We have a client who gave £14000 to his son in 2002. Pension service are counting this as notional capital and as a result say he is not entitled to Pension Credit. We note in cpag handbook that there may be some argument that he cannot have deprived himself of capital in order to claim Pension Credit because Pension Credit didnt exist at the time he gave the money away. Has anyone used this argument and what was the result?

Lynn, The Benefits Shop Dudley

Excellent! Lol!

See the annotations to Reg 51 of the IS Gen Regs (p415 of the current legislative volume). This same argument was tested when the Income Support regime replaced the Supp Ben regime. In R(IS) 14/93 the Commissioner held that a provision of a statute has no legal existence until it comes into force. So when the claimant divested himself of capital in 1987 he could not have done it with the intention of obtaining Income Support because at that time it did not exist.

Not aware of any other cases but will be interested to know the outcome should your client advance this argument.

Regards
Paul

Haven't done one of these since PC came into being but have successfully fought decisions on appeal previously. It is not up to the claimant to prove they did not wilfully deprive themselves of capital in order to gain benefit, the onus is on the DWP to prove he deprivation was intentional and specifically to gain benefit - something they can rarely do in my experience.

If the disposal was several years ago, the passing of time should erode the chances of a deprivation finding, as confirmed by long standing case law. Established deprivation case law also says you can't break the rules if you don't know them - but how could the client at the time know the rules , if they did not even exist at the time? I imagine that the DWP will say that effectively, the same rules applied then and now, and that PC is simpy a development of IS etc.

Isn't it best to assume you have the burden of proof? You can still assert to the tribunal who really has it. I seem to remember there was a decision recently where the commissioner commented that the question of who has the burden of proof, is of marginal importance.

Steve

The test is relatively straight forward - did he deprive himself of capital with the express intention of obtaining benefit? More to the point, did he, with suprising fore-thought, say to himself "I think I might claim a benefit at some time in the distant future, and therefore I'll give away £14000, (as you do) in order to ensure I will qualify"

When you reduce the whole thing to that level, it does bring into focus the logic (or otherwise) of the Pension Service decision.

I take it they had'nt even thought about the diminishing capital rule - £14000 over a couple of years seems reasonable to me.

Just to say that this client has returned to us to say that pension credit has now been awarded. They seem to have accepted the argument that he could not have given the money away in order to claim PC because it was given to his son before PC existed.

I have replied to another thread about this. I won a tribunal last year using exactly this point. The Pension Service were not happy but did not appeal to the Commissioners.

I di have to put in a full written argument. I suspect if you do not put in a fully argued submission on the point you may well lose.