I have a client who owns a property in France. This property is tenanted on a 3 year lease (2 years remaining). She has returned to england and is renting privately.

She has been refused HB as she is not taking reasonable steps to dispose of the property.

The steps she has taken / is taking are:

She is currently speaking to solicitors here (and also about to contact a french solicitor) to find out if she can a) eviict her tenants before the 3 years is up, and b) to see if can sell the property while there are tenants in it.

She has also submitted divorce papers to her husband who currently co-owns the property, (however i do not think that this will count as a step to dispose of the property, unless we can get evidence that he is not allowing a sale to go through)

Does anybody have any experience of appealling HB decisions like this, and is there any caselaw / tribunal outcomes etc that i can site to strengthen our appeal.

Thanks in Advance

Hi Kevin

In R(IS)5/05 the commissioner said -

15. That leaves paragraph 26, which was apparently considered but rejected by the tribunal on the ground that the matrimonial home was not on the market. I agree with Ms Sedgwick that the tribunal did err in its consideration of paragraph 26 because it took too narrow a view of the phrase "reasonable steps to dispose of those premises", given the evidence that divorce proceedings were on foot at the time of the hearing and it was unclear when they had been started. The bringing of ancillary relief proceedings within a divorce suit may have been a necessary preliminary step before the matrimonial home was put on the market and there also seems to me no reason why paragraph 26 should not apply while arrangements are being made for a former partner to buy the interest of the claimant, which avoids putting the home on the market at all. (If the claimant is proposing to buy out the former partner and move back into the matrimonial home herself, paragraph 27 may be applicable instead.)

16. I also agree with Ms Sedgwick that this issue needs further investigation in this case because it is not clear when any steps to dispose of the premises were first taken. It might have been before divorce proceedings were issued because correspondence with the claimant’s husband about the disposal of the matrimonial home could amount to reasonable steps (see CIS/1644/2004, to which Ms Sedgwick draws my attention). As Ms Sedgwick says, the tribunal had to consider what the position was at the date of claim. It would also have been able to take account of any change of circumstances before the date of the decision under appeal. Section 12(8)(b) of the Social Security Act 1998 prevented the taking into account of any change of circumstances after that.

So, although that case is distinguished, it draws out the principle that “reasonable steps to dispose of the property” must be construed widely and is a question of fact not law. So, if correspondence with a co-owner concerning the sale can be verified then that might well be when the “step” was first taken.

Similarly, contacting a solicitor with a view to selling the property might also be a “step”. I’d bang the appeal in right away. You may also want to look at CIS/6908/1995, which confirms that the disregard can start before the house was put on the market but I’m not familiar with the facts of that case.

Regards
Paul

Thanks for your help so far, I have found CIS/6908/1995 and R(IS)5/05, but cannot find CIS/1644/2004. I have been looking on www.osscsc.gov.uk, where else can i find this information?

Thanks again

Kev

I can't find it either so unless someone has a copy and can post it to or on rightsnet, you'll have to apply directly to the Commissioners Office for a paper copy for which there will be a small charge.

Also have you asked the LA what value they think the property actually has? Sitting tenants.....?...Joint ownership? Sounds like a very encumbered asset to me.

I recently came across and IS case where a former matrimonial home had been disregarded for several years because the horrendously acrimonious divorce put the sale out of the claimant's power completely. It's all down to the facts. If you are doing everything you can towards selling it, it ought to be disregardable.

If the proerty is jointly owned, the value is that of the deemed share (not half the value of the whole with vacatn possession see R(JSA)1/02

It was also held in R)IS)1/03 that the right to bring proceedings to obtain a proeprty adjustment order under the Matrimonial Causes Act was not a capital asset. I would argue that this would apply to any right to bring similar proceedings under any other act (for example the Children Act), where the outcome is something that would be left to the discretion of the Court.

Try emailing the Commissioners via the website and ask for an electronic copy. If one is available its free