Deprivation… by attorney

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  • #31994
    Anonymous
    Guest

    In brief – my claimant sold a property in April 2008 and received around £300,000. Her daughter, who has enduring power of attorney, assisted the claimant in paying off a previous HB overpayment (around £50K), Council Tax arrears, credit cards and loans etc, which left the claimant with around £210,000. The daughter then took this money and divided it between herself and her brother. The daughter then vanished and the claimant has never heard from her since.

    Personally, I don’t believe the claimant is as helpless as she makes out. She’s in her 50s. She has epilepsy and arthritis but no mental health issues. She had been convicted and sentenced for HB fraud just a couple of years in ago (relating to the £50K overpayment) and there was no issue as to her competency to stand trial. She seems to have been managing fine without her daughter for the last two years (although I’m not convinced that they are as estranged as they make out). There was an allegation in 2006 that when her husband died, she hid the will from her children and the deceased estate was hotly contested in court. The majority of the estate was the property, which she sold in 2008. As far as we are aware the EPA still stands. The claim was made in June 2009, around a year after the possible deprivation.

    Questions – are the attorney’s motives relevant when considering deprivation? While the EPA still subsists, can we request that the daughter be joined as a party to the appeal and directed to give evidence?

    I suppose if it transpires that the attorney’s motives were purely selfish we would have to pay… but should we advise the claimant to report the theft and take steps to arrange for the EPA to be revoked?

    #89438
    peterdelamothe
    Keymaster

    My view on this case would be to use the £210,00 in full as capital (less any dim of capital etc.). The onus here is strictly on the claimant. If she has been defrauded then fair enough. Has she reported this substantial crime to the police and have the two involved (the brother as well) been arrested?

    Secondly if the daughter has the money strictly because of her POA then the claimant still has the money.

    I think you are entitled to take a tough line here; the claimant has previously committed fraud and thus the LA is entitled to demand a much stricter burden of proof than it would normaly do.

    You can ask the Tribunal to require any relevant witness to attend.

    #89439
    Kevin D
    Participant

    I largely agree with Peter. However, I’d go belt and braces and ALSO go (in the alternative) for notional cap. The decision would go something like this:

    ——————–
    You are not entitled to either Housing Benefit or Council Tax Benefit from [date] on the grounds that:

    1) the amount of capital to be taken into account for benefit purposes exceeds £16,000 on the grounds that:

    a) you hold capital in excess of £16,000; and/or

    b) capital held by your attorney legally remains yours and, combined with capital still held by you exceeds £16,000; and/or

    c) the total amount of your actual capital and/or the capital held by your attorney (but legally yours) AND/OR any “notional capital” exceeds £16,000. “Notional capital” is taken into account where money has been disposed of with there being a significant operative purpose of obtaining, or increasing, Housing Benefit and/or Council Tax Benefit.

    —————————

    NB: The legislation relating to deprivation is written in the context of the claimant. However, if a third party holds EPA, I think it could be argued the person with EPA can properly treated as if s/he is/was the claimant.

    #89440
    Anonymous
    Guest

    Thanks to you both for the fast replies.

    [quote:2cbeb475de]if the daughter has the money strictly because of her POA then the claimant still has the money. [/quote:2cbeb475de]
    [quote:2cbeb475de]capital held by your attorney legally remains yours [/quote:2cbeb475de]
    Do you know of any legal citations for the above?

    #89441
    Kevin D
    Participant

    I can’t immediately locate authority that is directly on point, but I would argue that PoA makes the attorney and the claimant subject to the same legislation. If the PoA doesn’t have the effect of engaging the responsibilities of the clmt, then what is the point of it?

    HBR 82(6) is admittedly woolly but I’d start there. A couple of authorities *may* be indirectly helpful but I’ ve not been able to check the context:

    R(IS) 5/91
    CA/1014/1999
    Jones v SoS [2003] EWCA Civ 964

    If it’s of any comfort, I assisted a LA last year with a case where a PoA was involved (also where large amounts of capital were at issue). The attorney firstly denied she held PoA; then argued it had no effect because it hadn’t been registered and, when both of those arguments failed to cut any ice with the FtT Judge, then tried to argue it wasn’t relevant for benefit purposes. That also didn’t cut any ice. In short, the FtT Judge treated the attorney as if she was in the same position, concurrently, as the claimant. NB: Unfortunately, at least is some ways, the attorney withdrew the appeal following a Direction for that she provide further evidence. So, it’s difficult to judge what might have ultimately happened. However, the LA’s decision had been notified to BOTH the clmt AND the attorney on the grounds each was a person affected.

    #89442
    Anonymous
    Guest

    Thanks Kevin – I came across the case you mentioned searching for “attorney” and “deprivation”. One of just two results. In my case there is no overpayment so I don’t think I can add the daughter as a party, but I’ll certainlly request that she be called to give evidence. Hopefully I get the same judge you did…

    #89443
    Anonymous
    Guest

    Jones v SoS [2003] EWCA Civ 964

    What a strange case… Mr Jones owes Mr Smith £17,000. He has £13,000 in the bank. They agree for Mr Jones to buy a car for £12,000 which he will keep registered in his name and he will use and maintain. Except Mr and Mrs Jones already have two cars! The car was meant to be security for the loan, but they seem to have missed an important point: cars do not retain their value! 10 years later and I’ll bet the car has been sold for scrap and Mr Smith hasn’t seen a penny back.

    Love the references to “the forbidden purpose”. 😆

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