PeteD
Welfare Department Manager, Stephensons Solicitors, Leigh, Lancs
Member since 23rd Jan 2004
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RE: disposal of property for HB
Tue 18-Nov-08 11:59 AM |
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.
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