hello again.
got client whos partner received £36.600.00 in june 04. after this they got married,went on a honeymoon but then did not live together until november 04 because husband had mental illness and was attending anger management classes to try to help him control this.
between june 04-december 04 the money was spent on wedding,honeymoon,car,holiday,gifts and general living expenses.
have accounted for approx £7.000.00 of what money was spent on but client/husband have stated that they did not keep any more receipts and just lived well for the above period.
i know with deprivation of capital the onus is on the decision maker to show that the client deliberately disposed of the capital in order to receive or remain entitled to benefit but with this case i'm a bit flummoxed as to how to open my case to the local authority to try to argue on behalf of the client that they did not dispose of the capital to remain entitled to benefit?
if anybody has got any thoughts on matter it would be much appreciated as i'm pulling my hair out...
ta very much

What proof have the LA got that your clients did deprive themselves of capital in order to claim benefit?

wotcha! always seem to have a reply for me,thanx...to answer your query,none whatsoever old bean,but,i thought that not only does the decision maker have to prove etc,but that a person has to show that the money would've been spent that way whatever... hmmm ...does that make sense... i refer to the cpag book when it refers to the geezer who lost £60.000.00 on stock market?
maybe am getting too concerned aboutno evidence of expenditure???
laters...

Hiya!

Yes it makes sense what you're saying, i know exactly where you're coming from. Have your LA actually made a decision for these clients yet?

If not it may be better to wait until they do then build your argument around that.

If they have then just appeal and start to build your argument etc. Also if i read your post right your client was maintaining two homes for a while? This will make a big difference won't it to how much they spent?

As with all deprivation of capital any decision and appeal should be based on the facts of this individual case.

Good luck!

Nicky.

Are you sure the LA has made a decision on dprivation of capital? I have found by experience that they can avoid doing this (and therefore avoid having to justify why the capital was deprived) by not making such a decision.

What they actually do is assess your client's capital with the assumption that if spending is not accounted for then the client still has it. (The implication being that the client has hidden it somewhere). They will assess the capital as including any unaccounted amounts.

In this position the your client's problem is that the LA are not accepting that your client has deprived themselves of capital. The reason for deprivation of capital does not therefore arise.

Unfortunately the onus on proving that capital was deprived is on the claimant.

I have had a few of these cases and I have had very mixed results - even at tribunals. If you cannot in effect provide an audit trail in this day and age you have got an uphill struggle. Everyone of these cases I have had has turned into an enormous muddle and, as I have said, giving very mixed results.

I find that one of the things that Tribunals tend to forget is that you don't keep every receipt every time you go to Tesco or wherever and you don't get receipts at the pub. Some of their cash presumably went on housing costs which should be verifiable. In other words, the day to day expenditure that every person has is next to impossible to prove and they should accept any reasonable amount that the claimant says.

Derek is right that the first stage is for the claimant to show that they no longer have the capital but this isn't the same as saying they have to have a receipt for every penny. presumably they have bank statements (or could get them). If these statements show large lump sums being withdrawn with no obvious need then a reasonable inference may be that the cash is still under the bed or in a friend's bank acount somewhere. On the other hand, if there is a steady stream of withdrawals (albeit extravagant) then a fair inference may be that, yes they have spent the money.

Thats stage one over with, then the Tribunal, as you say, has to look at whether there was deprivation of capital in order to claim benefits and the onus of proof is on the DM. While as far as I know there is no requirement for anybody to limit their expenditure to IS levels for the DM's benefit, spending around £30 in 6 months is perhaps a bit more than good living when they had no plans on how to support themselves once the money had run out. Again, it may be reasonable to infer that, apart from a 'reasonable' amount of living expenditure and the justified large items they can show receipts for, the rest was spent quickly in order to claim benefits.

Hi
I think Derek is right in seperating the issues ie


1) is capital considered notionally? (reg51)- this dosent appear the case ? - ie the intentionality stuff dosent appear to be in question?

2)it seems that your client is considered to have actual capital as cant prove has spent? - see R/(SB)38/85

there is good commetry in Bonner plus artical in Adviser 91

if intentionality then-

from the amounts you have mentioned and the time frame this is going to be difficult case but seems to be special circumstances - I would consider friends and family as witnesess

hope this helps

nick

hmmmm ... certainly lots to chew over ??? will let u know how things develop ...