Housing Benefit Query

Mrs_P_Pincher

My daughter has recently applied for income based Jobseekers and Housing Benefit. The JSA application is OK but she has been refused Housing Benefit.

Her aunt died two years ago and left her house jointly to my daughter, her father and her aunt. It has been on the market for ages, but has not sold, so no-one has seen any money yet and they don't know when they will.

Also it has not been transferred into their names, but forms part of her aunt's estate and is therefore, as I understand it, currently vested in her executors, which does not include my daughter.

Should she have declared it? My feeling is not as this is merely an expectation and there is no guarantee of how much she will get or when?

Does anyone know?

Thanks

Mrs P P

Benefits_Bod

A bit more info would help.

The following assumes that HB has been refused on the grounds that your daughter has capital in excess of £16,000.

1) Has your daughter been awarded "income-based" JSA, or "contribution-based" JSA? (I noted the "claimed" income based version, but it is the actual award that counts).

If it is DEFINITELY income-based, the rest of the questions shouldn't really matter (unless there is a possibility that JSA entitlement may be revisited by the DWP because of the property).

2) Has probate been granted?

3) Does your daughter have a beneficial interest in the property? (It sounds as if she does).

4) Are the steps being taken to sell the property reasonable? e.g. Is the asking price realistic? (i.e. not at a level that is effectively preventing the sale?

5) How long has it been since steps have been taken to sell the property?


With regard to the "should it have been disclosed?"; yes - subject to the JSA & HB/CTB claim forms containing the correct question(s). This also assumes your daughter doesn't have relevant pre-existing knowledge of the effect the property *may* have on benefits.

Mrs_P_Pincher

Thanks for your response:

1. It's going to be income based definitely - she has made no contributions (just graduated)
2. Probate has been granted
3. I think she may have a beneficial interest in any proceeds of sale rather than in the property itself as it is not in her name, in whole or in part
4. The executors are being advised by a local estate agent (for what that's worth)
5. The property has been on the market about 18 months

It never occurred to my daughter that this would affect her entitlement to benefit.

The result of this decision is that she will have to leave London, where she has lived for the past three years, and return home where there is no work available at all because her chosen field is not represented in this area. As you can imagine she is devastated.

Mrs P P

Benefits_Bod

If the DWP award income-based JSA AND make that decision in the full knowledge of the beneficial interest in the property (i.e. deciding to disregard it), the LA is legally required to base any award of HB/CTB on the basis of the JSA award and CANNOT (legally) take into account any income or capital held by the claimant.

However, until / unless JSA(IB) is awarded, the LA makes its own judgements. As JSA hasn't actually been awarded, I advise your daughter to appeal against the HB/CTB decision on the following grounds:

1) She doesn't have the capital.

2) The beneficial interest, currently, has no value.

3) "2" is supported by the fact that there is no willing buyer at this time.

4) In any case, reasonable steps are being taken to dispose of the premises. [There is a minimum period of 26 weeks for which this disregard applies. However, it can be "...such longer period as is reasonable in the circumstances to enable him to dispose of those premises" - quoted from legislation].

5) The council has not provided any indication as to how it has valued the beneficial interest (I'm assuming this - LAs are notoriously bad at taking steps to properly evaluate capital - especially where property is involved).



If in the meantime JSA(IB) is awarded, contact the LA and point this out. In broad terms, a council can only override the JSA(IB) award if either there is evidence to suggest the DWP didn't / doesn't have all the facts in its possession and/or in the event of fraud where, for whatever reason, the DWP doesn't take action.

Just for clarity, an award of JSA(IB) doesn't in itself mean there is HB/CTB entitlement - the latter must still be claimed in their own right. The JSA(IB) award simply means income / capital is disregarded by the council.

Mrs_P_Pincher

Thanks for this Benefits Bod - just to be absolutely clear, she has been awarded income based JSA (sorry - that was the way I phrased it above)

Brilliant, concise advice.

Thanks again

Mrs P P

Jowo_2

It's time your daughter and the other beneficiaries applied pressure on the executors to shift the property, such as lowering the price, switching to a more effective estate agent or putting it up for auction.

18 months is a ridiculous time not to sell a property. As it is empty means it will start to become derelict where minor un-noticed repairs can snowball into major ones, it will be a target for squatters and it could be breaching the buildings insurance (as many lenders have clauses about not leaving it empty for more than a few weeks).

fluffymovie

HI there

Not to throw cold water on this but I would ask for the reason given in the decision notice by HB to refuse the claim.

There are certain cases in which the HB section can choose not to follow JSA rules but these are very rare cases where the true circumstances of the claim have not been given to DWP - usually fraud.

I work in HB and have attached a commissioners decision but it's only relevant if the above circs are the case.

http://www.bailii.org/ew/cases/EWCA/Civ/2000/518.html

Benefits_Bod

The "Hamilton" case cited by fluffymovie has in fact been more recently analysed in considerable detail in a decision of the "Upper Tribunal" (a jurisdiction akin to the High Court). For those that enjoy bedtime reading of the alternative kind, the link (minus the www) is below:

w w w .bailii.org/uk/cases/UKUT/AAC/2009/151.html

Um, "happy" reading....:eek:

PS: To emphasise: If the DWP are/were fully aware of all the facts when making the JSA(IB) award, neither "Hamilton" nor the Upper Tribunal case is relevant.