i have a client aged 47 who has not claimed any means tested benefits for approx 1 year due to receiving £28.000.00 from the sale of the marital home.the client is an alcoholic who has spent all of the money.client did spend £4.000.00 to pay off a credit card bill but this is not a debt that he was required to pay by law.client now trying to claim income support(on basis of being incapable of work)and housing/council tax benefit but my theory is that both the dwp and la are going to state that the client has deliberately deprived himself of capital in order to become entitled to benefit.i would really appreciate any thoughts on this matter and any suggestions re:how client may be able to get money from elsewhere if we cannot successfully challenge any deprivation of capital decision?thanx for your time...

Sayo

I would attempt to argue (with particular evidence about the client and general expert opinion concerning pathology) that the drinking alcoholic, whether s/he knew about the capital rules or not, would be unable to control his/her compulsion to drink and would drink regardless of the potential consequences, whether s/he knew about them or not.

Therefore, it could not be a significant operative intention of the deprivation to qualify for benefit. It is the intention that matters. Mere knowledge of the fact of qualifying for benefit is not sufficient to ground deprivation.

Regards
Paul

cheers paul and if i'm reading what you've typed correctly you're saying that the clients drink problem will hold no sway over the dm when they decide wheteher the client has deprived himself of capital,or not as the case may very unlikely be?
In the cpag book(page 1029)it states that it boils down to whether a person would've spent the money on what they did regardless of what effect it would have on their benefit entitlement.in this case then if i can obtain medical evidence showing client is an alcoholic we could argue that the money would've been spent this way...
thanx again and if have any other ideas be appreciated.

Exactly

I cannot see the DWP not applying the deprivation rule as the above arguments will, usually, not have been put to them at the claim stage.

The annoying thing is that when the arguments and evidence are put to them they would probably not change the decision and the case would probably end up at tribunal. Happy hunting!

Paul

Sayo

Consider the following from CDLA/396/2004.

8. Although the tribunal undoubtedly did have to consider whether the claimant’s ability to control his intake of alcohol was impaired, I have come to the conclusion that the tribunal’s conclusion that the claimant had not substantially lost that ability cannot be sustained. In her submission on the earlier appeal, the Secretary of State’s representative submitted an expert medical opinion from Doctor David Dewis, which had been obtained in response to a direction by Mr Commissioner Henty in CDLA/2228/1999. Doctor Dewis is a Medical Policy Manager in the Medical Policy Group of the Department of Work and Pensions and a member of the Medical Council on Alcoholism. He expressed the view that alcohol and substance disorders are recognised mental health conditions, not merely arising as result of defective character, which are recognised mental health conditions in the DSM IV and ICD10 classifications. He continued:

“The question of whether a person with alcohol or drug abuse problems can control their intake by force of will-power is a complex issue. However, once a person has reached a state of being physically and psychologically dependent on a particular drug, a loss of ability to control the intake of that substance will be part of the overall clinical picture. Such a person may be able to resist taking a drink or drug if offered one on a particular occasion, but over any period of time (the length of which may vary between individuals) the ability to exercise this control will be lost. It is certainly not uncommon for someone with alcohol dependence to need to take a drink every few hours, despite the individual having an intense desire to stop. The affected person will be unable to exert strength of character over the situation, despite being able to show evidence of such character strengths in other situations. In addition, a state may also be reached when failure to take another drink or drug within a particular time period may lead to distressing psychological and physical withdrawal symptoms.”

Don't forget that, alcohol problem or not, the client would have had normal living expenses for the year. There is no requirement for him to live at IS levels during that time in order to avoid deprivation rules and people don't keep receipts or other proofs for general expenditure like food. has he any housing costs? Presumably they would easy to prove. You can sometimes justify quite a lot of expenditure just by adding up the normal living expenses that everyone has.

I agree with all of the above, but dont forget that the burden is on the DWP to show that your clients "significant operative purpose" in spending the money was in order to claim benefit.

Make sure all the ususal Commissioners decisions to that effect are in your submission (I would bet £20 that you do end up at a Tribunal, it is unlikely that a DM will even think of the burden of proof)), and then go onto the effects of alcoholism backed up by medical evidence if you can.... but dont be surprised if you cant get hold of medical evidence...its not in the NHS contract.

Another important factor is the timing of the claim. Did your client claim IS as soon as the capital fell below £8000? Or did they do nothing until they had no money left and then look for help. A person who purposely deprives themselves of capital usually claims at the earliest opportunity and doesn't needlessly deprive themselves of capital that will not prevent them getting IS.

Shona

blimey!!!loads of food for thought in your responses so many thanx to all.to answer your question first shona,the clients capital had reached £0.00 before he tried to claim is,hb+ctb,and the point you raised is a good one.elsewhere,had considered living expenses for period in question but only what is,hb+ctb client would've received during period so will explore possible other living expenses that may be able to be allowed.will also check commissioners decisions re:deprivation of capital to include in my appeal.finally,i'm not a betting man but even if i were i would not wager twenty pounds that the appeal i submit is successful when the dm has a ponder.
again,many thanx and i'll try to be of assistance on day...

I don't want to pour cold water on your appeal Sayo but there's an understandable 'quest for an alternative purpose' in all of these cases. "He had to pay his mate £4000 so it wasn't to get benefit at all." The trouble is that someone can have _a_ reason to do something, but also have an eye open to the benefit rules. In other words, there can be two significant operative purposes at once (para 22 R(SB) 38/85).

That's why the point of new claim is a very important fact. Your client spent the lot. In a recent case I had the DWP only produced bank statements showing the capital reaching £8000 when two weeks later the client had an overdraft, so I produced those statements.

It really annoyed me that the chairman didn't really find that interesting, and I must say that in every case I've ever had like this the chairman has homed in on something I just hadn't thought about and certainly hadn't shouted about, supportive or not. (I can't see any Commissioner's Decision which addresses the point of claiming, so maybe chairmen just think it can't matter)

I don't just think that means I never prepare these cases properly (although it probably does) - I've had several adjourned for chairman A's directions about matter z which I had never thought of, and about which the chairman looks at me witheringly as if to say 'thought you were a rep and you didn't think of _that_', only for chairman B to pipe up 'well Mr Fisher had you addressed y we could have made simple progress with this case'.


Sorry I'm rambling here but my point is don't pin your colours to a single mast and try to cover all the angles and think of all weak points and plug them as best as you can. Which is all very well to say when you want to write a succinct submission that will actually be read and acted upon, but there you are.

What if the decision is that the client still has actual capital?

my thoughts exactly.if client is deemed to still have the capital are there any ways to get him an income of any kind?answers on a postcard to the usual address and thanx again...

Again I would argue that when an alcoholic has been without any income for a year and they say they have spent £28k on normal living expenses and alcohol then on the balance of probabilities that would be correct.

.....only if you were the chairman though......

think i've got angles covered now and when write appeal will use some of the ideas that have been sent my way.have a good weekend all and cheers...

well blow me!client awarded is and hb/ctb without having to appeal.thanx for all responses...

Glad you did not take me up on my £20 bet!!!!!

Well b****r me! And I fully expected it to go all the way to tribunal.

Just shows exactly how much I know!

Nice one!
Paul

It was clearly down to the sterling quality of Sayo's advocacy in this case. Talking of sterling, I write glowing references for people in exchange for a financial consideration ...

Jim

as you could tell by my last entry i was as equally surprised as you lot by the decision(s)...just goes to show!anyway,will try to be of help to the rightsnet posse in the future so until the next time chaps and chapettes...peace!