i'm sorry Paul - i think i must be confusing everybody...i'm trying to work out plan B in case the Pensions Service insist on being obdurate and idiotic. Plan A is very simple...i have shown them grounds (error in law and mistake as to material fact) for revising the decision...they can do that, smartish, and everybody lives happily ever after...but i'm not sure they can be arst
i've seen the valuation docs now - valued in 04 at £95k from 03 and £100k from 04. Client's deemed share (by the valuer) was 50%. He's shown the deemed share for joint ownership (half the above figures) and the actual undivided share (common ownership) with the mysterious valuer's adjustment to £34,500 and £36,500. the D-m originally, i think, took the deemed share and divided it by 2 (less 10% sale costs) and when client appealed in 05, took the undivided share and divided it by 2 etc - seems a fairly puddled approach. No details of what they told the valuer, or evidence of market etc...and no regard to DMG 84258 (the SPC volume version of the para i quoted on the other thread - identical) which takes account of increased or decreased beneficial shares due to not paying to acquire the asset being valued.
also, there is a note on the appeal to the effect that the dates quoted by the claimant (re purchase date and leaving wife date) are different to the dates he told the VO - said purchase in 1967 and living there 20 years, so definitely has an interest. this is incorrect - he and wife lived there together for several years (n/k how long) but they were renting. i've confirmed the purchase date which is verified, and you'll know right to buy came in with Thatcher...
taking his capital down from £23k+ to £18k+ did not change his non-entitlement to guarantee credit - his income was still too much using either figures - but they lapsed his appeal, and re-appealing got overlooked...so client has never been to a tribunal with his dispute
somewhere along the way, not clear how this happened, his HB got reinstated in error...but the error was discovered some time later when he changed address...client got an up-rating notification, with appeal rights, spotted the tariff income thingies, and appealed...more than 1 letter of appeal.
Pension service decided this was an invalid appeal, he could not dispute the capital decision because it was more than 13 months after the original (revised) decision. The tribunal ruled it out, then ruled one in, because of special circs, then a week later struck it out...
may have returned it to PS saying treat as application for revision or client may have sent another letter asking for revision (why do you keep ignoring what i tell you...?) D-M refused to revise (reasons n/k) and advised client he has no right of appeal against a refusal to revise. (The tribunal of Commissioners said otherwise in R(IB)2/04.)
He had a HB appeal which he lost - Tribunal very sympathetic but HB regs bind them to the SoS's assessment of capital and income - so still no hearing of the crucial issues.
i don't think could be res judicata in any event - it has only ever been decided by a D-M, and i don't think they are saying that it is r.j.(not saying much at all at the mo) but i think they have up to now refused to change their decision because they took advice from ACI before making it, so 'it must be right'. in fact, the ACI advice covered 2 specific questions asked, told them Matrimonial Causes Act didn't apply, and disregard under para 4 didn't apply, and other than that was fairly abstract. i could bang my head...
anyway, i think there has been a breach of Art. 6, and i could get original (lapsed) appeal reinstated, if necessary...just hoping client hasn't lost his home too, by the time they make their minds up what they're doing and let me in on it...
(bet you wished you hadn't asked...) thanks for the above.
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