I'm dealing with a client with long standing mental health problems. He has been separated from his wife for several years, was in hospital and residential accommodation for about the same time. They have no idea if they will ever get back together. He's just now gone into rented accommodation, on DLA and IB, has a pension, so doesn't get IS. He's over 60. His wife lives in the marital home (jointly owned, no mortgage). She's under 60 and in full-time work, but due to undergo hip replacement in next 3 months. HB and CTB have been turned down because of his share of marital home exceeds £16k. Any prospects of getting HB & CTB on grounds that I can't see???

The value of the share may be effectively worthless because he may not be legally able to force the sale of the property and so the value is not 50% of the market value of the property with vacant possession, but the value of a 50% equity share with a lifetime occupier as an incumbrance.

Have a look at R(JSA)1/02 and R(IS)1/03 where these issues were addressed by Commissioners

Also- presumably she'll be off sick from work when she has hip replacement- could argue then that she's 'incapacitated', in which case value of property disregarded.

In case like these both parties need to act. Irrespective of legal title, if he has a beneficial interest in the property he can, and will be expected to, put the house on the market. His share should then be ignored for 6 months (or longer if reasonable in the circumstances).

In order for her to enforce any right of occupation she may have under sections 30-32 of the Family Law Act 1996 against a potential buyer she needs to make an application to the court under section 33 for an occupation order. Expert evaluation may then be anywhere from zero to full market value depending if there is a likely buyer for a property with an existing life tenant.

Also, it is not enough for the decision maker to assume 50-50 shares in the property. Specific calculations need to be done as to how much each beneficial owner (and there may be more than 2) has put toward the purchase price, mortgage payments and (in other limited circumstances) contributed toward the upkeep or improvement of the property and their share weighed accordingly.

In R(JSA)1/02 the Commissioner made it clear that the valuation must be that of the deemed share in the property, not simply the percentage of open market value of the whole property. The LA should be made to produce evidence of a market in such investments in order to give a realistic figure for what a willing buyer would be prepared to pay. It may well be that the you could argue that the worth of such a risky investment is minimal

The Commissioner ruled in R(IS)1/03 that the potential right to secure orders under the Matrimonial Causes Act 1973 (to which the 1996 Family Law Act is to a large extent addressed) is not a capital asset.

I think there could be a lot of mileage in both decisions for your client

Thank you for this invaluable info. It has given a desperate family some hope.

Thanks again for the above info: the client was awarded CTB & HB last week, so it's taken some time (as usual) but we got there in the end.

Also explore the reasons he's never persued the property as part of a seperation settlement, or did he . If he did there will be legal documents to supprt his appeal. Are there mental health records that show he was/is not capable of pursuing he share and so on. All of which the LA should have checked but unlikely too have done so, as not likely to be on verification framework list. Given the history you give, even if there is no directed evidence i am sure his health carers should be enable to provide sufficient evidence to support his claim retrospectively.i.e I can't believe social services past up a chance too reduce their care bill. I am becomins synical