Capital

have a sofa surfer - who has come into over 16k during covid.

he does not dispute what appears to be a JSA overpayment (he was having trouble getting to the job centre during covid.)

but i want to double check - it is when the money becomes available to him (i.e. it’s in his bank) - that is the important date here right?
the overpayment will start from when the money hits his bank, i.e. is becomes available for him to spend?

the DWP appear to be using a date several years before this date (maybe when lawyers began to get involved with the inheritance) - and i want to be clear that when we make our counter calculation, i’m basing this on the correct date.

thanks

Possibly but not necessarily.

It is going to depend on what specifically went on with the inheritance.

ok, but if he cannot spend any of it, he does not have it - is this much true?

acknowledge that i do not have all the facts, and that he could have inherited a property which was subsequently sold, in which case the DWP have a point

but basing this just on a cash inheritance?

The position is broadly that the funds are taken into account once you obtain beneficial ownership of them or once you have accrued a ‘chose in action’ - i.e. a right to sue - in relation to them.

The big question in your case is why the funds don’t seem to have been paid to your client for “several years”.

Usually, the personal representatives do not need to pay out from the estate for the first year of the administration. After the end of the first year, the beneficiaries may have a claim if the personal representatives are or should be in a position to distribute the estate but have not done so.

So you will need at least some general understanding of what has actually gone on with the estate - whether there is some good reason that it was not distributed or whether the personal representatives were just sitting on their hands.

Just to add - conditionality/signing on was suspended during covid, so he shouldn’t have been overpaid on that basis.

Itr’s also possible that the value of the inheritance was different at different stages during the period.  It’s unlikely, for example, that the value of property awaiting probate would have been the same as the sale price later.

good morning

is there a rightsnet summery of the following case? -

SP v SSWP (2009) UKUT 255 (AAC) - (have searched and cannot find it)

i think this is what i’m looking at to get the value of a property disregarded while it is still being sold (funds yet to be realised)

I think it might be helpful if you were just to summarise the position in the case so someone here can address it specifically.

SP is a fairly bland case about the statutory disregard which applies to property you are taking steps to sell. See para 6, Sch 8 JSA Regs 1996 and elsewhere.

https://administrativeappeals.decisions.tribunals.gov.uk/Aspx/view.aspx?id=2808

But I don’t think that your client was doing any such thing. The property was in the estate right? And the estate was trying to sell the property. And if the estate was trying to sell the property, it was not yet in a position to distribute. So if the estate was not in a position to distribute, then your client did not have a direct financial interest in it and had no capital.

thanks Elliot, you’re probably right, i’m over complicating things

“
But I don’t think that your client was doing any such thing. The property was in the estate right? And the estate was trying to sell the property. And if the estate was trying to sell the property, it was not yet in a position to distribute. So if the estate was not in a position to distribute, then your client did not have a direct financial interest in it and had no capital.
“

this is the case - and the DWP are backdating the overpayment to when probate finished, and the client started to try and sell the property. so yes - no capital, for 2 years while the sale of the property went through ...

Sorry, you seem to be saying that:

1. Somebody died. There was someone administering the estate. At some point they released the house to your client as beneficiary. The DWP accept that there is no capital for any of this period.

2. The house (rather than proceeds) was transferred to your client. The DWP say that there was capital for this period due to your client’s ownership of a house (rather than cash).

3. Your client, rather than the estate, sold the house and now has the funds from it, so does in fact have capital.

If that is all right, then the only outstanding issue is whether the house ought to have been disregarded for the period he was trying to sell. This is going to turn on the steps he was taking to sell and whether it was reasonable to grant the disregard after the initial 6 months.

Broadly speaking, if your property is being marketed with estate agents at a market value, then its reasonable to apply the disregard. What more are you to do?

“
If that is all right, then the only outstanding issue is whether the house ought to have been disregarded for the period he was trying to sell. This is going to turn on the steps he was taking to sell and whether it was reasonable to grant the disregard after the initial 6 months.

Broadly speaking, if your property is being marketed with estate agents at a market value, then its reasonable to apply the disregard. What more are you to do?
“

this is right - and i’m putting together the MR to this end, and again thank you for the clarification