Hi,

I would appreciate comments on how much of a hopeless case this is!

Client (pensioner) cares for and lives with adult learning disabled daughter, and is appointee.

Client has CTB overpayment due to undisclosed capital, which she has appealed. Client says the money isn’t all hers, some of it belongs to daughter.

All of income for mum and daughter are paid into one account in mum’s name. Approximately a third of the income is daughter’s. Capital is an accumulation of this income (benefits and pensions). Mum sees money as joint money and is used to run the household. Daughter has no concept of money, can’t recognise coins etc.

I’m considering trying to argue that mum is the legal, but not the beneficial owner of all of the capital. Daughter is beneficial owner of a third of the capital (because she has contributed a third). Then I think once I argue that beneficial ownership is shared reg 39 on capital jointly held applies.

Your collective wisdom would be much appreciated.

Jane

presumably the bank staements show that this is the case?

Hi,

Yes, daughters income is IB and DLA so clearly shown on statements with her NINO.

OK, so the principle of "resulting trusts" applies. If you transfer money or any other property into the name of somebody else it is presumed, unless there is evidence to the contrary, that you did not mean to make a gift of it to them. This could be disproved easily eg by showing that the person was your child who had just got married and you had given them the deposit for the house.
In this case the daughter cannot have had any intentions so there is no rebuttal of the presumption.
It seems to me perfectly reasonable for some of the money to be used as her contribution to household expenses so that fact that Mum is using it shouldn't be a problem.
That said, it is precisely this scenario which shows why DWP prefer nominees to have separate accounts for their own money and the person they get money for (the latter clearly labelled as a nominee account.
It should also be noted that whether Mum knows it or not she is under a finduciary obligation (like a trustee) only to use daughter's money for daughter's benefit. If she has been misusing it it doesn't prove that the money was rightfully hers to use.

Thank you very much for your comments. I'll see if I can get the LA to change their mind before going to tribunal.

I wish she had separate bank accounts too, would have saved her a lot of stress and me the time reading years of her bank statements. Still - it keeps us in work!

To me it is a case where there is joint beneficial interest in the monies in the account, so reg 39 would operate to treat your client as possessing a 50% share of the total current value.

I don't think that can be assumed. I would say they owned the beneficial interest as tenants in common in accordance with their respective contributions. There are also arguments that equitable tracing should be applied to decide whose money was used for what over the period, on the basis that a trustee is presumed to be honest before he is dishonest and to spend his own money before that of the beneficiary.
This assumes that money was actually being spent by the trustee on himself and not on the beneficiary. This is the rule in Re Hallett's Estate and is a good one for frightening poor tribunal judges who never "got" equity! But it might be going too far on these facts. I have only applied it in a case where there was no intention to mingle funds and both contributors tried to keep their finances separate. It didn't get appealed.

Fair comment - I thought that a simplistic 50% split assisted in this case and I would also worry that the onus would probably lie on the mother (trustee) to show whose money was used for what purpose, which may well be beyond most.

As a separate issue Ariadne, and with your greater knowledge in such areas, could you give me any pointers in a slightly different case I have here.

A mother, with a severely disabled adult daughter opened a bank account in joint names with her daughter into which have been paid -
1 - direct payments from the local authority for the daughter's care package (i.e. fully disregarded as daughter's income and capital); and
2 - payments from the local PCT, initially paid in one sum per annum but now on a monthly basis via Social Services at the same time as the direct payments. The payments from the PCT total about £39,000 per year

The payments from the PCT have not been identified as being paid under any particular legislation. Although the daughter was previously resident in a care home, paid for by the PCT, the payments to this account are not Continuing Health Care payments. However, it is likely that they are payments to the mother (and father) for the care of the daughter, rather than payments to the daughter for her own care (i.e. unlike the actual direct payments from Social Services).

If it is the case that the payments from the PCT are actually to the parents, and is "their" money, so to speak, how should the daughter's interest in the account (i.e. the direct payments) be viewed? Income support was stopped for the daughter because there was over £16,000 in the account, indeed over £32,000.

Thanks

Brian

Hard to know unless you can ascertain the nature of the payments and the intended recipient. Can't the PCT tell you what they are? Seems a pretty odd idea to pay out oodles of cash without clearly specifying who you're paying, why and out of what pot.
Surely with this huge amount of payment the family ought to know what it's meant for? I'm not saying they do - I'm saying it's incomprehensible that they haven't been told!
I have no personal knowledge of the different forms of community support, but their identity is essential to look for disregards and to know whose disregard.
Sorry to be unhelpful - I don't think there's any point in being theoretical in these circumstances.

The problem is that the PCT either can't, or more likely won't, tell anyone what the payments are, because it was a decision made in some haste a few years ago that no one seems to what to put their name to. The parents were simply told that the payments were for their daughter's care and they say they were told the money could be spent in any way they saw fit - of course, no one has put this in writing either.

I will keep on chasing the PCT

Thanks for your reply

Brian

I wouldn't say it's totally hopeless if all it comes down to is the question of 'whose' money it is rather than 'how much'.

It's not fair to penalise people because they are ignorant to consequences they could not have foreseen. Therefore, in similiar cases I've had, the key issue is not the legality of the situation as such (though of course there's relevance there) but making sure the tribunal understand the facts as they are.

Usually this means just getting the parties in front of the tribunal and allowing the tribunal to do thier job - which, in essence, is to establish the sincerity of the claimants word. Tribunals tend to be much more independent than DWP/LA decision-makers - as they should be of course - and are therefore much better placed to give fair and reasonable decisions.

With that in mind, I find it quite useful in this type of appeal to quote the well-established principle that "a claimants own word must be accepted unless it is self-contradictory or inherently improbable" (R(SB)33/85 and R(I)2/51). I often use that in revision applications too, seems to 'swing it' sometimes.

BEWARE of pushing the PCT for answers...that may result in the loss of whatever funding this is, especially if they have somehow found it from a "hidden" budget somewhere..

PCTs have been piloting certain forms of direct payments ("in Control" being the most obvious example)...is it such?

Basically, Direct Payments are NOT available via the PCT and Continuing Care funding cannot be paid thru Direct Paymentsd in any event....

I have had cases where funding in lieu of a successful complaint/compen has been spread out over years...but not to that tune!!

Seems very odd (as others say) that the money has been made available and paid.... but no-one knows why/where from/to whom...in any event, the crucial issue is of course proving what the funding represents, whether it is thereby disregarded, and - of course - who it is actually paid to.

Good Luck !