I wonder if anyone can help me with this one.

Client owned property with husband and prior to his death in 2001 they verbally agreed that property should be transferred to son so that he could control finances. Husband's will left estate to client.

Son bought house, but son was given proceeds of sale. Client stayed in house. Son then bought another property for cl's daughter to live in. Both client and daughter pay son rent.

Client subsequently awarded CTB. Claim ended as capital over £16k due to policy maturing.

Client then moves in late 2003 to warden controlled house, due to health conditions and previous property not being suitable. Client submits new HB/CTB application. Capital now below upper limit.

Claim is refused because council consider deprivation has occurred. They say there was no compulsion to transfer property to son and no reasons why money from sale was not kept by client. (also issues about certain money not accounted for, but these are main arguments)

In addition, client's former home (owned now by son) is up for sale and council state that reasonable to expect proceeds of sale to go to client.

They say client does know capital rules because of cancelling of CTB claim due to capital exceeding £16k.

Also state "the burden of proving that a claimant no longer has a resource rests with the claimant because it is down to the claimant to establish title to benefit."
I thought it was the other way round?

Can anyone offer me any pointers with this one? Thanks very much.

The burden of proof lise with the Council to show deprivation (see for example R(SB)9/91 para 8.)

The Council seem to be confusing the deprivation issue with that of whether or not the claimant still actually has the capital in question

In R(SB)38/85 the Commisioner held at para 18:

" Once it has been shown that a member of the assessment unit has recently received, or otherwise been the owner of, a capital resource (income resources are not in issue in the present appeal) the onus of proving, on a balance of probability, that he no longer has that resource rests on the claimant, since it is for him to establish title to supplementary benefit......
Failing a satisfactory account of the way in which the money has been disposed of, it will be open to the tribunal, and a natural conclusion, to find that the claimant still has, in some form or other, that resource and consequently to conclude that his actual resources are above the prescribed limit."

You need to question the Council very closely in order to get them to establish whether they have decided that your cleint has notional capital because they allege deprivation. (the burden of proof will be on them in that case) or whether they allege that she still has the actual capital.

LA letter states "it is considered that deprivation has occurred... Deprivation means that we treat the claimant as still possessing notional capital if it is felt that they have deprived themselves of that capital for the purpose of receiving or getting an increase in housing and or council tax benefit."

So it seems that they have decided that there is deprivation but confused the burden of proof issue.

LA letter states "it is considered that deprivation has occurred... Deprivation means that we treat the claimant as still possessing notional capital if it is felt that they have deprived themselves of that capital for the purpose of receiving or getting an increase in housing and or council tax benefit."

So it seems that they have decided that there is deprivation but confused the burden of proof issue.