I have a client who had to move out of the home she owned into a Housing Association bungalow due to no longer being able to manage in the house.

She owned the house with her son who remained in the property (the house). The son is long term sick with ME aged 45. He is in receipt of incapaticity benefit long term rate.

My client made a claim for Housing Benefit/ Council Tax Benefit but has been refused on the basis that she has capital over £16,000 and this is the vvalue of the house she no longer lives in.

My client challenged this decision on review,on the basis that the capital of the house should be disregarded as her son was incapacitated. The LA deceided that whilst teh son was in receipt of incapacity benefit this only deamed him unfit for work but he was not 'incapcitated'.

This is now subject to an appeal and the LA are arguing the following in their submission: 'The Tribunal is asked to confirm that this is against a point of law and therefore outside the Appeals Service's jurisdiction.'

I can only assume that they mean the point of law that someone with capital over £16,000 can not get Housing Benefit. They have not addressed the decision abpout the definition of 'incapacitated'.

Does any one have any information about the definition of incapacitated?

and am I missing something?

I would not claim to have any relevant medical knowledge....but therein lies a possible argument (subject to anyone pointing to a specific legal definition).

99% of Benefit Officers in LAs will have no relevant medical expertise. That leads to argument number 1. I'd respond to TAS vehemently pointing out that the LA are not medical practitioners and therefore are in no postion whatsoever to judge the incapacity or otherwise of a third party.

Secondly, I see no mention in HBR 2(1) (or elsewhere in this context) of a definition of "incapacitated". In the absence of such a definition, I'd strongly argue that the word bears its ordinary every day meaning (again, subject to anyone else unearthing something more useful).

Next, I'd respond to the LAs (very weak) argument distinguishing "incapacitated" from "unable to work" along the lines that your client is unable to work precisely because he is incapacitated.

In the absence of a provision (as far as I'm aware) defining "incapacitated" for the purpose of Sched 5, the LA's suggestion that this is a point of law is preposterous. There are several examples of clmts/household members being "designated" disabled by virtue of receiving specified benefits (e.g. Attendance Allowance giving rise to the Disability Premium and, in some cases, the Sev Dis Prem). Incapacity Benefit clearly indicates that your client is "incapacitated" (plain English) to at least some extent.

As someone who has had to deal with Chronic Fatigue Syndrome, I can vouch first hand that it can be severely debilitating and, dare I say, incapacitating (is that a word??).

Assuming the case is as it seems, I sincerely wish you the best of luck.

Regards

Try Reg. 21A(1)(c) and (4). Reg. 21 governs the treatment of childcare charges, and paragraph (1)(c) refers to couples where one partner is "incapacitated".

Paragraph (4) goes on to define "incapacitated":

the claimant's applicable amount includes a disability premium.....

the claimant is or is treated as incapable of work......for a continuous period of not less than 196 days

there is payable to him.....long-term incapacity benefit or short-term incapacity benefit at the higher rate etc etc......


Should not be a problem at all arguing that "incapable of work" equals "incapacitated".

Part IV of the Socia Security (Incapacity Benefit) Regulations 1994 is headed:

"Aditional Conditions for Persons Incpacitated in Youth"

S14 of those regulations refers back to S30A(1)(b) and 2A of the SSCBA

S30A of the SSCBA deals with entitlement to Incapacity Benefit

"Incapacitated" therefore must be taken to mean incapacity for work for the purposes of entitlement to incapacity benefit.

This will mean either the own occupation test, or the PCA if it applies.

I would say that it is clear in this case that the capital must be disregarded.

Weird! Something else to try might be to ask the LA what THEY think "incapacity" means. Response should be fascinating.

Agree with the other contributors' comments about the definition of incapacitated.

Just wanted to comment on the absurdity of the LA's submission. Tribunals' jurisdiction is to deal with both questions of law and fact, so how a point of law can be outside the tribunal's jurisdiction is beyond me.

Whether the point of law is indisputable is precisely the point a tribunal has to decide.

And, of course, whether someone is incapacitated or not is a question of fact not law.

Finally, if the claimant is not determined to be incapacitated then the tribunal would need to decide the actual beneficial interest of the claimant in the property, which may be disputed by the claimant.

It seems that the LA submission writer should be sent back to school!

Regards
Paul

Incapacity Benefit is called that because it's paid to folk who are incapacitated. Unfortunately, there doesn't seem to be a link to IB in the HB/CTB Regs and the word isn't defined in the latter. So:

Chambers: 'incapacitate': 'to disable, to make unfit (for)'.
Therefore, the past participle 'incapacitated' means 'disabled, made unfit' (for work, in this instance).

And 'incapacity': 'lack of capacity, inability, disability' - such as inability to work, for example.

Ordinary meaning of words does the business on its own, I think.

However ... just to rub it in, refer the silly devils to their own guidance manual - Chapter C2 (on capital), Annex A (definitions). Para 2.01 says it would be 'reasonable to conclude' that a person is incapacitated if receiving Incapacity Benefit. It seems to me, therefore, especially as the chap is receiving long-term IB, that it would be unreasonable to conclude that he isn't incapacitated.

Jim

'The Tribunal is asked to confirm that this is against a point of law and therefore outside the Appeals Service's jurisdiction.'

hahahahaha!

jj

"No, come on; be fair. Everyone knows that if its a point of law you have to ask a commissionaire. We asked that bloke in the funny hat who gets the taxis for toffs as they leave the Savoy. He said he didn't give a monkeys what we paid. So if he's not bothered why should anyone else be?
Appeals Service? Who do they think they are? They should stick to their own job, organising Flag Days for charities..."

See also HB Guidance Manual at A2.01:
"The term incapacitated is not defined in the regulations. It would be reasonable to consider that a relative or partner is incapacitated if one of the following conditions apply
a the person is receiveing one (or more) of the following benefits
Incapacity Benefit......"

Their own guidance therefore argues that IB is sufficient.

Thanks everyone. You have all confirmed that I have not lost the plot and the LA really have. It is all very useful and very entertaining thanks for making my day! I think I have enough to go on