Disregarded capital & HB

Is the claimant estranged?  If so, I agree that the property isn’t automatically disregarded under para 4 of Sch 6.  It’s also assumed no steps are being taken to sell the property.  If there is no estrangement between the claimant and ex-partner, the disregard still applies - sub-para (b) of para 4.

If para 4 cannot apply, that still leaves open the argument as to the valuation.  As many posts by other posters have explained, with case law cited, the valuation must be of the share, not of the whole.  As the premises are still occupied, it’s quite likely the clmt’s share is worth less than the face value 50%.  Some will argue it should be “nil” but, in my view, that is a selective approach only relevant in a small number of cases.

Also, is there any “encumbrance” on the property (e.g. outstanding mortgage / secured loan)?  The valuation should be:

-  the value of the clmt’s share;
LESS 10%;
LESS any encumbrance.

On what basis has the LA valued the clmt’s share of the property?  Can your client obtain other valuations independently? 

Hopefully the above at least starts the ball rolling.

Hi Kevin

Thanks for that.

Unbelievably my council have said “as we do not know the value of the property we have used £16,001 as a capital figure this means you are not entitled to any ......... ect”

Looking at the Reg mentioned above (Sch 6 para 4a) and with him being over Pension Credit age I kind of hoped it would be ignored in a similar way to lone parents, but they say no.

My next route was the not estraged one and / or the actual value one, but thought I would check the easier over PC age first.

No dependant children?

I think my appeal would include a ground to the effect of:

-  the Council has not undertaken any credible steps to determine a value to the premises; nor has it demonstrated any credible method of valuation; nor does has its decision makers demonstrated any appropriate knowledge in order to reach a valuation.  In turn, it is submitted that no weight can be attached to the authority’s purported calculation of capital.

In support of the above, I’d be getting independent valuations strongly emphasising any reduction in value caused by the tenant in situ.

On the specific issue of para (4)(a), it only applies to a partner or relative.  In this case, the pair have presented themselves as not being a couple and the definition of partner is that a person is a member of a couple (HBR 2).  The term “relative” also doesn’t cover the situation, even if they are still married.

Thanks Gareth, No children in household/s.

Kevin you have confirmed what I thought about partner and over PC age not applying, the not estranged route in Reg 4b is a hard one to show as she is now claiming as single but worth a go as they are still on good terms, as is an appeal on the other capital value grounds ect.

I have also mentioned to her about taking reasonabl steps to sell it to get it ignored again

I think the “not estranged “route is most likely a non starter. There have been a number of Commissioners decisions where it has been held that the parties are estranged despite maintaining relatively amicable or cordial relations.

In CPC/0683/2007 Mr. Commissioner Jacobs as he then was dismissed an appeal by a claimant who had argued that he was not estranged from his former wife he continued to perform odd jobs and provide transport for her.  Similarly in CH/3777/2007 Mr. Commissioner Howell allowed an appeal by the Council against a decision of the Tribunal which had allowed the claimants appeal on the basis of her argument that she was not estranged from her former partner because she maintained amicable relations with her husband with whom she no longer lived in the same household.  The Commissioner held at paragraph 9

“Nor do I accept the argument that “estranged” requires an element of disharmony because otherwise it adds nothing to the reference to a “former partner” in paragraphs 4(b) and 25.  ………”

I would personally go down the route of challenging the valuation of the capital asset. I would rely on R(JSA)1/02, CH/1953/2003 and R(IS)1/03.

It was held in R(IS)1/03 that the potential right to take proceedings under the matrimonial causes act to secure a property adjustment order is not a capital asset

Hi Stainsby - you wouldn’t have a link to CH/1953/2003 you could send have you? And/or a copy of CIS/191/1994? Hunted for these and can’t find them on Rightsnet. I’ve got a i-b JSA refusal where the partner (not married) moved out, partly because they needed a break from the relationship and also to care for her father (this ended up lasting 18 months until he died). She intended to move back but partner had started a new relationship. She delayed taking any legal steps for 10 months because she hoped for a reconciliation and also because her daughtyer still lives there. Her claim was refused from the outset, took 10 months to get to appeal which she won, but the decision was too vague so JC+ are challenging (the decision stated capital below £16,000 but no actual valuation). Hoping to get JC+ to decide her share is less than £6,000 given the fact that husband will not sell, wants to buy her out and is trying to get a mortgage for this, and her daughter still lives there. JC+ initially valued her share at £18,000 but I’m assuming this has been a back of fag packet claculation and not taken into account any of the other circumstances (I only saw her yesterday). If we don’t get the valuation reduced to at least an agreed figure below £16,000 I’m struggling to see how we can convince them that she took reasonable steps to realise her share until recently. I’ve advised her to make a new claim now that she has taken legal steps to get her share.

Here is CH/1953/2003

May be raising an old chestnut here, but how do you get a valuation on such a capital interest? 

If we can get a tribunal to agree that a property could not be sold for the next ten years or more, and the interest is £50 000 at present, who could guess how much that would be worth on the open market?