overpayment

client had monies paid into his account by his mothers estate; this money was to be shared equally with him and his brothers once the estate was wound up.He was the person responsible for winding up the estate the monies showed up in his account.Pension credit have decided that the overpayment is recoverable, I tried to explain that client only has access to 1/4 of the amount as his share and that he was not misrepresenting or withholding any information.

overpayment approx £18k but I am asking them to take his saving as being on 1/4 of this.

Was there a will?

Assuming there was no will and that the father is dead (and no outstanding creditors or unknown trusts, etc), then the deceased’s children share equally.  See s46 of the Administration of Estates Act 1925

cheers nevip, my client was responsible for all monies until the estate was settled, he had no choice but to have the money in his account.
He was the executor .

Just noticed that you’re in Scotland.  The Administration of Estates Act only applies to England and Wales.  The equivalent provisions in Scotland are s2 and s6 of the Succession (Scotland) Act 1964.

my client has received a citation to appear at court, we have mot made an appeal re the overpayment as yet.

What is he to do?

I am sorry I don’t know the specific rules for Scotland.

But here we would recommend he gets a Solicitor for the criminal proceedings.  Adjournments can be sought. A Criminal Solicitor with an inkling of social welfare knowledge should be able to deal with this. Legal Aid may also be available.

In the meantime, lodge an appeal without delay. 2 appeals necessary - (i) against entitlement withdrawal and (ii) against overpayment decision . Its best to get these in before the first criminal hearing as this gives grounds for any adjournment and illustrates that the claimant is challenging the decisions made against him.

See DM Guidance there is a section on probate, inheritance, the executors and when money is counted as belonging to the claimant.  I think it is in the capital disregards section.

Good luck with it all

Quite shocked it would be a court issue. What was the evidence of criminal wrong doing?

However, in terms of recoverability this comes down to all the stuff about legal versus beneficial ownership. In turn this could depend on what kind of account it was. If, for example, it was all put into an ISA then unfortunately the money belongs to the claimant only. If, on the other hand it was a current account then the whole thing comes down to beneficial/legal and shouldn’t be that hard to win as, as nevip has observed, the distribution of the money is a legal matter and presumably won’t be in dispute.

Re lodging appeal- has there been a MR outcome yet or are you still waiting on that?

You haven’t said how much capital there is or the period over which the alleged overpayment happened.  To achieve an SPC overpayment of £18,000 it must be a pretty large amount: even if he was on full GC and not entitled to a single penny of it, it would a couple of years with a minimum of c£70,000 capital to run up an 18 grand o/p.  Are those the kind of sums we are looking at here?

£53k. 
He is adamant the money was to be shared between him and his siblings, period of op from Feb 09 till October 06…
OP deductions have started at £42.47. weekly from State Pension.

his brother had alcohol problems and as such he wasn’t being given the money in a lump sum.

Have you looked at Assessed Income Periods. If client had an AIP, and still qualified for GPC factoring in his quarter share then the PS may have to disregard this capital.

I think its DMG Chapter 83 which covers AIP .

This may be quite wrong as I’m not familiar with Scottish procedure. 

As executor he perhaps should have opened an executor’s account & had the money paid into it - but unfortunately that’s not the position he’s now in.  There is presumably a will leaving the estate equally to the 4 siblings.  Can that not be used (& it will also appoint him as executor) to demonstrate the truth of what he has said?  As regards the brother with alcohol problem is the fact he was not to be given the lump sum stated in the will?  If so, his share is presumably in trust for him with the executor as trustee - again, the documents should demonstrate the position.  It may be more difficult if retention of the lump sum was simply a verbal agreement with the deceased.

You give an o/p period Oct. 06 to Feb. 09 - does that mean he had the whole amount for all 4 of them in his account all that time?  If so, why?  Surely it should have been distributed (except possibly to the alcoholic) as soon as the estate was wound up?

I am waiting on confirmation from his lawyer. This and letters from his brothers should help.

he became his mothers power of attorney after someone tried to con her out of money, the estate is not settled as there is a house up for sale.

Hi…i’m just wondering why the appeal/s haven’t been submitted yet?

simply because I have no received a reply to the mandatory reconsideration dated 20/5/14 and follow up email 2 weeks ago….