I am now on my 4th case in the last 12 months where a husband/wife has died and left no written will. In every case, the surviving spouse has disbursed payments to other family members (as requested by the deceased) and has then had thier housing benefit suspended/cancelled because of "deliberate reduction of capital".

Only one council has accepted the word of the surviving spouse. All the others, including the one that has just occured, refuse point blank.

Does anyone know any way of dealing with this without several weeks of letters and enormous distress to the claiment concerned?

Belinda Belaire

CJSA/1395/02 concerns a moral argument raised regarding the sole beneficiary of a will disbursing payments to family members, 'to do the right thing' in accordance with grandmother's wishes - she had changed her will 5 years earlier 'out of spite, apparently with some regret at the end...

"Those circumstances raised a case for the claimant having disposed of capital, or at least some of it, for purposes which did not include securing entitlement to income-based JSA or increasing the amount. Commissioners have accepted (see in particular CIS/40/1989) the potential validity of such a case in similar circumstances. The appeal tribunal erred in law in not dealing expressly with that case."

it's quite a complicated case, and difficult to see how how the deprivation question could be resolved without fairly detailed questioning into the private family circumstances prevailing at the time. and the fact that the Appellant was not likely to be dependent on IS was considered a significant factor in determining the 'purpose' question.

a point blank refusal to consider the individual circumstances would be an error in law - moral obligation is a potentially valid argument to 'intentional deprivation, but its force will depend on many factors, indicating intimate details of the family circumstances will be needed for a favourable decision. i don't know an easy way round this, sorry.

jj

The starting point is the wording of the regulations. I believe that the obligation on the council is to show that the act of deprivation of capital was deliberate with the intention of bringing herself within the qualifying criteria to claim.

Many thanks for that, SJ. It should all come to a head shortly and I will let bothyou and JJ know the outcome.

Belinda

Just updating my CD references and stumbled across CH/1873/2005. While not concerning a surviving spouse case, the principles are potentially relevant with regard to the reason(s) for disposing of capital - at least in my opinion.

In CH/1873/2005, the clmt sold a house, moved into rented accom & distributed the proceeds of the sale to children / grandchildren.

The Commissioner applied the normal test as to whether there was "significant operative purpose" etc for disposing the capital (see para 10). However, he went on to say, quite clearly, that the purpose of giving capital away etc does not need to be the MAIN purpose - it is sufficient that it is only *a* significant factor (see para 12).

NB: Not sure this CD is widely available outside LAs - I'll happily mail it to Rightsnet net if someone can confirm an appropriate addy to send the CD to.

Regards

thanks to kevin .......here's the cd -

http://www.rightsnet.org.uk/pdfs/CH_1873_2005.doc

I dont think CH/1873/2005 establishes any new principles. The Commissioner simply applied the much older reported decisions R(SB)38/85 and R(SB)40/85 (available on rightsnet) to the facts of the case.

CH/1873/2005 is in the main very different to the kind of case where a person distributes the estate of someone who did not leave a will in acordance with what he or she genuinely belives were the deceased wishes.

Mr Deputy Commissioner Paines accepted at para 20 of CH/1873/2005 that the cccclaimant gave away £20k to his son with no significant operative purpose of claiming benefit because her genuinley believed that in doing so he was helping his son with his drug problem

The burden of proof in deprivation cases rests on the Authority. I would argue that if the claimant asserts that in disposing of the money (s)he was carrying out the wishes of the deceased, and is a credible witness, the balance will be heavily in the claimants favour

This sounds v-e-r-y interesting and I'd like to know more. I'll try and track it through the reference given but if I can't, I'll certainly get back to you.

Many thanks,
Belinda

R(SB)38/85, R(SB)40/85 and CH/1873/2005 are all available via the
cmmrs decisions on rightsnet area of swopshop.