I have a client who may have land and a hotel in progress of being built in Ghana. If the land etc is in joint names i.e. cl, son and sister can the land count as deemed income if they are not willing to sell or buy him out.

Any caselaw on how to value land in such a case for PC when cl can provide no evidence

Cl previously described situation as above but now says actually there is no land or property - he has simply been paying money into sisters account to move towards buying land. He has no proof that he has or has not got land but Pension Service have decided on the balance of probabilities that he has got land. Apart from problems with his credibilty is anyone aware of any decisions that would support the Pension Service relying on his latter statement despite no evidence though of course difficult to produce evidence for something that does not exist.

Thanks

If they decide that he doesn't have the land, they will presumably decide that he does still have the cash. Would that be better or worse?

He has said that the bank account is in his sisters name so technically it is her money and also says has no access to statements plus most recently that the money has disappeared - anyway from the information that he has given it doesn't sound that he would have accumulated more than £6000

If he has paid his own money into an account on the understanding that it is to be used for his own benefit in some way (i.e. he has not gifted the money to his sister), he would retain a beneficial interest - I would say that the money in the account is not his sister's alone - if they have both contributed to the account, they will have a joint beneficial interest in it, and he will be treated as having 50% share under reg 23 of the SPC Regs. Whether there is anything relating to the law of the other country where the funds are/were held that affects this I don't know. If there is a prohibition in that country against transfer of funds to the UK, the value is the amount a willing buyer in the UK would pay for the share (likely to be minimal) less 10% if expenses of sale. If the money has gone, and he didn't have anything to do with its disposal, I can't see the Pensions Service taking anything into account

(Brian)

Is building and then running the hotel (or just building it to sell to someone else to run) his 'business' which he continues to work in, if it is then the value of the land might be diseregarded as a business assett untill such time as he is no longer engaged in that business.

I think the problem is going to be dealing with a case where you are getting conflicting information from the client about what he has, or might have, got. It isn't easy to know what to believe from your first posting about someone who only thinks he might own some land. Yes, I know there are probably good reasons for his uncertainty, but you have to admit his story so far seems to be as slippery as an eel.
Whatever the truth of the matter, I can just see DWP deciding that he must have the land or its proceeds of sale because why else would he ever have thought he owned it?
Are you any nearer deciding in your own mind what you believe or at least think most likely? Is the story now being consistent and ahve the inconsistencies been explained in a way that you can accept?

I have now seen the client for the first time. He is adamant that he has only sent one payment to his sister of aprox £1000 with the intention that she should buy him land - she then spent the money on other things.

The building of a hotel etc was simply a pipe dream and he says that the visiting officer misinterpreted what he was saying and then wrote the wrong information on the various forms which he did not then check. When he was revisited, he then appeared to contradict what he had previously said although in his mind he was simply correcting a complete fabrication on the part of the visiting officer.

I tend to believe him, he is a talkative man with quite a strong accent - I do not think that it is beyond possibiity that the visiting officer listened to a long rambling tale of what was in fact hopes and dreams and rather than specifically clarify what was real and what was not simply wrote down roughly what appeared to be the facts of the situation. He does visit Ghana occasionally and when he does he stays free of charge in a friend's hotel - this may have contributed to the confusion.

My feeling is that we should simply proceed to a tribunal and see if he is believed. He has agreed to bring in bank statements which if they do not show regular transfers for large amounts of money will back up his account.

The pensions service have asked that the tribunal:
- decides on the balance of probabilities whether he does own land/property in Ghana and
- whether, if he does, there can be a deemed income from the alledged property/land

In regard to the former I feel that his direct verbal account is credible or at least worth giving a go at tribunal and re the latter - I am not convinced that even if he is found to own land etc in Ghana how easy this would be to interpete as deemed income if he was unable to sell etc and because of the lack of any evidence.

I appreciate what you say about the DWP deciding against him on the grounds that there is no smoke without fire but I also think that if he was trying to defraud the DWP, he simply wouldn't have mentioned the land in the first place since it would be extremely unlikely that anything would have been found out if it is the case that it does exist - the complete lack of any firm evidence one way or another is half the problem at least in regard to how to/whether to calculate deemed income.

How do you think you would proceed

I'm not saying that I think "no smoke without fire" necessarily, but that is a line I can see DWP taking.

It wasn't clear form your earlier posts that his uncertainty arose from not knowing whether money sent to buy land had been so used. Was that the original story? I've no idea what land would cost there but £1000 doesn't seem very much for a hotel anywhere!

If you think he is believable then you should fight it. Would his sister verify what she did with the money?

He said previously that he had sent over several payments of aprox £1000 to fund the building of the hotel and now says that he has only sent one payment over in October which he asked his sister to buy land with and which she spent on other stuff - will try the sister and also now got hold of bank statements which should show any regular transfers of payment (or not )

It's the shifts in the story which they are likely to see as suspicious, I fear.

I suspect you may be right but will go with it - in person he does come across as a credible claimant despite the variations. As long as I can try and ensure that what he says in the tribunal matches my submission then will see what happens