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By eck it’s a rare day i’m stumped…
Cl was living in Turkey, huband dies, cl gets halfway through dismantling life in Turkey and breaks down; medevaced back to UK and still very not well at all.
House sale in Turkey completes and the money is put into client’s bank account over there. It’s in BNP Fortis; the majority sharehlder for which is TEB the Turkish National Bank.
Correspondence to the bank fails to access the money; faxes, letters and emails fall on deaf ears. Letters to head office the same.
Letters to minority shareholders head office in Brussels fall on deaf ears. Enquiry to the European Commission yields “sorry it’s a Turkish bank; approach the Turkish banking authorities.”
JCP seem amenable to an argument that the money is lost; they’ve not yet closed a claim made in 2011… Never needed to argue lost capital before so any pointers would be appreciated.
Ta
i think i would argue that the claimant just doesn’t have any capital as she’s unable to access it.
alternatively, if she does still own the capital, it should be valued at the amount a ‘willing buyer’ would pay for it - i.e. v little or nothing.
sounds as though DWP might be willing to accept first argument. i can’t find any case law that’s exactly analagous but reported decision [2010] AACR 3 could be helpful (about valuation of assets following bankruptcy order ) -
Is this a problem accessing the account or has the money gone from the account?
It’s a problem accessing the account.
All attempts to contact the branch and head offices have been ignored. Of course they’re in English which might not be the best.
The only thing I could suggest would be “go to Turkey” which is impossible considering client’s state of health.
I had a similar issue a few years back (IB JSA appeal). Client had purchased and previously resided in property abroad which had ultimately been seized by a local bank when clients business failed. Client was unable to obtain any info from the bank to confirm staus of proceedings, etc, despite letters, emails and phone calls, and was unable to afford to fly to the country concerned to progress things in person. We had to go to appeal hearing but tribunal agreed that even if client had any stake in the current value of the property it was of negligible worth since he was unable to access it.
Have the bank responded at all or have they just completely blanked her?
I dont know if it matters but I think TEB is a susidiary of BNP Paribas, a big french bank, hence the BNP bit in the Fortis name (orignially Bank Nationale Paris).
The bank have completely blanked her, both at branch and head office level.
As to BNP Fortis’s providence; I give up… contradictory articles on Wiki. What I can say is that there was a long and sordid decline after the crach; made for interesting reading when I first picked this case up. It’s certainly not straightforward.
suffice to say I have written to them at BNP Paribas
Warandeberg 3
1000 Brussels
Belgium
a couple of times and got nowt.
By the looks of it TEB isn’t a subsidiary but a partner; certainly it bailed out Fortis during the slump in 2008.
Still no matter, the EU Commission have washed their hands of it.
Bump
This is now listed for hearing soon; I have spent all morning (again) looking for any caselaw about the valuation of cash assets and come up with nowt.
Last call for inspiration before I draft a submission beginning “somone on rightsnet told me…”
I would have thought the argument would be that it’s inaccessible to client and presume (as they’re claiming means tested benefits) they cannot afford to appoint a solicitor to take any further action, home or abroad and they lack the capacity to do this themselves..
If all is lost - As it’s in Lira and that’s well…. http://www.xe.com/currencycharts/?from=GBP&to=TRY
Maybe a reclaim….
A slightly random thought,(which I expect everyone has already considered)- presumably there is a will which leaves the gent’s estate to the partner or a grant of probate giving someone the right to administer the estate.
Would there be any mileage in getting this translated into Turkish, sending it to the bank and asking them to respond? There must be some part of Turkish law which allows someone to administer the estate of a deceased person, I can’t imagine that the bank just gets to keep the dosh!
I’m with the view that this is all around accessibility. Even if an up to date value can be attributed, the money is not immediately accessible and should not therefore count as capital. The lack of access is a question of fact and easily evidenced from the documentation as I understand it. Obviously the situation potentially changes as soon as responses start to be received.
Had a similar case some years back concerning Malta. A lot more complex as it involved explicitly following a money trail to establish that what was going on was not laundering. Ended up with a scenario where most of the money was attributed to the claimant to their detriment, but, there was this one element where we could show there was money in an account they could not access after 6 months exhaustive attempts to do so. A pyrrhic victory but nevertheless.
I rather think your submission should really begin “As you or one of your colleagues will have been reading on Rightsnet…” 😊
I doubt there was a will knowing the circumstances; also the property was bought using client’s money so she’s stuck with the beneficial interest whatever the value. It’s all down to the realisable value to my client.
Cheers though!
The Dept cannot just sit back and watch her struggle evidencing her capital. In Kerr, the HL held that both claimant and DWP must play their part in discovering the missing info (“a co-operative process of investigation” – para 62).
“The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it..”(para 63)
Lady Hale also made the following observation:
“In many cases, if there is a claim, the department can also discover whether or not the claimant has capital.” (para 65)
In your case Dan it seems DWP have not attempted to date to make any enquiries of the foreign bank, instead putting the onus on the claimant who has apparently done as best she can. In which case the DWP, clearly, would not have “done all they reasonably could” and would, therefore, run the risk of having the question of capital determined against them as per para 63 above. I’m not suggesting that the DWP is in an analogous position to its NI counterpart in Kerr where the missing info was relatively easily within its reach. The point is the DWP has to try.
I suspect if it did try there’d still be a good chance that the bank would refuse to disclose. In that sense the observation in para 65 above doesn’t really assist you. However, at that point, the 2nd rule in Kerr for allocating the burden of proof or “burden of collective ignorance” comes into play:
“This will not always be sufficient to decide who should bear the consequences of the collective ignorance of a matter which is material to the claim. It may be that everything which could have been done has been done but there are still things unknown. The conditions of entitlement must be met before the claim can be paid…. It may therefore become relevant to ask whether a particular matter relates to the conditions of entitlement or to an exception to those conditions..”(para 66) (my emphasis)
The HL held that the issue in Kerr to which the missing info related was “an exception” to the conditions of entitlement. Consequently, the DWP would have lost on this ground even if it had made reasonable efforts (the HL had earlier found it hadn’t made such efforts). So the question in the present case is whether the capital limit for IS is an exception to the conditions of entitlement or one of those conditions. Dan, you’d need to read the commentary to section 134 Contributions and Benefits Act 1992 in Volume 2 of the Legislation books. You’ll see that there’s a very good argument post Kerr that the capital limit is, luckily for you, an exception. Even before Kerr Judge Mesher in a separate case had departed from the Trib of Commrs in R(IS)26/95, finding that the capital limit was an exception and, therefore, the burden lay with the SSWP to show that the claimant’s capital exceeded the limit, but I can’t trace it at present. Kerr should be enough.
[ Edited: 6 Mar 2015 at 02:49 pm by Tom H ]Thanks Tom; I shall do that!
The problem though is that there are bank statements from the Turkish bank on the submission so I think an argument founded on Kerr is weak.