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Top Income Support & Jobseeker's Allowance topic #5479

Subject: "Capital from Pension scheme" First topic | Last topic
Damian
                              

WRO(Health), Salford WRS
Member since
23rd May 2005

Capital from Pension scheme
Fri 11-Apr-08 03:01 PM

The claimant is very ill and is currently on IB topped up by IS. She can claim a sizable lump sum from a pension scheme (she is under 60). If instead of being paid to her the lump sum was paid into a discretionary trust fund of which she is the beneficiary would there be any potential problems with it being treated as notional capital?

  

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Replies to this topic
RE: Capital from Pension scheme, ariadne2, 11th Apr 2008, #1
RE: Capital from Pension scheme, Tony Bowman, 15th Apr 2008, #2

ariadne2
                              

Welfare lawyer and social policy collator, Basingstoke CAB
Member since
13th Mar 2007

RE: Capital from Pension scheme
Fri 11-Apr-08 05:51 PM

On what terms can she claim it? If she has an absolute right to claim it now - in other words, payment could not legally be refused - I think that notional capital issues could arise already, if she fails to apply for a payment which would necessarily be made on application. If however payments before basic pension age are at the trustees' discretion, then there is no immediate problem: this is specifically disregarded capital.

You say "a discretionary trust fund of which she is the beneficiary". It isn't strictly possible to have a discretionary trust with only one beneficiary. The trustees must hold the capital and income of the trust on trust for specific ascertainable beneficiaries, and are under a duty do use their discretion as to how they distribute that capital income during the trust period. Unless the terms of the lump sum have already been written in the form of a discretionary trust of which she is a beneficiary, I think it may be too late now. In essence the pension fund trustees would be paying it at her behest (a word you don't often get a chance to use), if she has a right to call for it. She would then be depriving herself of it.

You need advice on the terms of the pension scheme and any existing declarations of trust, to avoid making a possibly costly mistake.

  

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Tony Bowman
                              

Welfare Rights Advisor, Reading Community Welfare Rights Unit
Member since
25th Nov 2004

RE: Capital from Pension scheme
Tue 15-Apr-08 12:26 PM

Isn't the value of a pension scheme excluded from the notional income rules and disregarded as capital? If so, there cannot be any penalty for choosing not to take a lump same from it, even if it were immediately available...

Also, I agree that if she were to take a lump sum and then put it in trust (of which the sum of my knowledge is '0') where the claimant couldn't get it, it would probably then be deprivation. I suppose you could argue that you'd have to consider the 'significant operative purpose', but it does seem odd taking money from a fund designed to give a regular income, and putting into a (hopefully) disregarded fund to recieve irregular payments. I don't think I'd be encouraging such a move, even if deprivation to get benefit wasn't the main reasons - the risks are just too great.

  

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Top Income Support & Jobseeker's Allowance topic #5479First topic | Last topic