Help! Claimant unaware of partner’s bank account

I am dealing with a HB appeal where the claimant was unaware of a bank account her partner had containing over £25,000 over a period of 2012 to 2017.  The money had been paid as compensation around 2008 but was never put into a trust.  The partner claims that he was not advised correctly by his solicitor at the time and that it was his understanding that the money would not affect any benefits claim. I am not clear at the minute whether my client was completely oblivious of the account, or vaguely aware that there was an account containing compensation money which (she believed) was completely irrelevant to her claim.

I’m struggling to see any arguments here:  I can’t see the account as a trust, even a “bare trust”  as the money was always available to the partner.  He was her partner.  It did take them over the capital limits. There was no official error.  Following interview under caution they have now separated.  I do feel though that there are some injustices - (a) the money was a result of a very serious accident, and its purpuse was to compensate the partner, so it was only because of its not being properly put into a trust that it is considered available. (b) My client had either no idea at all, or the vaguest and incorrect idea, of the existence of the account.  The overpayment is not even being pursued against the partner, but against her as the claimant.  This can’t be the first time a claimant has been genuinely oblivious of a partner’s savings, or the first time compensation was not put into a proper trust, but I can’t find any helpful legislation or case law at all.  Any suggestions?

The problem in cases like this is that only one member of a couple personally “owns” the HB award in the claimant role.  The partner has no duty to disclose material facts and, accordingly, the partner cannot be a person from whom any HB overpayment is recoverable for failure to disclose.

If the partner actively misrepresented the facts, that would be a different matter.  Back in 2012 paper forms were more prevalent than they are now and it’s possible that something - a claim or a review in which the facts were misrepresented - was signed by both the claimant and partner.  The partner would then be in the scope of Reg 101 as a person from whom the overpayment is recoverable.

Otherwise:

- if the claimant was aware of the account and failed to disclose it, any overpayment would be recoverable from her
- if she was not aware, she did not fail to disclose anything and the overpayment is not the fault of anyone who is within the scope of the HB Regs (claimant, person to whom HB paid etc).  It is then recoverable from both the claimant and, if different, the person to whom it was paid.  Doesn’t get her off the hook unfortunately, but possibly ropes in an easier target as well as her, eg social landlord

The capital didn’t exceed the limit by a huge amount, so this might well be the sort of case where diminishing capital would make a difference to the overpayment.  Has the Council done that?  After the first £9,000 the overpayment week by week will reduce or possibly even end.  If there is no other capital apart from the £25,000, it is impossible for the overpayment to exceed £19,000 and it is more likely to be a little over £9,000.

Thanks, Pete, that’s really helpful.  At least a couple possible avenues to mitigate the situation