HB capital issues and ‘Jones v Kernott’

Just on the res judicata point: I had an HB case where the cl had previously lost an appeal at tribunal due to excess capital. They reapplied a couple of years later and were turned down again for a similar reason. On appeal, the new tribunal decided that res judicata meant they couldn’t make a ‘different determination of the same issues’ that the earlier tribunal has considered. We successfully got this set aside, citing CIS/2540/2004 and CIS/1213/2011, and arguing that fresh findings of fact could be made.

Jones v Kernott, like Stack v Dowden which it followed, concerns the position with regard to unmarried couples.  The position with married couples was always more complicated due to the special place of marriage historically within society.  So, you will need to look at the wider case law. I haven’t read the cases for a while but they do throw over decades of pretty much settled case law on the subject.  The advantage of the earlier cases is that they lent themselves to relative simplicity in calculating equitable interests.  That is not so now. 

These kinds of cases do have relevance for Social Security law.  However, the problem will be that it can hardly be expected of decision makers to undertake the kind of forensic analysis undertaken by the specialist courts in all but the more simple cases.  But, that is not to say that they can just ignore the issues in their entirety.  If you are going to use these arguments you will have to do your homework and put a lot of work into evidence gathering.  The assistance of a decent solicitor will help.  One way to proceed if an appeal is in the offing is to get it stayed pending the outcome of the court case, presuming there is one of course.  I’ve attached the two decisions plus a useful summary of the issues following Stack v Dowden.