Private Pension to Pay Ex- Wife

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  • #31816
    Em21
    Participant

    Hi

    I have an appeal in against our decision to treat a claimant as having an occupational pension. The claimant receives £250 per month in a private pension, he has a court order in which he has to pay his wife £300.00.

    He has appealed against our decision to include this income in the calc of his HB/CTB entitlement. After a review of the claim he has now contacted the pension provider to pay the pension direct to the ex wife. I am assuming that he will then make the remaining payment to his wife.

    Now that the pension will be paid over can I change my decision and remove this income? I am inclined not to as the court order is not specific in stating that the payments must come from the private pension it just confirms that a payment of £300.00 should be made each month to the ex- wife.

    Looking at the claimants income, the court order seems to be a little steep for someone whose only income is SRP and a private pension, does he have the ability to legally challenge this order now that income levels have reduced?

    #88975
    Anonymous
    Guest

    If ther Court Order does not specify that the money should come from the pension, I think you’re correct to include it in full.

    See this thread and the caselaw referred to: http://hbinfo.org/forum/viewtopic.php?t=14166

    #88976
    Kevin D
    Participant

    Since that earlier thread, [b:964d7d5f8b]CH/1076/2008[/b:964d7d5f8b] has appeared. In that case, there was no court order and it was found that a person could not reassign his/her pension rights. The only outstanding issue was whether or not a trust existed – it was remitted for rehearing.

    In short, unless there is a Court Order or a genuine trust in existence, the mere instruction to the pension provider to pay monies to a third party doesn’t change the fact the monies belong to the person entitled.

    However there is a further issue in this case. Let’s assume the claimant has, in law, succeeded in making the pension “nil” for benefit purposes. The claimant’s redirection of the monies appears to be with a quite clearly identifiable “significant operative purpose” to obtain / increase benefit. On that basis, it’s notional income in any case.

    Additional authorities that *may* be of interest, albeit in a different context, include [b:964d7d5f8b]CIS/2317/2006[/b:964d7d5f8b] and [b:964d7d5f8b]CIS/0928/2009[/b:964d7d5f8b]. In both of those cases, child benefit was payable to person “A”, but was actually paid to person “B”. The respective Cmmr and Judge found child benefit was still that of person “A”.

    In summary, I’d be presenting something like this to the Tribunal:

    1) The income from the pension remains that of the claimant; or alternatively,

    2) The redirection of the pension was with a significant operative purpose to obtain / increase HB/CTB and, therefore, it must be taken into account as income for benefit purposes.

    #88977
    Anonymous
    Guest

    Not sure if this is on all fours but in CIS/745/1999, it was held that pension payments made to a claimants ex wife under a court order were not part of the claimants income

    #88978
    Em21
    Participant

    The court order only states that the claimant must pay £300 per month to his ex wife. It isn’t specific in stating that this money must come from his pension, so could you argue that he has chosen to use this source of income to repay his ex- wife?

    #88979
    Kevin D
    Participant

    [quote:13e8801972=”Em21″]The court order only states that the claimant must pay £300 per month to his ex wife. It isn’t specific in stating that this money must come from his pension….[/quote:13e8801972]

    In my view, based on that info, the pension is that of the claimant. In any case, as suggested above, he appears to have deliberately redirected payments in order to obtain benefit, so “deprivation” applies.

    NB: CIS/745/1999 is reported as R(IS) 4/01. In my opinion, the facts are easily distinguishable from the case your LA seems to have.

    #41909
    Anonymous
    Guest

    It may depend on the extent of his other income, it may well be that he does not have any choice but to dip into his pension

    Its worth bearing in mind that his pension will have been taken into account when the court assessed the amount to be paid

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