Hi all

We've a client who suffered brain injury in a RTA. A PI trust has been set up for the damages awarded. A house was purchased out of the trust fund for himself, his mum who was his carer, her partner and our client's (dependant)siblings. He's now decided to move out and has got rented property with his sister who is now his carer.

He's now no entitlement to IS or HB/CTB on the rented property because of this capital.

Is there anything we can do?

Nothing that I can see. I'm assuming that he's not taking steps to dispose of the former home purchased out of the trust and also that that DWP's and LA's assessment of the home's value is correct, or you'd have said otherwise. Presumably the deeds to the property are in his name soley, so there's no possibility of an argument that he could not realise its value?

I've been having a think. I know nowt about trusts - is it possible to put the property (which was purchased from the trust fund) back into the trust so it's ignored for benefit purposes?

Would this be accepted by the Court of Protection (and by saying that I don't even know what I mean!)

Our posts crossed in cyberspace past caring.

I have no idea of the reasons for refusal apart from it's based on his financial interest in former property. I've not even had sight of the decision as they sent it to the client rather than his appointee so I've asked for full written reasons.

If it comes to hey lads hey then we'll have to advise him to realise his interest in it. As his mum and siblings live there though it's not going to be worth anything to any purchaser.

Where have I seen about the current value of the property (with his family living there) rather than the actual market value? Is there a CD I should remember?

If the funds held in trust are "derived" from personal injury compensation (Sch 10, para 12, of the IS regs) they are ignored - so putting the former home back into trust would do it.

Also, even as things stand, value of home is ignored (Sch 10, para 4) if mum is over 60. For current market value, agreed - see comments to reg 49 in volume II of the legislation.

Many thanks. I've got myself so involved with this one I couldn't see the wood for the trees

sue, i'd be inclined to refer this to others within your practice - assuming they are the ones who dealt with his claim - or to the people who DID deal with his claim.

if the property in his name was bought with funds out of the PI trust, surely the value still is a part of the PI trust?

you need to be looking at the trust deed...

and you with your benefits hat on need to be advising the PI people/trust people

The person (the receiver) who is dealing with it is on holiday and I go away myself in 2 days (yeees!) and I wanted to get something concrete. I'll have to be patient. At least we won't be out of time to appeal as I've asked for full reasons.

If the property is still subject to the terms of the trust then it's no different from buying an investment. If it represents capital paid out to him personally or to other beneficiaries of the trust, then it has at least at present ceased to be part of the trust fund and is just his, or partly his, depending who else may have a beneficial interest in the house itself. As it appears he does not have the mental capacity to manage his affairs I would be astonished if the property is NOT registered in the name either of trustees or of the receiver. But I agree; you need confirmation of what has been done - and why - from whoever dealt with the transaction.

FYI - still ongoing but thanks for all your past input. Claims for IS, IB and HB first made 28.09.2007 so now a mere 4 month delay.

IB(Y) eventually awarded last week. I'd asked for a recon of the IS decision 4 weeks ago based on fact the house is still part of trust and anyway his mum who still lives in the property is disabled. It seems they've simply ignored the latter.

The IS DM sent it to ACI yesterday. Don't know why she couldn't make a decision herself. Even LA has agreed to disregard the property and award HB.

If I hadn't got the management team involved I know I wouldn't even be in the postion where his IB had even been processed yet.

Yet another big sigh...I feel like Phil Mitchell with his constant exhilations

Phil Mitchell and the Constant Exhilations - What a band!!

lol

I've got visions of him fronting the band but whizzing round the room whilst slowly deflating