Terms & Conditions

[emm]

Help!!!

I have a CTB case where a claimant was temporary absent for 52 weeks whilst he recovered from an accident at work. He says he has moved back in and is no longer staying with his parents – but I was going to suspend his claim anyway as the transactions on his bank statements seem to indicate that he has not returned and is not living at his home-

However, it also now appears that his father has been “lending” him £500 per month to pay his mortgage pending the outcome of the claimants case against his employer for unfair dismissal etc.

I’m at a loss now – do I treat the mortgage payments as income or not – if the claimant has to pay the money back- is it still treated as income. I’m inclined to treat it as income as it is money he using to pay the mortgage,

I also need to decide wether he as really returned to property. I visited him at the property in August 2006 when he he said he had returned- he was trying to renovate the property and I wasn’t convinced he had returned to live there full time but gave him the benefit of the doubt- as he had obviously returned at some point and so the temp absence could start again.

It’s difficult to prove he is not resident – how would you go about it?

Any thoughts

[Kevin D]

In my view, regular payments, even by way of loans, can count as income. The following may help:

[b:02beb42e27]CH/3393/2003
CH/1605/2005

Morrell v SoS for Work & Pensions (2003) EWCA Civ 526[/b:02beb42e27]
reported as [b:02beb42e27]R(IS) 06/03[/b:02beb42e27]

Regards

[emm]

Thanks Kev

But having searched schedule 4 to the ctb regs (24) – could the income from the loan be treated as payment in kind? and so disregarded

i can understand the reasoning behind the CD’s you gave – but do they really apply here?

[David]

I think I would treat these as voluntary payments (and therefore disregarded)

[Kevin D]

The difficulty is, at least in my opinion, is that the loans are not payments in kind. They are actual money. And, I think it’s difficult to ignore [b:44057a2e2e]Morrell[/b:44057a2e2e] and [b:44057a2e2e]CH/1605/2005[/b:44057a2e2e].

For what it’s worth, I think it is mad that families are effectively prevented from helping in this way. But that’s a moral argument; not a legal one. Ironically, if the payments were not loans, they would be completely disregarded as voluntary income. So, receive income that doesn’t have to be paid back and it’s ignored. But, receive income that has to be paid back, and BANG. Lose lots of benefit. Utterly ridiculous. Er, at least in my view. 🙂

Regards

[emm]

I agree Kev – we must all be crazy – to interpret the intention of regs?? you sometimes need the mind of madman!!!

[Kevin D]

Just seen David’s suggestion that the payments could be treated as voluntary payments. However, a payment can only be treated as a “voluntary payment” if nothing is being obtained by the payer in return (para phrased from CPAG; 18th edition, page 517).

The relevant case law quoted is:
[b:d97f42590f]R v Doncaster BC ex p Boulton (1992) 25 HLR 195 QBD[/b:d97f42590f].

As repayment is needed for a loan, I don’t think it can be treated as a voluntary payment.

[Edit]: [b:d97f42590f]CIS/702/1991[/b:d97f42590f] *may* also be of interest:

http://www.rightsnet.org.uk/pdfs/cis/702_91.pdf

[emm]

Thanks for your replies Kev and David

I am still not sure how to go with this one, I would tend to treat it as income but do not believe that it is income the claimant is using to live on on a day to day basis- ie towards his applicable amount.

It comes in and goes out –

If it was paid by his father direct to the mortgage company it would be disregarded- and as it is intended for this purpose, I think i will choose to disregard it.

[Kevin D]

Um, is this not simply ignoring the law (including a Court of Appeal case)? 😕

[Author]

Posts