Income support claim when client is on deeds for ex-partner’s home

Yes, just because she has a legal interest in the property it doesn’t necessarily follow that she has a beneficial interest in it.

She will get a further enquiry from the DWP anyway after she has made the claim, and they won’t pay until they work out if she has a claim on any equity in the property. This is a complex area and she may need to see a family lawyer for a fixed fee interview (no legal aid for this type of enquiry now).

If she is, or was, married I think the starting point would be that she has at least 50% claim on the equity (please bear in mind I am not a family lawyer though!), whether she contributed to the mortgage or not. If they were not married then I think it’s all up for grabs, depends on what she contributed, if they had kids and she looked after them before school etc.

Did she ever reach an agreement concerning the property with her ex as part of a divorce, or otherwise?

She would need a current valuation (perhaps from 3 different agents). Then deduct 10% for costs of sale and take off the outstanding mortgage, if any. The resulting equity is the issue, and what the parties share of it is.

Sometimes you can argue that the value is nil - if she cannot sell without partner’s consent and there are dependent kids living there, or if ex is disabled - this is because you could say if partner does not agree to sale she would have to go to court and a judge is unlikely to order a sale in those circumstances.

It’s all abit of a minefield I am afraid, but a fixed fee interview with a family lawyer would be well worth it, even though I appreciate she is probably strapped for cash right now.

PCLC - 14 February 2014 01:48 PM

Sometimes you can argue that the value is nil - if she cannot sell without partner’s consent and there are dependent kids living there, or if ex is disabled - this is because you could say if partner does not agree to sale she would have to go to court and a judge is unlikely to order a sale in those circumstances.

 

If ex partner and dependant kids are living there it should be disregarded. Certainly if a disabled family member was living there so presumably that would extend to the ex then, too, it would be disregarded.

Authoritative guidance for unmarried couples attached.  Stack v Dowden is an extremely important decision as it cites all the leading cases on the issue and brings the law smack bang into the 21st century.

Full decision here.

To answer the question, there is nothing stopping the claimant making a claim for Income Support - the DWP do have a duty to investigate the claim and make a decision. If you opt for this strategy, it may be worthwhile to ask for a senior/specialist decision maker with specialism in capital and equitable estoppel to assess the claim. You should of course send everything possible to help establish the beneficial ownership. 

These types of cases are strange in the sense, you are trying to often prove little equitable interest and little beneficial ownership to fall below the capital thresholds.  Some family solicitors instinctively seek to get the most value as possible - however, in a case like this the opposite maybe the best solution.  All depends on facts.