"Deprivation of capital for Housing Benefit decision but on a passporting benefit"
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Welfare Benefits caseworker, EAGA PLC Newcastle upon Tyne Member since 22nd Sep 2009
Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 10:00 AM
I have a query which seems quite logical but have been unable to find any guidance or legislation to back it up.
Client's partner received £19,000 in September 2009 following an accident but gave this all away to his uncle to repay him for the care and support he had given him during the healing process. They no longer have any savings or capital over £6,000. The DWP have agreed to pay income-based Jobseekers Allowance with no questions asked about the capital or where it went. The council have stated that they client needs to prove where the money went (by providing his uncle's bank statements) before Housing Benefit and Council Tax Benefit can be paid as they are stating it is notional capital. Client has asked for a review but the decision remains unchanged. Client has been unable to pay her HB and CTB since February 2010 as is due in court soon for the rent arrears.
Can the council make a separate decision on how to treat the capital or does the fact that the client is in receipt of a passporting benefit override the council even making investigations? For example, would an appeal simply on the grounds that the client receives income-based JSA be sufficient or would we need to appeal the decision on the notional capital and the intention to get rid of the capital etc.
Freelance HB & CTB Consultant/Trainer, Hertfordshire Member since 20th Jan 2004
RE: Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 12:07 PM
As it's JSA, I'm assuming that both the HB/CTB claimant and partner are aged under 60.
Strictly on the basis that income-based JSA has been awarded, the LA is simply wrong. The only basis the LA could legitimately withhold payment would be if the DWP is/was not aware of the circs in question. However, your post *appears* to imply the DWP is/was aware of the expended capital.
All income and capital is ignored for HB/CTB when a claimant and/or partner is receiving, and is lawfully entitled to, a passporting benefit. Relevant legislation is:
HB: Sch 6; para 5 CTB: Sch 5; para 5
Similar provisions apply to earned and unearned income:
HB: Sch 4, para 12 & Sch 5, para 4 CTB: Sch 3, para 12 & Sch 4, para 4
My advice is to submit a formal appeal for a Tribunal hearing, keeping the appeal simple. i.e. "I wish to appeal against (decision). The grounds are that all capital is disregarded for HB/CTB purposes and the Council is required to award HB/CTB on the basis of nil income and nil capital as I am on a passporting benefit. Relevant legislation is....".
welfare rights adviser, sefton metropolitan borough council, liverpool. Member since 22nd Jan 2004
RE: Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 12:11 PM
I wouldn't depart from anything Kevin has said but the sentence "the DWP have agreed to pay income-based Jobseekers Allowance with no questions asked about the capital or where it went" would worry me.
Welfare Rights Advisor, Reading Community Welfare Rights Unit Member since 25th Nov 2004
RE: Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 12:25 PM
"The DWP have agreed to pay income-based Jobseekers Allowance with no questions asked about the capital or where it went "
This doesn't tell us whether or not the DWP were told about the capital.
If they were then I would appeal simply on the basis that the council must disregard the whole of the claimants capital (paras 5/6 of schedule 5 HBR), and perhaps consider a complaint too.
If the DWP were not told then the council might have some justification following a commissioners decision that held councils are not bound to follow a DWP decision if the DWP benefit has been claimed incorrectly, or possibly fruadulently. Sorry, but I can't remember/find the reference or the exact conclusion, but you get the idea.
On a more general note, I'm finding that LA's are seeming to take quite a considerable interest in DWP benefits these days. And, quite frustratingly, I have had cases where the DWP benefit has ended becuase of the council's intervention - even where full disclosure has been made to the DWP - and then council refuses to deal with appeal saying they'll wait for an appeal on the DWP benefit. I'm not sure why this is, but would guess its either to do with the aforementioned CD or new powers they have (I think) to investigate and prosecute DWP benefits).
It's very aggravating though that they put a spanner in the works and then deny a responsibility to get the works moving again.
writer/editor, rightsnet Member since 16th Nov 2009
RE: Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 04:06 PM
here's a link to court of appeal judgment in R V South Ribble DC HBRB ex p Hamilton which says that HB must follow DWP unless concludes that claimant fraudulently concealing capital from DWP. As said in previous postings tho', if DWP have examined all the facts and decided that no notional capital, HB must follow that decision.
Welfare Benefits Officer, Gallions Housing Association, Thamesmead SE London Member since 22nd Jan 2004
RE: Deprivation of capital for Housing Benefit decision but on a passporting benefit Tue 08-Jun-10 09:05 PM
You might be able to develop an argument along the lines that since placing the money in a trust would enable your clients to keep the money and it not affect their benefits, this is evidence which suggessts that giving the money away was not done with the siginificant operative purpose of securing or increasing an award of benefit.
I otherwise agree with the other contributors re Hamilton