what are your clients Housing Options.

Either way, it might give you an insight into the HB issue, as the Homeless Persons Unit will probably make enquiries with both the RSL and HB office, before coming to a decision on the Homeless application.

Billy Durrant - 09 March 2015 11:38 AM

Thanks all, appreciated.

1964 - 06 March 2015 08:25 AM

If he moves back currently in I can’t see a way around HB being refused again regardless of whose name the claim is in.

This is the thing that worries me but I don’t quite understand why. Could you please explain or reference the legal block? IF husband is effectively a non-dep & tenancy is in wife’s sole name what would stop her HB (they have been separated over a year)? Agree re. possible 2nd appeal.

Ah! I had missed the vital point that he would be moving back in on basis of being a non-dep rather than partner….on that basis I suppose it will all depend on whether the LA accepts he is a non-dep or decides they are cohabiting (I can see you with a third appeal on your hands….)

If they are still legally married they will have to show that they are not living in the same household.

Household is not defined, but the starting point will be that there is prima facie evidence of a shared household if they are living under the same roof.  The position would be different if they had never married or were divorced.

See CH/2267/2005

The main operative purpose of the deprivation has to be to get or increase benefit - you may find out tomorrow if there were any other reasons for giving it back?

If he could get into temp acc, one side effect of that would be to accelerate the diminution of his notional capital becasue the rate of HB “lost” would be greater than the HA rent.  Also, has he claimed and been refused any DWP benefits for the same reason?  If so, make sure the Council knows that and has factored it into the dimininishing notional capital calculation (and indeed that DWP has done the same).  As a truly desperate measure, which would obviously have other consequences, he could even move to the Central London BRMA, claim HB there and get through £240-odd a week of diminishing capital before he gets evicted.  Obviously not entirely a serious suggestion, just trying to think of ways to speed things up. 

I can see why the Council (and presumably the Tribunal too) took the view that he had a beneficial interest in the property.  If he wasn’t allowed to sell or rent it, what was the point of him owning it at all?  Why didn’t his parents just say “would you like to use our flat?”  How would they have stopped him from selling/renting without any documentary evidence?  So that part of the talew doesn’t really stack up for me.

As someone said above, each HB claim he makes requires a separate decision and he can appeal against each one.  Even if he lost on the deprivation point, a new Tribunal could still carry out a fresh factual investigation into the valuation.  Obvious things like - did they deduct 10% for selling costs?  Was there evidence of a market in the area where the flat is situated (which is the correct approach to valuation of overseas assets: CH/4972/2002).

PCLC - 19 March 2015 04:23 PM

The main operative purpose of the deprivation has to be to get or increase benefit

Not the main purpose - a significant operative purpose.

Where A transfers the legal title to property to B for no consideration (money or money’s worth) then unless the contrary intention appears (i.e. evidence of an outright gift) A retains the beneficial interest and B holds the property on a resulting trust for A.  However, I can see why some suspicion is aroused in this case.  Why, for instance, as already mentioned, didn’t the parents just let him live there on an informal basis.  That said, these kinds of arrangements over real property or assets are not uncommon, often for tax avoidance purposes.

I won’t rehearse the notional capital/deprivation issues.  Others have covered that.  But I agree with Claire.  I’d want to explore the arrangement and intentions behind the transfer also.  Impure intentions of the parties would not of themselves defeat the trust.  Even criminal intentions unconnected with the trust itself would not necessarily defeat it (see Milligan v Tinsley where the HL, somewhat controversially, upheld the trust, which was created as part of an attempt to defraud the DWP).

Resurrecting this old thread as the case has now found its way back to rehearing and I am better acquainted with the facts…Housing situation all resolved, case is about whether client deliberately disposed of capital to claim HB.

My understanding of the facts are that:
- Client’s parents owned a flat in a housing co-operative in Poland which they did not live in
-My client was living in Poland at the time and had nowhere to live
- In order to live in the flat the rules of the co-operative state that you have to own it or pay (taxable) rent to the owner (cannot live there otherwise)
- Parents transferred legal title to my client as a gift with verbal understanding that if he no longer needed it he would gift it back to parents
- Under Polish tax law gifts of property to family members are taxable unless a particular type of agreement was signed and my client lives in it for 5 years (they signed this)
- Client lived there for 3 years then moved to UK to work. Never bothered to transfer title back as flat remained empty
- 10 years after transfer of ownership he left work due to illness and claimed HB. Refused due to title to flat valued at £30k
- Client goes to Poland and transfers legal title back to parents as gift. Reclaims HB and is refused due to deliberate deprivation/notional capital

Client says that the flat was never his to sell, it was just put in his name to enable him to live in it and avoid him having to pay rent to his parents which, even if he did not pay, tax would be due on. The argument for the re-hearing therefore is that the parents retained beneficial ownership, the transfer of legal title was just a convenience to enable him to live there and to avoid tax. He could never have sold it and realised his asset because that would have broken the verbal agreement under which he was given it.

I have read CH/510/2010 and CSJSA/411/2009 which, although slightly different subjects, seem to be generally helpful for my client. Can anyone point me to anymore case law that may be helpful, especially HB case law?

many thanks.

you may need some evidence of the relevant polish laws, transfer documents, all translated into english, and you will need evidence from the parents as well, otherwise the tribunal may take issue on credibility grounds…..and in any event when you want to evidence foreign law you have to prove it properly.