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Relationship breakdown
A couple currently receive Income Support. She claims Carer’s Allowance for looking after him. If she moves out as the relationship has broken down and ends her caring role, Carer’s Allowance ceases immediately but Income Support remains in payment with a carer premium for eight weeks. I hope I am right so far. Does this mean that she will not be able to claim UC (full service area) until the end of the Income Support award? If he is the payee then it is unlikely that she will see any of the Income Support during the eight week period. Any thoughts?
There is also a child who will be leaving with the mother so CTC will end. She will have to rent a property but jointly owns the current property. So we are looking at UC with a housing element and a child element. Her share of the market value of the property should be disregarded for six months. Then she will need to take legal steps to ‘dispose’ of her share of the property. Right so far? Any thoughts on whether the full six months disregard (or possibly longer) could expire then legal steps could be started at the end of the first six month period? Or, would legal steps need to be taken during the first six month disregard period?
if she jointly owns the legal title then to sell she needs the other owner to cooperate as well (i.e., he’s got to agree to sell). and assuming they are married, it will all be tied up in the family financial proceedings. if they’re not married, it goes on basic land/property law, whatever that is.
I imagine she’s consulting a family lawyer about all that side? if not, she should
bearing in mind that on that side of things its based on needs, and from what you say it sounds like her partner’s needs are as great as hers.
that being so, DWP SHOULD let that process proceed in line with the usual - but of course whether they will is another matter.
Value can be disregarded for 6 months (with possible extension if deemed reasonable) from when she first starts taking reasonable steps to dispose of her share in property. So if she has not yet started taking steps when relationship breakdown disregard expires then value will be taken into account until she starts taking such steps. If she starts taking steps before relationship breakdown disregard expires then disregards will overlap.
So Clt can maximise the disregards if she waits until as close to the end of relationship breakdown disregard before taking reasonable steps to dispose, but she will probably have to start taking steps before relationship breakdown disregard ends in order to avoid a gap between disregards.
Thanks for these replies. They are not married. I shall be pointing her towards legal advice as well. I took it that there were two distinct possible grounds for disregards. One because she has separated from her partner and two if she is taking reasonable steps to sell her share of the property (market valuation would be required by the DWP). Is this correct?
Any thoughts on the UC question? Will the IS prevent a claim for UC or could she claim UC and the IS would be recovered from the UC award?
She can claim UC. IS entitlement ends as soon as she claims UC, so should stop immediately. If it runs on, it will be treated as unearned income and deducted in full from UC award.
Value can be disregarded for 6 months (with possible extension if deemed reasonable) from when she first starts taking reasonable steps to dispose of her share in property. So if she has not yet started taking steps when relationship breakdown disregard expires then value will be taken into account until she starts taking such steps. If she starts taking steps before relationship breakdown disregard expires then disregards will overlap.
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see my previous reply - she’s a joint owner and can’t dispose of her interest without the house being sold altogether, and that means she can’t just unilaterally sell. no one would buy, due to the other legal owner still living in the property if he doesn’t want to sell.
She still has to show that she is trying to dispose of her interest - the DWP won’t just accept her word that no one would want to buy her share of the property. She’ll have to show that she has made reasonable efforts to try and find a buyer.
I believe that there may be a legal means by which one joint owner can force a sale of jointly owned property (I’d recommend getting actual legal advice on that).
Edit: Sorry Claire, just noticed that you are an actual legal adviser. Oops. I’m sure I have heard something about it being possible to force a sale in divorce proceedings. Don’t know whether it’s possible for an unmarried couple.
[ Edited: 17 Aug 2018 at 10:55 am by Philippa D ]There is a 26-week disregard that applies if you’ve left a former home due to relationship breakdown, she doesn’t need to show anything more initially.
The 26-week disregard for realising value of her share of property can start once intiial 26 week disregard expires.
See p.484 of CPAG 2018/19.
Thanks all. Most helpful.
She can claim UC. IS entitlement ends as soon as she claims UC, so should stop immediately. If it runs on, it will be treated as unearned income and deducted in full from UC award.
Yes - your client needs to ring up IS as soon as she claims UC and let them know she no longer wants it for that reason. Relying on the automated system to sort it out isn’t a good idea.
She still has to show that she is trying to dispose of her interest - the DWP won’t just accept her word that no one would want to buy her share of the property. She’ll have to show that she has made reasonable efforts to try and find a buyer.
I believe that there may be a legal means by which one joint owner can force a sale of jointly owned property (I’d recommend getting actual legal advice on that).
Edit: Sorry Claire, just noticed that you are an actual legal adviser. Oops. I’m sure I have heard something about it being possible to force a sale in divorce proceedings. Don’t know whether it’s possible for an unmarried couple.
it is, but since i’m not a land law person i dont’ know the ins and outs of it.
but in any event, there is a child (we don’t know if it’s a child of the co owner, and if it is, that is relevant also (needs, who needs what)
the client needs advice about the relationship breakdown, and advice about realising her interest in the property. it may be, for all we know, that she can get her soon to be ex out and live in it herself
there are so many potential issues here, but one thing is for certain - she cannot sell without other owner’s consent OR an order - and even with an order, the other owner can block the process for years…..(a man in my street is doing precisely that…....)
Edit: Sorry Claire, just noticed that you are an actual legal adviser.
I need to amend my info - i’d assumed i’d put that i’m a solicitor, and it has been pointed out to me that it doesn’t say that…
apologies if i sounded snippy in my original pre edit post -wasn’t intended
[ Edited: 17 Aug 2018 at 04:15 pm by ClairemHodgson ]
see my previous reply - she’s a joint owner and can’t dispose of her interest without the house being sold altogether, and that means she can’t just unilaterally sell. no one would buy, due to the other legal owner still living in the property if he doesn’t want to sell.
As Judge Jacobs is at constant pains to point out, her interest in the property likely has a value, even if the partner is unwilling or uncooperative with the sale.
See JM v Eastleigh Borough Council (HB) [2016] UKUT 464 AAC (On RightsNet here https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Valuing-of-interest-in-property-where-joint-owner-is-unwilling-to-sell )
Judge Jacobs appears convinced that there is a market for such interests and this appears increasingly the position in the F-t T as well.
Dear Mick,
With regards to the current IS entitlement, she would have to be the claimant, as she is the carer, and she can have payment of the benefit transferred to her own bank account. One assumes that the child who is accompanying her is aged over 5, and if under age 5, she can say on IS without a carer premium. If she chooses to claim Universal Credit instead, then the Income Support stops as previous people have indicated.
The value of the jointly owned property is disregarded for Income Support purposes – see Paragraph 4 Schedule 10 Income Support Regulations. If he is receiving a disability benefit at a rate that enables her to claim Carers Allowance, I think it can be fairly said that he is incapacitated.
As usual, it is more complicated for Universal Credit. The value of the joint property can be disregarded under Paragraph 2 Schedule 10 Universal Credit Regulations if he has limited capability for work and, of course, any PIP or DLA entitlement does not automatically mean that someone is classed as having a limited capability for work – I have claimed both benefits for people who are in employment. Alternatively, there is the 26-week disregard that other advisers have referred to, which can be extended under Regulation 48(2).
If Income Support continues to be paid after UC is claimed, then it gets really complicated, as the IS is an overpayment of benefit as it was not lawfully paid. It is not included in the list of unearned income in Regulation 66, which means it should be disregarded for UC calculation purposes. There would have to be an IS entitlement and overpayment decision, both of which the client can appeal against.
I hope that this is of help.
Regards
Chris
Dear Mick,
The value of the jointly owned property is disregarded for Income Support purposes – see Paragraph 4 Schedule 10 Income Support Regulations. If he is receiving a disability benefit at a rate that enables her to claim Carers Allowance, I think it can be fairly said that he is incapacitated.
I’m not so sure,
Para 4 provides
‘Any premises occupied in whole or in part –
(a) by a partner or relative of a single claimant or any member of the family as his home where the person has attained the qualifying age for state pension credit or is incapacitated;
(b) by the former partner of the claimant as his home, but this provision shall not apply where the former partner is a person from whom the claimant is estranged or divorced or with whom he had formed a civil partnership that has been dissolved.’
The OP’s scenario is in the context of the relationship breakdown, so I don’t think that 4a can assist, they would not longer be partners and would also not be a relative.
It is difficult to understand how they could show that that they were not estranged so as to be able to be able to benefit from 4b.
Commissioner Rowland’s in R(IS) 5/05, while not ruling out it as being impossible that there are separated but not estranged ex couples, decides that the “question will be whether the parties have ’ ceased to consider themselves to be a couple and not whether, despite that, they continue to maintain friendly relations.”
As usual, it is more complicated for Universal Credit. The value of the joint property can be disregarded under Paragraph 2 Schedule 10 Universal Credit Regulations if he has limited capability for work and, of course, any PIP or DLA entitlement does not automatically mean that someone is classed as having a limited capability for work – I have claimed both benefits for people who are in employment.
I don’t think that Para 2 Schedule 10 helps, it provides that
“2. Premises occupied by a close relative of a person as their home where that close relative has limited capability for work or has reached the qualifying age for state pension credit.”
Close relative is defined by the regulations as a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, stepparent, step-son, step-daughter, brother or sister and the partner of such a person.
I don’t think then that an ex partner would satisfy this one..
[ Edited: 17 Aug 2018 at 01:33 pm by Kieran Andreson ]If Income Support continues to be paid after UC is claimed, then it gets really complicated, as the IS is an overpayment of benefit as it was not lawfully paid. It is not included in the list of unearned income in Regulation 66, which means it should be disregarded for UC calculation purposes. There would have to be an IS entitlement and overpayment decision, both of which the client can appeal against.
Reg 10 of UC(TP) 14 allows UC to treat payments of existing legacy benefit (except TC and irJSA) as unearned income if paid during UC assessment period.
see my previous reply - she’s a joint owner and can’t dispose of her interest without the house being sold altogether, and that means she can’t just unilaterally sell. no one would buy, due to the other legal owner still living in the property if he doesn’t want to sell.
As Judge Jacobs is at constant pains to point out, her interest in the property likely has a value, even if the partner is unwilling or uncooperative with the sale.See JM v Eastleigh Borough Council (HB) [2016] UKUT 464 AAC (On RightsNet here https://www.rightsnet.org.uk/welfare-rights/caselaw/item/Valuing-of-interest-in-property-where-joint-owner-is-unwilling-to-sell )
Judge Jacobs appears convinced that there is a market for such interests and this appears increasingly the position in the F-t T as well.
have to say i find that wholly bizarre.
i suppose it is vaguely possible that some commercial buyer might be prepared to do that, but I should think it most unlikely
whilst i haven’t done conveyancing for many years now, i don’t think the position has changed that much - buyers (and their lenders more particularly) want vacant possession and no encumbrances on the title. someone living in the property refusing to sell their share is an encumbrance.
and if he was prepared to sell his share and then pay rent to live there, he’d not be able to (i’ve had clients caught by that, never mind the benefit cap)