Help please!
If someone disposed of a property in 2004 by deed of gift, and has now moved out of the property into sheltered extra care accommodation; is the council correct to say that she cannot claim any HB for 5 years from the date of the deed of gift?
Do not know why she deeded the property then , or to whom at this stage, but she is now elderly and frail, and in need of more specialist accommodation. I can find nothing to support this '5 year rule', although her solicitor thinks it should be 3 years!
I thought the HB regs on deprivation of capital were based around motive for disposal in order to get more HB. I cannot conceive that someone who gifted her home in 2004 would know that 4 years later she would need to move into expensive sheltered accommodation which she could not afford without HB.

Any advice or pointing in the direction of something to quote to the council would be very welcome!

This vaguey recalls rules about disposals of proerty at an undervalue before bankruptcy and possibly for local authority help with care home fees (of which I know not a lot, so could be wrong).

I can't think of any reason why this should be a rule, though it's possibly some sort of distillation from an old CD where something was said like you could safely assume that if 5 years had elapsed since the gift the propsect of getting benefits was not in issue. You know how they do these things.

Aske them for chapter and verse. If it is just local practice, jump on them. If they come back with something more substantive, bring it back to this forum. I should be surprised, that's all.

reg 43 HB Gen Regs 87 does not specify any such timescales for the deprivation rules to apply in such circs. Indeed, in the case of a valuable property 5yrs would be very generous as the diminishing notional capital rules could keep a client off HB for many years beyond 5!!

You are right,as far as I can see that the issue in assessing and deciding on notional capital is related to the purpose of the disposal.

Ariadne cites principles which apply to care home fees (NA Assessment of Resources Regs 83 and CRAG guidance)....these do not apply unless in resiidential accommodation (or in some circs when receiving care at home).

I would also ask upon what legal basis the decision is made?

See R (Jones) v Caerphilly (1999) 32 HLR 82 QBD...also R (Tooley) v South Tyneside MBC (1997) COD 143 at 144 QBD

If for any reason I am wrong and the "5yr" rule exists(??!?)...then a way round it may be to show that the provision of the said accommodation is the only suitable means to meet an identified community care need, and - as such - the LA has a duty to arrange the same via an assessment under s47(1) NHS CCA 90...if the client cannot then afford such provision the LA may have a duty to fund the same under NAA48...this would still bring up the issue of deprivation (using LASSASSA means test), but the case law would seem to support the client.

Of course, in either scenario, the purpose of the gift is the essential and determining factor, and whilst I agree that (some 4yrs later) the purpose of the gift seems not to have been to entitle/increase HB, you will need to show this.

I think the Council are confusing the "former owner" rules with deprivation of capital. HB cannot be paid in respect of a dwelling which the claimant formerly owned if less than 5 years have elapsed since (s)he owned it (Reg 9((1)(h).)

Reg 9(1)(h) does not apply where the rented accommodation is not the dwelling that the claimant formerly owned.

The burden of proving deprivation of capital in any case rests on the LA and the case will need to be judged on the evidence not some arbitrary period of 5 years