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Burton v New Forest and mental capacity
This is a sad case which we are clutching at straws with, if anyone can provide any chink of light that would be wonderful.
Adult daughter has Autism, Fibromyalgia, severe mental health issues and generally unable to cope without extensive support from mum. Mum buys a house outright and lets it to daughter on a commercial basis, no issues with HB at this stage. Mum then gets cancer diagnosis and worrying that she will not survive transfers ownership of house to daughter as she knows that daughter will be unable to sort affairs out on her own should she die. HB continues to pay rent…
I’m not exactly sure of dates yet but daughter was sectioned twice around this time. Daughter has no recollection or awareness of what mum did in relation to house ownership (although we think that she signed the paperwork without understanding the significance).
Mum recovers from cancer and 5 years later transfers house back into her own name. HB then discover daughter was registered owner of house for period and follow Burton v New Forest to raise substantial overpayment in 2013. No advice received by mum or daughter at the time and no appeal made.
We’ve now picked it up and the only possible angle I can see is a mental capacity one, i.e. whether daughter had mental capacity at the time of the transfer of house ownership for this transaction to be valid. is this a possible argument? Or is there anything else we could be looking at?
The LA has not been receptive so far to the idea of a discretionary write off and I can’t see any grounds at the moment for the overpayment not being recoverable.
Any ideas?
I don’t think there is any point pursuing the mental capacity angle in the context of an HB appeal/revision request. You cannot expect HB to act as if a legal transfer of ownership never happened. There is absolutely no question about the decision being correct: the freehold owner of a house cannot be entitled to HB.
A discretionary write-off would be appropriate in my view - had it not been for this (in their minds) innocent paper transaction, HB would have continued and it is harsh to apply the letter of the law. If the Council won’t budge, then there might be some uncomfortable inter-family legal issues: the mother had no business charging rent for a property she didn’t own, the daughter should be entitled to a refund, which she could use to repay the overpayment; presumably a solicitor was involved in the first transfer of ownership, were they aware of all the facts and were they negligent in any way?
i don’t see how someone without capacity can validly sign documents transferring ownership of a house to herself.
I’d be getting advice from a solicitor on that, - there’s a LOT of law just in posing the quesiton.
apart from that, i think the other point about discretionary write off is probably worth pursuing, and you will of course need relevant medical evidence confirming she had no capacity then or now or at any relevant time.
Thanks Anorak/Claire.
Yes, I probably should have explained more clearly in relation to mental capacity. My thinking was along the lines of attempting to invalidate the Land Registry transaction on the basis that the daughter did not have capacity for the contract to be valid. If this is possible (which I don’t know?) to then go back to HB and get a revision of the decision as daughter would not have been the owner for the period in question.
Going for the conveyancer did cross my mind but the transfer was 15 years ago so I am assuming there will be a Statute of Limitation issue and I doubt we will be able to get any meaningful paperwork to show that they knew anything about the reasons for the transaction.
Thanks Anorak/Claire.
Yes, I probably should have explained more clearly in relation to mental capacity. My thinking was along the lines of attempting to invalidate the Land Registry transaction on the basis that the daughter did not have capacity for the contract to be valid. If this is possible (which I don’t know?) to then go back to HB and get a revision of the decision as daughter would not have been the owner for the period in question.
Going for the conveyancer did cross my mind but the transfer was 15 years ago so I am assuming there will be a Statute of Limitation issue and I doubt we will be able to get any meaningful paperwork to show that they knew anything about the reasons for the transaction.
conveyances keep their files for a looong time.
there may be a prof neg claim as well - never mind a complaint to the Law Society/claim on the fund (if the LA won’t withdraw).
I suggest you consult a solicitor in the locality who does conveyancing, property generally and has a litigation department.
the law on sale of land etc isn’t simple what with common law, land registry and so on.
the other point that occurs - if the client has no capacity, shouldn’t the CoP be involved? answer - yes.
where someone has no capacity the only person who can sign legal stuff on their behalf (if its in their best interests) is their deputy.
i’ll see if i can get a former colleague interested enough to join the forum and comment on this thread….