Terms & Conditions

[Chris Cook]

Have an ongoing case and looking for advice as case is complex and to put everything down would probably run to pages.

Briefly- claimant (daughter) is on Propreitorship register with her mother of a property she is not currently living in purchased in May/June 2005 and daughter and mothers income required for the mortgage (admitted).
Mum is living there. Daughter has subsequently been accepted into our homelessness unit Feb 06 and we have been paying HB as the above was not declared on HB claim or homelessness applications (admitted).

Following an allegation received we did a Land Regisrty check which shows her as a Propreitor with her mother & Absolute Title for the property. No restrictions are recorded.

Following IUC daughter claims she has no interest in the property.
Claims she helped mum obtain mortgage but has no interest in the property at all. Daughter paid mum £425 every month Jun05-Aug 05 claiming it was for living there (with her child), then when fell out with her mum paid 6 months of paying for storage for clothes/goods kept in 2 rooms monthly amounts of £425-£445, while living with boyfriends parents.When split with boyfriend Feb 06 presented herself and child as homeless, accepted and made HB claim.

Daughter will not produce any papers as she says mum has them all and mum will not help, mum will not assist her/us (verbally told) and we are trying to obtain information via mortgage provider etc.

The Admin team have made a benefit decision that she does have Notional Capital and this has taken her out of benefit. (unable to get property valued at time as form LA1 rev has to be signed by claimant but she had refused so notional value used). She is now liable for full charge at homeless unit and accruing arrears.

Our dilemna in respect of HB is even if daughter is telling us the truth about how the property was purchased, who owns what (she claims mum 100%), she legally has an interest in this property, Absolute Title with her mother.

So have we been correct to include Notional Capital at this stage?
How would we decide on a capital value in future if the above decision is reassessed once a completed LA1 rev is sent to the District Valuer and he has made a decision on worth?(believe this is the process)

Any views would be most welcome, other lines of enquiry, references to legislation/CD’s, whatever people think will be useful.

As this is an ongoing investigation and I have not given every detail but if in giving advice you feel you need more info please indicate in your replies.

Many thanks

[Anonymous]

I would say the value of her share of the property in these circumstances is negligible. I dont see how anyone in his right mind would buy such an investment with that kind of encumbrance.

For authority see R(JSA)1/02

[Anonymous]

The District Valuer should put a value on your clt’s interest in the property, providing the LA1 is completed with all the relevant information. As a minimum you need to know whether they are joint tenants or tenants in common, which affects her right to sell her part of the property. The LA1 even allows him to value what the value would be if it was sold at auction (there is always a willing buyer)! This is actual capital, not notional capital, but beware if Mum is disabled or a pensioner as it will then fall to be disregarded. Incidentally it is an offence to fail to disclose interest in a property even if the clt believes that it doesn’t affect the claim. We have prosecuted under s112 – CPAG guide gives good advice in these cases.

[Anonymous]

Chris D states that
[quote:bcb63c0df9](there is always a willing buyer[/quote:bcb63c0df9].

Not in all parts of the country, situations vary dramatically.

[Anonymous]

Could be tricky to show that the claimant has a [i:9c667fc1e3]beneficial[/i:9c667fc1e3] interest in this property, rather than just a legal interest?

[Kevin D]

Chris D: As Chris C pointed out, the LA1 requires the clmt’s signature which has been refused.

Stainsby is correct to point out R(JSA) 1/02. However, [b:88a3b69667]Burton v New Forest DC[/b:88a3b69667] is of relevance at least to the extent of ownership.

http://www.bailii.org/ew/cases/EWCA/Civ/2004/1510.html (Burton)

As a counter-argument to R(JSA) 1/02, I’d point out that the clmt has failed to provide evidence that was reasonably required in order to make a determination. There is a CD which now makes it clear that the correct test is to consider what is needed to make a decision – not (normally) whether the clmt can supply it ([b:88a3b69667]CH/4688/2003[/b:88a3b69667]?). Where a clmt fails to provide evidence, LAs may have no option but to draw inferences. See [b:88a3b69667]R(H) 3/05[/b:88a3b69667] for authority on drawing inferences.

One further observation: is it [u:88a3b69667]actual[/u:88a3b69667] cap, or [u:88a3b69667]notional[/u:88a3b69667] cap?

Regards

[Anonymous]

CH/4688/2003 is not on the Commissioner website so for the moment I will assume that the Commissioners do not see it as being of wider interest.

S112 prosecutions may be a bit harder these days following King v Kerrier District Council where the Court reminded everyone that dishonest intent must be proved beyond reasonable doubt

[Anonymous]

Stainsby – s112 is “knowingly” not “dishonestly”

[Kevin D]

[b:38c392d8b2]CH/4688/2003[/b:38c392d8b2] (para 11):

new.hbinfo.org.com/comdecs/ch_4688_2003.doc

Regards

[Chris Cook]

Thank you so far for the observations.

Mum is not 60 or over nor disabled.

Nothing on the Land Registry document suggests they are Tenants in Common/Joint Tenants (Would this be normally specified in the LR documentation?)

Will start looking through the CD’s

Any other views?

[Anonymous]

Chris – Land Registry won’t help you. You need to ask the clt (who probably won’t understand the question!!!) to provide any paperwork which she holds and in it’s absence my old friend “adverse inferences” comes into play, as per Kevin!

[Anonymous]

My old friend R(JSA)1/02 would counter that because the LA must have evidence to back up its inference, in particualar evidence of an active market in investments in a part share of a property where the other shareholder occupies it.

As for S112, its headed “false repesentations” as opposed to S111A which is headed “dishonest representations” so Chris is to an extent correct and I concede that I overstated my case in that S122 does not specifically mention dishonest intent, but as the analysis of S112 in Findlay says:
“If a person forms a false view that no disclosure is required, then provided that view is genuinely held, it cannot be said that he “knows” that disclosure is necessary”

I was always taught that telling lies is dishonest and it was in that context that I cited King

[Chris Cook]

Had a look at some of the CD’s.

Does any one have a copy/electronic link to R(JSA)1/02 they can post.

Many thanks

Chris

[Anonymous]

Try

http://www.osscsc.gov.uk/aspx/view.aspx?id=242

[Author]

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