Deprivation of Capital
I represented a client at an ESA appeal today. He had an ESA claim beginning from June 2016 but this ended in November 2017 because he had failed to tell them about capital exceeding £16,000. This was money left to him by his late wife who passed away in Jan 2017. He was asked to repay £2,000+ and did so. But just days after the compliance interview at the end of November, he used pretty much all of the money to purchase his former marital home (this is a long story) and then reclaimed ESA. The DWP rejected his claim saying that the significant operative purpose of the house purchase was to obtain benefit entitlement.
I checked two discussion threads on this website, specifically about using capital to buy another asset - one a funeral plan (in the other benefit issues thread) and the other a home (in the benefits for older people thread). I am aware of the unfavourable case law (R(IS)13/94 etc) but tried to argue that it would be reasonable for him to buy his former marital home, particularly as he was staying in temporary council accommodation. The reason for the delay is due to cultural/family issues and a family dispute after his wife’s passing.
He showed me a bank statement prior to the hearing which confirmed an amount far exceeding £16,000 being in HIS account before she passed away and remaining there pretty much untouched until he bought the house. I didn’t submit this to the tribunal because for me, the issue of the amount of capital was never in dispute. Also, the DWP’s submission focused more on his intentions in buying the house which is why his NEW claim for ESA was rejected, rather than the circumstances surrounding the ending of his previous claim and overpayment.
Unfortunately the client referred to the bank statement being in my possession AFTER contradicting the evidence contained within it saying that he gave half the capital sum to her remaining family and HIS family pooled together to replenish it so he could buy the house. He then went on to contradict this again, putting his credibility into serious doubt. Yet, in the statement, the amount remains static with only minor credits or withdrawals.
He was unsuccessful which I’m not surprised at because he didn’t make for a good witness but I do have one niggle; I feel that the tribunal may have focused too much attention on the capital sum itself and what happened to it prior to buying the house and not so much on my client’s intentions at the actual time of buying the house and making the new claim for ESA which I tried to emphasise in my closing submission (knowing already that he had probably blown it). I guess I will need to wait and see what the SoR says and I know that credibility is a big issue but I wondered if I was on the right track.