I have some queries about issues relating to my clients, a same sex couple who have been living together for many years. They've been separately claiming IB/IS with sdp's throughout.

After an anonymous tip off they've had a visitor from JCP and not yet admitted being a couple but have admitted capital assets by way of ISA's of under £6K and also a canal boat worth £25K. The boat is up for sale to fund adaptations to the property.

They've also admitted for the past few years they've been on holiday abroad once a year for 8 weeks.

Had decision that living together but no overpayment decision as yet.

They've not made a claim as couple.

They should have been claiming CA for looking after each other and had underlying entitlement and with it the 2 x cp's. If they claim now and the arrears of the cp's are paid this will result in an additional ovepayment. In any case if they consider the boat as a a capital asset it will mean they have no entitlement to IS.

I understand that as they'd been living together prior to Dec 2005 it seems the DWP or LA don't alter the claims until the first time the come to look at it after this date.

Can we expect this visit to be the first time they've looked at it after this date? If so is it best to advise them to claim as a couple now?

We will argue the clients weren't aware of the change and therefore the need to disclose.

Would the boat be seen as a personal possession or as a capital asset?

I don't really know what I'm asking here but have been mulling it over for a while and would love some input or a second opinion on the best way to proceed.

the answer is, effective december 2005 they were ltahaw and therefore ti should have been a joint IS claim from then.

the capital probably meant that they shoudn't have had IS

you won't get anywhere with ignorance of the law as a defence; esepcially ignorance of that one, i would have thought!!!!!! even if it were a defence, that one was very well publicised

this is only my opinion, of course.....

Not so sure...

Granted they were a couple from 12/05 so no basis for appealing the decision on current benefit. As to possible overpayments on cohab grounds, DWP will probably have to rely on failure to disclose, unless there have been any forms completed since 12/05 to found a misrepresentation decision, and they may have difficulty pointing to anything requiring these claimants to disclose the facts of their relationship. If they can't produce any such notice it comes back to whether disclosure reasonably to be expected and I imagine a case could be constructed on that. Ignorance can be a defence under Reg.32(1B), C+P Regs, absent a specific instruction to disclose.

Similarly with the boat. Canal boats are more like cars than landed property - for instance their price declines with time, like cars. 'Premises' is the term used in Sch.10 IS Regs and I doubt if a boat is premises, unless perhaps it is permanently moored somewhere. If its not premises it must be a personal possession, exempt under para.10. Worth a try I would have thought.

Richard Atkinson

Are they actually civil partners or is it a LTACP case?

If the latter then the publicity about civil partnerships may not be relevant and, in the absence of any misrepresentation, FTD would be unlikely.

YOu mentioned 2 SDPs - that of course shouldn't be paid if they are living in the same household anyway, even if their relationship is that of carers and nothing else; so on any account that at least is an OP.

Sorry - silly. Ignore me. They both qualify so that's OK.

I'm not convinced at all that the boat wil be disregarded as a personal possession. Smells more like a capital assett to me, depreciating or not. In CH 318 2005 Comm Joacobs held that a narrow boat without a permanent mooring is, or at least can be, a dwelling for HB purposes - obviously this doesn't really answer the question in full but I could see it being used by the DWP as supporting case law.

http://www.osscsc.gov.uk/judgmentfiles/j1819/CH%200318%202005-00.doc

I think we need more info on the boat, how/where is it moored, and how and when was it purchased? Do they take there 8 week holidays on the boat?

Canal boat -

1. is it classified as a dwelling/holiday home for the purposes of Council tax by the Local authority in the area where it is moored?
2. is it a permanent fixture or capable of moving under it's own steam so to speak?

Pending clarification of the above, my first inclination would be that it is akin to a motor home - parked up for most of the year - albeit on water - used occasionally - therefore one could well be arguing that it should be classified as a personal possession.

Of course it's a capital asset - the question is whether it can be disregarded under Sch.10. The disregards in Sch.10 for houses and the like are all (except para.1 - "dwelling") expressed in terms of "premises". I agree a canal boat can be a "dwelling"; I don't think it can be "premises", defined in Chambers as "a building and its adjuncts", at least unless it's permanently moored which would be most unusual. The logic of Sch.10 strongly implies that things that aren't premises are personal possessions and disregarded.

Caravans are a relevant comparison - one parked in your drive is clearly a personal possession, even though it is capable, at a pinch, of being a dwelling. If you own a site in a holiday park and the caravan on it, with permanent fittings, drainage etc, then its probably premises. Most canal boats will fit more happily into the first category I would suggest.

Richard Atkinson

Many thanks to all of you. I'll get more info about the boat and see what's what and come back to you.

As for their relationship they're LTACP.

Sorry if I've missed something, but re the SDP issue, didn't you say they were both receiving IB with IS top-up? In which case, leaving aside the capital issue, there'd be an entitlement to double SDP and double CP wouldn't there? If so, applicable amount when they were being paid seperately would have been jointly £265.70pw (single rate + DP + SDP x 2) whereas it is now £280.00 per week (including couple rate DP, SDP and 2x CP). In which case, there is an underpayment (if you apply offset rules) rather than an overpayment (think I've got the maths right, but it is Monday!)

I make it £160.00 each (or £320.0)if they are not a couple (single person +DP+SDP+CP) , but it is still Monday and I could be wrong!

I was basing it on what they were actually recieving as 2 single people (ie- without the CP). With the CP I make the total the same as you. However, it is definitely still Monday...

Yes you're right about them being better off if they each claimed u/e to CA whether it be singly or as a couple as it would mean more IS by way of cp. BUT no decision yet on whether they've been o/p IS because of LTACP or because of boat. So by them not claiming CA they'll have a less of an o/p if you get what I mean.

I'm loathe to tell them to claim at the moment as any cp will be backdated 3 months and so it would increase any IS o/p. However as any o/p should only be recovered up to the date JCP became aware of the boat and LTACP then any additional IS they get since then should then be ok.

So as you can see I'm still in a quandry. I want to be able to maximize their income but not at the expense of any backdated IS increasing any overpayment.

I can only advise them what they are entitled to and of the consequences of whatever they do really.

Yes- I can see the difficulty. It all hangs on the boat really, doesn't it? There has to be a pun there somewhere (probably involving creeks and paddles...)

The canal boat issue is probably now settled by Commissioner Jacobs in CH/3700/2006, available here:
http://www.osscsc.gov.uk/judgmentfiles/j2315/CH%203700%202006-00.doc

Capital can be realty (landed property), business assets or personal possessions, says the Commissioner. A caravan, placed on a rented site, with electricity and water conected, but movable, is a personal possession and hence disregarded, he says.

I think this must also apply to almost any kind of canal boat.

Richard Atkinson

Thank you Richard