I have an appeal coming up soon against an adverse PC decision made on the basis of notional capital on a 75 year old lady who was forced to move out of the matrimonial home when her 78 year old husband was caught indulging in child porn on the net. PC have disregarded the value of the property for 26 weeks but now say that she can't have PC as she hasn't taken any steps to get half the value of the house. She has cancer and the stress of a divorce would probably kill her and he won't divorce her as he has Parkinsons and has probably now got cancer as well. I think I may have a loophole in that he is a spouse and incpacitated and may be classed as a close relative but I can't find a definition of this term anywhere. Any ideas?? Thanks

The value of the premises occupied wholly or partly by your partner or by a relative, if they are aged 60 or over, or incapacitated; or former partner if you are not estranged or divorced.

Is Regs, sch 10, paras 1,2,3 & 4

Thanks for that. Looks like she doesn't have a leg to stand on legally as she is still married and doesn't feel up to going through a divorce at her age. Am I flogging a dead horse here IYO?

Probablly but as i have'nt looked into it properly i'm happy to be corrected. Sorry!

It's PC Regs that count but there are identical to IS in this case - Sch.V, para.4(b), PC Regs.

Can't see a way round this directly as she is clearly estranged. (Nor is he a closde relative, defined in Reg.2, PC Regs). However there always valuation issues in these cases. Assuming she is a joint owner, what would she get for her deemed 50% share? Would she in practice be able to force a sale of the whole property or would the Court refuse to make an order in the circumstances? If she tried to sell just her share who in practice would buy if the husband won't? See the discussions of the IS rule in R(JSA)1/02 and R(IS)1/01, noted in Sweet & Maxwell, Vol II, pp416-8.

Richard Atkinson

If he has matrimonial home rights under sections 30-33 of the Family Law Act 1996 then he may apply to the court for an occupation order. The sale price with a sitting tenant maybe substantially reduced.

Check when the house was purchased. Dispositions of property after 1996 are subject, under the Land Registration Rules, to a declaration on the Land Registration forms by the joint legal owners as to whether they intend to take the equitable title as joint tenants or tenants in common.

If they take as joint tenants then they are each entitled to 50% of the proceeds of sale irrespective of the actual contributions of each.

If there is no documentary evidence of intention to take as joint tenants and no intention can be inferred from their conduct then each will be entitled to the percentage proportion of the proceeds of sale of their actual cash contributions. Except in a few rare cases, the courts consistently hold a presumption of tenancy in common unless there is clear evidence of intention to take as join tenants.

I think it possible the property could come within Sch 10 of IS Regs para 26 and be disregarded-

'Any premises where the claimant is taking reasonable steps to dispose of those premises for a period of 26 weeks... or such longer period as is reasonable in the circumstances of the case to enable him to dispose of those premises'. See CPAG page 994 and 2006 Social Security Legislation vol 2 page 627.

Your client could see a solicitor about the matter and this should mean she is 'taking steps'. It may be that she is advised that there is no way a court would make the husband sell. I which case the argument is then that this is an process that will take some time to be resolved and she is still taking 'steps' so the value of the property should be ignored for until she can obtain her interest in the property in the future.

You maybe need to put a new PC claim in when the client sees the solicitor and get a letter from the solicitor saying she has been there about the matter.

Further to my last reply, I meant to refer to the Pension Credit Regulations of course.

The relevant provision is Schedule V para 7 (page 1180 0f 2006 Social Security Legislation Vol 2).

It is the same wording anyway.