Terms & Conditions

[Anonymous]

If anybody can help on the following case please do:

We were paying Mrs H, who is 92, CTB based on her receiving pension credit.
Her son then got POA for her.
He then transferred her property into his own name and paid off the remaining £29,988 mortgage owed on the property by taking out a mortgage in his own name for the £29.988. The property has been valued at £129.129 by the Halifax.
He has now put in a claim for HB on behalf as his mother as he is charging her £350.00(m) to live in the property.
They have a assures shorthold tena for the property for 6 months.
He has set the rent from a valuation from a local estate agents.
He has stated that he would never evict his mother but his solicitor has advised him that this option would remain in any legal rental agreement!

I personally feel that this has been done to take advantage of the HB scheme but it isn’t that easy to prove!

Can anyone help!!!!

[david farrar]

You haven’t provided any dates for the events you have detailed, however would Mrs H not fall to be excluded from HB under Reg 9(1)(h) as a previous owner?

[markp]

I would consider as follows

(a) tenancy created to take advantage of HB scheme with

(b) former owner to fall back on or

(c) not commercial as would not evict etc if (b) fails.

All three options would be included on any submission to TTS.

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

[petedavies]

The attorney has transferred the property into his name – why? Although a PoA gives a wide range of powers they are not completely unfettered.

On paper mum seems to have lost £100K in assetts and gained a £350.pcm debt into the bargain.

Before you go further I think you need a full explanation from the son, backed up by supporting documentary evidence e.g. advice from his solicitor.

There was about £100K equity in the property. The interest on this amount of capital would, I suggest, be more than enough to meet your claimant’s rental liabilities.

I would give serious consideration to referring the matter to fraud, possibly even the police depending on what you get back.

I agree with Marks suggestions although not necessarily the order. I think before going down that line you should first give serious consideration to whether or not a contract exists. This is especially the case if he used the PoA to let the property to her.

[markp]

Pete,

I deliberately discounted the liability issue as that, to my mind, was a complete non – starter given some of the tribunal chairs round here. However I appreciate that you could consider that first but I felt that given the details provided a liability could be shown and not easily disproved.

Still wouldn’t pay, though.

Mark

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

[Anonymous]

Thanks for the advice

I have decided to make the claim a non-qualifier based on reg 9 (1)(h) on the bases that they have not proved that she would not have been able to stay in the property without giving up ownership!

Im sure they will dispute!

[Kevin D]

Just a technical observation in relation to HBR 9.

You can run with any number of the provisions. If more than one applies, it is “in the alternative”.

However, “contrived” MUST be the final “alternative” in all Reg 9 cases. This is because 9(1)(l) makes it clear it can only apply where none of the other bars apply (but, you can still use it as an alternative; just not “as well as”).

Regards

[petedavies]

Just echoing Kevin’s posting.

I think you need to use all that you think are applicable.

I cannot remember seeing anything to suggets “could not have continued to occupy” is limited purely to financials. The same argument could apply if your claimant was, by way of an example, not maintaining the property and it was in danger of being declared as unfit for habitation by the L.A.

…and adding my own two-penneth worth…

I know that Mark disagrees with me on this point but I do think that an enforceable contract is a must for your starting point. Without the PoA document I cannot make specific comment but the duties of an attorney can generally be summed up as:

[list:2a9e4347b0]Act in the best interests of the donor.
Consider the donors wishes when possible
Keep the donor’s money and property separate from their own and other people.
Keep accurate accounts of all their dealings and transactions on the donor’s behalf, and to be ready to produce them at any time.
Keep the donor’s money and other assets must remain in the donor’s name.[/list:u:2a9e4347b0]
Which of the above apply will really depend on the wording of the instrument and the type of power granted but, from what you have posted, I would be very surprised if the tenancy were enforeceable.

I would not be surprised if a chair expected you to demonstrate a valid contract existed before considering any of the other aspects.

[markp]

Pete,

I’m not saying I’d disagree and obviously would accept the contract as evidence of a liability, if that is how the case were to pan out. What I was thinking was that the question of the liability being a sham would be difficult to prove and most tribunal chairs would (IMHO) accept that there is a liability. I am pretty certain from the details given that it is a sham but don’t believe it could be proven. That said I would list the Reg 9 reasons for refusal and I think that one could go for created to take advantage using the others to fall back on (as necessary). Sorry if my post led you to believe that I didn’t think the contract would be necessary.

Hannah, one other thought. Did the son state that he wouldn’t evict in writing or was it only verbally stated? That could make a lot of difference to the decision in that if it were only verbally stated I’d then expect, on appeal, something along the lines of “I never said that. You must have misunderstood me when I said….”

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

[Anonymous]

He actually put it in writing that he would never evict his mother!

Thanks for all the advice!

[markp]

Hannah,

It has just been pointed out to me that you don’t actually specify what type of PC the claimant is receiving. Is it Guarantee or Savings Credit?

If it is the latter then have you also considered the possibility of deprivation of capital and if the former have you considered contacting the Pensions Service and advising them of the transfer of the property?

Just a couple of other thoughts on the matter.

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

[Author]

Posts