This is a very sad case and I would really appreciate any help.
Couple with adult severely disabled son have been caring for him at home for several years and made error in saving 'all' his benefits and never taking any money for board as they wanted to safeguard his future and save the money to get more suitable housing, even added own money to it. Moved home and, as receiver of his account, used some of the money to assist with the house purchase. Son moved to care home(NHS funded) while they moved. Overpayment because of capital discovered,IS stopped, overpayment being calculated. Clients accept they must repay 7 years IS and will use some of the remaining money to do so, but will still be over limit to reclaim. Need son to have qualifying benefit to gain grant for work needed to accomodate him at home. They feel in catch 22 situation. Cant aford for work to be done without grant. Cant have son home without work done. Need the money left to buy things for home and replace money they used - just made mistake of saving it in his name. How will the removal of the money in his account to pay towards home be treated? and how will removal of further money to help with move, be treated if they make new claim for IS? Money is/was in account in sons name with father as receiver. Mother is appointee for benefits.

Can't see a problem with spending the money on his housing needs, generally. This is a good reason other than securing entitlement to benefit so shouldn't lead to a notional capital decision.

I'm not sure about accepting the recoverability of the IS overpayment decision though. In so far as the capital arose as savings from claimants income, itself disregarded, when was disclosure required/ reasonably to be expected? Alternatively, the money was effectively held in trust by the parents. Might be worth at least exploring these issues on appeal.

Richard Atkinson

I was wondering that. It was his money and they were not free to use it themselves or for their own benefit: if they were receivers under the Court of Protection they could not usually touch the money without the court's express and specific consent. Assuming him to have been on benefits, he is the person who has been overpaid, not them. The case sounds to raise complex legal issues. There certainly will have been an obligation on them to hold the money in a type of trust for him.

It would be unfortunate if there has been confusion between their own money and his. If there is any possibility that this ahs ahppened legal advice from a solicitor specialising in trusts law is needed to work out what ahs happened. You may strike lucky and get a Chair at tribunal who knows some trusts law but I wouldn't bank on it: most cahirs are either litigators or family law background.

I presume that they were his appointees? There is probably no duty on them to disclose unless they were - I'm not sure about receivers, but certainly attorneys and just plain family members have very limited duties on them.

Sorry, missed your last line about appointee.

Thank you for the replies. I think I am out of my depth here as you have brought up complications I had not seen. Basically I saw clients last week when they came to see about reapplying for IS(on sons behalf) before applying for grant(also on sons behalf). Decision to stop IS because of capital had been made 8 weeks previous and overpayment amount yet to be assessed.
My question arose as I was worried that the spending of the money in the account prior, and since that decision, could be deemed to be deprivation and IS refused.
All the clients want is to be able to provide a suitable home for son and get him back. I will refer them to a specialist/solicitor in light of your answers.
Carole.