Hi.
I urgently need help - client owned her own property and was awarded PC of £74.13 per week from October 2003 to November 2009. Due to ill health she moved out of the property into rented accomodation in March 2004, and rented out her home. The Pension Service immediatly took the rental income as part of her income and withdrew her Pension Credit. I submitted a GL24, siting the fact that the previous property should have been treated as an increase in capital and therefore ignored for the duration of the AIP. The rental income was therefore irrelevant and should not have been taken into consideration.
The PS said they never received the GL24, so we submitted a copy. The decision was overturned on review in April - hurrah!! PC reinstated, big fat backpay, everyone happy!! But wait!! The renowned efficiency of the PS reared its ugly head!! The original GL24 resurfaced in July and yes, you guessed it - they sent it to the appeals service. I rang the Appeals Service, they agreed with me, the decision maker who upheld the decision apologised and everyone happy!! Hurrah!!
But no!! the GL24 has again been found,(don't know why!)- not linked with the papers and another decision maker has decided that the original revision was wrong - the rental income should be treated as income from capital and he insists on sending it to appeal. Blabbed on about loophole in law that everyone would take advantage of and insists I submit another GL24 to appeal against his decision to not allow a previous decision to stand, even though everyone was agreed on the outcome. Are you with me so far? No? Unbelievable I know.

Does anyone have any pointers to the legislation relating to a) rental income and how it is dealt with or b) a similar case!!!!! or any commissioners decisions that may help!!

THIS IS NOW URGENT!!

Thanks

Don't know if this applies, but I had a case where a client had a tribunal listed twice (for quite different administrative errors), winning the first and losing the second in part because she received notification only on the morning of the appeal. The chairman found against her in part because he didn't believe that had been unaware of the appeal and therefore unprepared because she "obviously knew that she had an appeal underway".

We had no difficulty in getting the Appeals Service to set aside the second decision, on the grounds that the tribunal had no power to hear the case because the decision had been superceded.

Having won the 1st appeal your client has had the original decision superceded, and that should mean that the second tribunal had nothing to consider. If they heard an appeal on a non existent decision I can't see how they can possibly argue that second appeal decision be applied...

I don't know about the rental income, but would assume that the second tribunal was wrong on a point of law.

Hope that helps.

(I may be completely wrong - or your case may be different)

Victoria.

Hi Zoe
so this case rumbles on ...
Has the client's existing PC award been stopped?
What is the pension centre now saying? A decision maker has seen your letter of appeal (from over one year ago) and says it provides grounds to revise/supersede a revised decision (of April or July 2005) to re-instate benefit. Presumably this is 'error of law' grounds
two things to do
- request (proper) written explanation of decision, including grounds for revision/supersession
- speak to superviser of section and try to get explanation of why their interpretation of the law in this case keeps on changing. Ask them to justify looking at the case again when there's no new evidence or change of circs

I've just looked at the Commisioners' site and there's no categorisation for PC cases ... I doubt very much if there is any caselaw yet on AIPs --

It's up to them to show grounds for interfering with the existing award

alban

Thanks all - have taken another look at legislation and SI2002/1792 reg 15 5 (i) does state that 'any payment of rent made to a claiment who - owns the freehold or leashold interest in any property' is prescribed income.

My question now is: as this rent is income from capital (presumably!) and capital obtained during an AIP is ignored, would this be a fair argument to use against this decision?

Well reg 15 (5) is in three parts, so I don't think it applies to your client

"any payment of rent made to a claimant who -
(i) owns the freehold or leashold interest in any property or is a tenant of any property;
(ii) occupies part of that property; and
(iii) has an agreemment with another person allowing that person to occupy that property on payment of rent"

we're back to looking at what "retirement provision" means in relation to AIPs -- it's defined in Sect 7(6) of the State Pension Credit Act
"For the purposes of this Act 'retirement provision' means income of any of the following descriptions
(a) retirement pension income, other than benefit under the Cont& Benefits Act
(b) income from annuity contracts (other than retirement pension income)
(c) income from capital"

How else can you classify the rent received, other than income from capital? The definition above should include actual income as well as assumed income. Speak to the Pension Service and try to get a properly reasoned explanation from them.

alban

15(5) is referring to sub-tenants.

Since when has *actual* income from capital ever had any effect on PC?

Loopholes in the law have nothing to do with it - whether the DM likes it or not, that is the law - strange as it may seem to some - the property is a capital asset -
.............I'm only surprised that they actually found the paperwork

The DM must have grounds to revise/supersede, and as above "loophole in the law" has nothing to do with it.

An error of law might, but thats not what he is saying.

I understand calls to the pension service are recorded, so I would make this a matter of an official complaint, and get your MP to refer it to tha Parliamentary Ombudsman if necessary.

Officials must act in accoradance with the law. They dont have the power yet to make the law up as they go along