Hi folks,

My client made an IS claim last year.

The decision on the claim was that she wasn't entitled becuase she had ACTUAL capital above £16,000 (I think they meant £8,000).

I have been able to show, with evidence, that the amount she had was between £6,250-£6,500, which is very near the £6000 she stated in her application. A request to revise before the appeal was refused.

On the face of it the appeal is totally pointless and a waste of everyone's time and money.

My problem is, that the DWP appear to have got it wrong. She actually had significantly more money before her claim which was spent with some haste. IMO the DWP should have decided that she had deprived herself and hence posessed NOTIONAL capital. Interestingly, the detailed letter that I used to request a revision supported an award on a subsequent new claim, but still no deprivation and notional capital decision.

I'm worried in case the tribunal arrive at the same conclusion as me. I am unsure if they have jurisdiction to replace the actual capital decision with a notional capital decision. Can they do this? Instinct doesn't help me on this one - I'm either way.

If they can, will the principle of res judicata apply meaning that the tribunal's notional capital decision becomes ineffective from the date of the award on the new claim?

Thanks, as usual, for any and all replies - and any spare valium!

Got to be a quick reply (sorry!)....

Separate claims = separate decisions = separate appeal process.

Therefore, it is my (albeit limited) understanding, that res judicata won't apply.

Whether the DWP can then supersede, or revise, its decision on the second claim is another question.....

Regards

It's difficult to give an opinion when I do not know the evidence you have for deprivation of actual capital.

But there is the possibility that the DWP are in reality not accepting that your client HAS DEPRIVED themselves of capital.

The problem you get if this happens is that the DWP do not have to address the notional or deprivation issues.

A Tribunal faced with a case where the DWP have argued actual capital is entirely free to find that in fact the case is one about notional capital and amend decisions accordingly (it is very similar to a tribunal faced with a Reg 7 HB case that decide in fact it is a Reg 6 case).

There may be an issue that they should warn you if they are going to do this so that you have a chance to prepare your case to defend against a notional capital finding etc. so as to ensure the hearing is fair.

As far as the second claim: the Tribunal findings on notional capital (if they make any) do not bind the decision maker on the second claim (ie they don't HAVE TO accept those findings). However, a decision maker could possibly revise/supersede its decision on the second claim on the basis of mistake of fact etc (or I think there is a D&A provision to revise where the DWP would have made a different decision had they been aware of the decision on the first claim etc).

Thanks for your replies folks.

Client's tribunal was heard today and she won. The tribunal overturned the actual capital decision but did not consider deprivation at all. We hoped they wouldn't, but I did the prep just in case.

Thanks again.