client has appealed against refusal of housing costs on grounds that mortgage for purchase of home was taken out before relevant time, but it turns out that the claim in may 07 was in fact backdated to Feb 07, when he retired, placing purchase date in March 2007 firmly with the relevant period, for refusal of help.

there's a commissioner's decision CPC/3226/2005 which finds in favour of the SEc of State's argument that although there can be no entitlement without claim, entitlement on a claim could be established retrospectively - in that case claimant took out loan well before claiming PC, but requested and obtained 1 years back-dating, catching the loan date within the period. there's a similar IS decision in CIS/0088/2008.

the only thing distinguishing this case is that client did not request backdating and it seems to have been automatic. does anyone know if they would do this? client doesn't seem to know anything about backdating, but if there's a form they send out asking for signature to confirm he wants his claim backdated, he might well have signed it...i'm dubious that even if we could establish that he did not claim earlier, the SoS would restrict himself in pension credit cases to 'entitlement is dependant on a claim' in the interpretation of 'entitled to' in para 4(4) of Sched 3.

If anyone is familiar with the procedures, it would be very helpful, but my main purpose in posting is for colleagues' opinions or advice on whether i should advise client to withdraw appeal, or not? i'd be very grateful for views...

i should add that disputing a point of law isn't exactly a quick enough fix for his problem - how he managed to obtain a £107K mortgage on retiring beats me... he tells me that the completion was delayed by 4 weeks by the lender over a query, he was unsure what exavtly, relating to his occ. pension (which is a modest £140 pcm) and also that he did not obtain financial advice from a financial adviser or his solicitor prior to completion.

I take it that he doesn't want to extract himself from the mortgage and, thereby, lose his house?

Jan

There might be a long shot you could try. There was an AA case (CA/3800/2006) where there was some uncertainty as to what the claimant’s circumstances were going to be in the short-term future. The commissioner decided that the DWP’s decision to supersede the award rather than suspend the award (which was more disadvantageous to the claimant) amounted to official error. In other words there could be official error where 2 courses of action were open to the Department and it chose the one more disadvantageous to the claimant.

Thus if, in your client’s case, he did not request backdating and the Department decided to backdate of its own initiative and that course of action was more disadvantageous to the claimant than the alternative (i.e. not to backdate) then that might to official error thus giving a tribunal a power to revise.

Worth considering don’t you think?

Paul

yes, thank you paul, i was thinking along those lines, but you put it so much more clearly...: ) i think it is a long shot, but i don't want to leave stones unturned,

gareth, without help with the mortgage interest he can't really afford to keep the property - his o/s mortgage is already 2k higher than when he took it out, just over 18 months ago...he cannot afford to rely on or to wait for a positive resolution to the PC problem... house sales are stagnant and probably he could only shift this with a big price slash...

he is probably a classic 'tulipmania' victim, and shouldn't have been granted a mortgage...if he can he be extracted from it it would probably be the best thing...can he be extracted...? (oh please...) : ) : )

The bible here from the FSA is MCOB, Mortgages and Home Finance: Conduct of Business sourcebook.

You can find this at http://fsahandbook.info/FSA/html/handbook/MCOB

This sets the rules for regulated sales of mortgages. If you can find breaches in the rules then it may, nb. MAY, open up the possibility of unwinding the process.

The first step, I think and I am not an expert nor authorised in this, or any other financial advice area, is to find out if it was an advised or an unadvised sale. My suspicion is that it was probably unadvised, which may make it harder to make somebody else responsible.

If it was an advised sale then 4.7.4 includes

"the firm has reasonable grounds to conclude that:

(a) the customer can afford to enter into the regulated mortgage contract; "

But even in unadvised sales there are duties on firms to act in the interests of customers - TCF - treating customers fairly - is the overriding rule the FSA applies now and it's up to firms to decide what that means; and then for the FSA to tell them they're wrong.

4.8.2, for example says:

"(2) In the course of a non-advised sale a firm may decide that a customer is considering a regulated mortgage contract that is inappropriate for that particular customer. Firms should note that, in such circumstances, although they are not providing advice to the customer, they are still conducting a regulated activity and are subject to the high-level standards, including PRIN. Principle 6 (Customers' interests) requires a firm to pay due regard to the interests of its customers and treat them fairly. A firm selling what it considered to be an inappropriate product, would be in breach of Principle 6 as it would be conducting a regulated activity without regard to the customer's interests. In the FSA's opinion, the appropriate course in such cases would be for the firm to tell the customer to seek advice."

It's also possible for unadvised sales to turn into advised ones if the firm says or does something which can be construed as advice.

I should try to get more detail about the taking out of the mortgage; who, how and when.

thank you very much for this, gareth. much apprecoated.

If you get the mortgage agreement set aside, what then happens to the home he lives in? Does he get it as a present from the lender?

I think the rule of thumb in financial services is that the provider has to put the customer back into the position that he would have been in if he hadn't taken the deal.