Terms & Conditions

[lizc]

Clmt has well over £16K capital but it’s been seized by the courts pending a criminal investigation. She has no immediate access to this money as it’s in the hands of the prosecution but on the asset-seizing order it says that she can have access to the capital if she applies in writing etc., but just in order to meet her living expenses.

She doesn’t appear to have unlimited access to it, but I can’t find any specific disregard – do we count this as capital (which would completely exclude her from HB) or as the assets are frozen, is there some way of not counting it?

All advice appreciated!

Thank you!

[Anonymous]

The general principle is that if a person cannot actually get their hands on the capital, then you should disregard it.

[lizc]

Thanks! That’s what I thought and that does seem sensible and fair, but I was trying to find a way of justifying that in law, but couldn’t quite see how!

[Anonymous]

On the other hand…if the courts are saying she can have access to the capital to meet her living costs, would that include her rent and CTax?

[markp]

Sorry,

Don’t think so as it is available to her upon application.

Do I know what I'm doing? The jury's out on that........................

[Anonymous]

But only dribs and drabs for living costs, not the whole lot.

[petedavies]

I agree with mark p

It is her capital and she has access to it, albeit only for living costs. This would include CTAX, rent, mortgage payments etc.

To disregard it you would need an stat. authority and as far as I am aware there is not one

[Anonymous]

[quote:9745e20990]This would include CTAX, rent, mortgage payments etc[/quote:9745e20990]

Yes, that’s the point I was making earlier…if she can access the capital for her housing costs, then she will not be entitled. But I am not sure that a nil decision on the basis of reg 43 of the HBR 2006 would be appropriate.

[lizc]

Thanks all for the contributions.

Failing anything to say that captial that’s been frozen and is only available in this limited way should not be treated as the claimant’s capital in the first place, OR anything to say that it can be disregarded……is there any way we can award HB?

I am still undecided about this one….any other views most welcome!

[Anonymous]

I shall probably have Pete and Mark jump on me for this…

I think you should ask her to provide you with evidence of how much the Court would be prepared to let her have, and at what frequency, and what those payments would relate to. I would then apply reg 41 of the HBR 2006 and say that this is unearned income.

If the Court is prepared to give her enough to cover her housing costs and reasonable living expenses, I guess there is a strong chance she will not qualify anyway.

[quote:bc4a93d15c]To disregard it you would need an stat. authority and as far as I am aware there is not one[/quote:bc4a93d15c]

How about reg 47 of the HBR 2006? We take into account [i:bc4a93d15c]capital which a claimant possesses[/i:bc4a93d15c]. This woman is quite clearly not in full possession of the capital, so how do you assess it as such?

[lizc]

Thanks again – much appreciated.

[markp]

No Andy, not jumping (not that energetic, ever!!!!!)

Good point. Claimant should be able to provide documentary evidence of seized capital and how much she can get at once as I very much doubt they’d give it her in full on one request.

However still think that as she can get access to it then it could be considered as notional capital.

Do I know what I'm doing? The jury's out on that........................

[Anonymous]

Isn’t the point [i:28af3e918c]how much[/i:28af3e918c] she can access?

My cousin has $1m US in a bank account in Zimbabwe. Due to Government restrictions on currency flows, he can only transfer $5,000 a year from Zimbabwe to his UK account. Are you suggesting that because he has some access to the capital we should treat him as being in possession of the full $1m?

[markp]

Point taken – comes back to the onus of proof, doesn’t it, and that rests with the claimant. Regs are suitably non – committal (in my view) on the subject and merely putting forward one possible decision.

Do I know what I'm doing? The jury's out on that........................

[Anonymous]

What about disregarding the capital on the principle that she does not have access to it, but taking into account the amount of income she can derive from it?

[Author]

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