UC and if you go over 16k?

HillStreetBlues

NedS said:

HillStreetBlues said:

The second point is mixed accounts, any spending must be from capital until the first income is paid, as you can't spent what you haven't got.

Oh good god, that blows my simplistic view above out of the water!

If you have £10,000 of capital on the first day of the AP, and you spend £2,000 during the AP (from capital) and then are paid £2,000 on the last day of the AP, you still have £10,000 on the last day of the AP but by your logic above (which I cannot fault), you now have £8,000 of capital and £2,000 of unspent income only received that day (and which becomes capital on the following day). This scenario could easily happen for anyone with AP dates 1-31st of month, who is then paid on the last day of the month or indeed anyone who is regularly paid near the end of their AP.

It certainly can be complicated as dates would be needed for the spending and income.
A person AP 1st-31st normally gets the UC on the 7th so any spending before that would be capital, and that date can be brought forward due to bank holidays and weekend. Once UC is paid then spending will be from income if that then runs out spending being from capital again until payday then it becomes income again.
I agree with your view that the appeal should be based on the DWP have calculated the deduction incorrectly AFAIK as the DWP are claiming the deduction the onus is on them to show it's correct, rather than on the claimant to show it's wrong.

I have never though about all of this before these threads as I've thought of it as end of AP monies - income =capital and everything I've seen before enforced that view. If when I had my UC review they say I spent most my income (I couldn't argue with at as nearly everything come out after my UC payment) I would have been over the £6k lower threshold.

NedS

HillStreetBlues said:

It certainly can be complicated as dates would be needed for the spending and income.

For the purpose of any review or calculation of capital, the claimant must already have provided all relevant bank statements, so DWP have all the information in front of them. They can see all incomings and outgoings to all accounts on the provided statements to make any relevant calculations.

NedS

HillStreetBlues said:

I have never though about all of this before these threads as I've thought of it as end of AP monies - income =capital and everything I've seen before enforced that view. If when I had my UC review they say I spent most my income (I couldn't argue with at as nearly everything come out after my UC payment) I would have been over the £6k lower threshold.

Agreed, and given how complex it potentially is, how would DWP possibly word it to a claimant, or expect a claimant to be able to correctly declare their capital. Hence the simplification of just declare all monies/assets as of the last day of the AP, and they can apply disregards for any capital that clearly falls to be disregarded.
AFAICS, there are no operational processes or guidance to ensure Income is not included in any calculation of capital, just the relevant UC Regs that define each.

Spoonie_Turtle

Does it matter that the quote about spending income first comes from the DMG which is for legacy benefits, not the ADM which is for UC and other current benefits?

HillStreetBlues

NedS said:

HillStreetBlues said:

It certainly can be complicated as dates would be needed for the spending and income.

For the purpose of any review or calculation of capital, the claimant must already have provided all relevant bank statements, so DWP have all the information in front of them. They can see all incomings and outgoings to all accounts on the provided statements to make any relevant calculations.

It's just such a minefield with OP having their income & capital and a child's income and capital in the same account. whose is whose could be anyone's guess.
 

NedS

Spoonie_Turtle said:

Does it matter that the quote about spending income first comes from the DMG which is for legacy benefits, not the ADM which is for UC and other current benefits?

Yes, it potentially lessens it's relevance to UC and I would not want to depend on it applying to UC at a tribunal.

A better question to ask is what is what point of law was that guidance based upon? Is there a regulation in legacy benefits that addresses the order in which income or capital are spent?

If there is a regulation in the legacy benefit legislation that covers spending from income/capital, and an equivalent regulation has been omitted in the UC Regs, then one could base arguments around that fact.

Otherwise, in the absence of any relevant legislation, it is probably reasonable to assume that generally income is spent before capital.

blackstar

Some incredible, informed and intelligent replies. Thank you.

TBH most of it goes over my head as I find it incredibly difficult to understand, having got a F in Math at school and not much better in my other GCSEs I admit Im not very academic.

If it went to a tribunal I would struggle to explain how my income and capital hadn't been calculated correctly if I was asked. I could just hope the Judge would understand it and hope the Judge doesnt ask me why I think it hasnt been calculated correctly. Although once I get the mandatory reconsideration results, should be any day now, I can share on here and am sure others would be happy to have a look. 
I certainly dont understand it all  maybe 70% at best of what is being said. 

I got some free advice from a solicitor who deal with DWP appeals and he didn't know anything about h1050 or income and capital at all and neither did the CAB Welfare Rights advisors I spoke to on the phone. 

So if I do goto tribunal 

A) based on the above it makes me very nervous.

B ) If Judge states a conclusion to DWP that they have to work out the income and capital in a certain way from now on for myself and others. Then .....

C) I bet it each month and they will still get it wrong again, then I'll end up having tribunals on every AP.

D) I really don't have the stomach for  C or having to get all the evidence and getting told a bank statement is just a "Summary" when its a statement. Or some other total gibberish like "it appears you sent a duplicate"???? As if I by mistake sent the same statement twice makes it invalid somehow??? 

E) The back and forth with a DM and waiting days for the DM to reply, its such a long time.

Only option I can think of is when in the Jobcentre and the guy did a Money savings and investments calculation he just added up all our monies and said that's your capital right there.. and just go along with it....even though I didn't agree with him and said atleast 30% of that is actually income and not capital but he just said something that made no sense to me about yes but the last month it was the same some that's you capital. I didn't want to argue. 

HillStreetBlues

NedS said:

Yes, it potentially lessens it's relevance to UC and I would not want to depend on it applying to UC at a tribunal.

A better question to ask is what is what point of law was that guidance based upon? Is there a regulation in legacy benefits that addresses the order in which income or capital are spent?

If there is a regulation in the legacy benefit legislation that covers spending from income/capital, and an equivalent regulation has been omitted in the UC Regs, then one could base arguments around that fact.

Otherwise, in the absence of any relevant legislation, it is probably reasonable to assume that generally income is spent before capital.

I've done as much research as I can,  and it might be from case law CIS/515/2006 https://administrativeappeals.decisions.tribunals.gov.uk//judgmentfiles/j1970/CIS 0515 2006-00.doc

Evidence

 

42         The next issue, as illustrated by that random example, is the question of evidence of expenditure. The question is put in this form: how is it to be shown that a payment out is properly made as a deduction from capital? But the assumption behind the question is wrong. In an ordinary account into which someone pays earnings, pensions or benefits, the routine payments out are not payments out of capital at all. They are payments out of income. Once the error in the current approach in the schedules is realised, much of the substance of this problem disappears.  It is a complete waste of time chasing every single receipt of a claimant in order to see if this is a justified payment out of capital if it was not paid out of capital at all. The papers in this case reveal the absurd detail into which the case has gone because of these errors. The receipts – each of which has been copied into the papers and has been the subject of an individual decision on behalf of the Secretary of State - vary from till receipts from ASDA for salad bought cheap for 15p, from Macdonald’s for a double cheeseburger, and from Tesco for groceries totalling £1.79 (and many other small receipts of those kinds) to a diamond solitaire ring bought for £875 and one or two other large expenses, with items in between such as taxi receipts from Tenerife, items of clothing and household goods, a theatre ticket for the Grand Theatre, Blackpool, the account for a holiday in Presthaven Sands, and a course of Spanish lessons for Mrs S’s son.

HillStreetBlues

@blackstar
I feel all we can do is wait (however frustrating that is) until they come back with the MR decision,  One you appeal at some stage the DWP would normally look at it again to see if it their case is actually winnable.
Once you get the MR then rather than try can calculate it yourself point out the errors in the DWP figures (as NedS stated above). Hopefully we will be able of see those errors when the MR arrives.
 

NedS

HillStreetBlues said:

@blackstar
I feel all we can do is wait (however frustrating that is) until they come back with the MR decision,  One you appeal at some stage the DWP would normally look at it again to see if it their case is actually winnable.
Once you get the MR then rather than try can calculate it yourself point out the errors in the DWP figures (as NedS stated above). Hopefully we will be able of see those errors when the MR arrives.
 

Yes, I agree.

As this case is somewhat complex, I would wait and see what the MR comes back with. If you are happy that is a reasonable approximation of your capital, then you may consider if you just want to roll with that.

If you are unhappy with the outcome, then you can file for tribunal. As I said earlier, I would make a simple filing that DWP have failed to adequately account for your income based upon the UC Regs. It's then up to DWP to respond (and check their workings, so at this point it goes to DWP legal who hopefully know what they are doing) and if it goes to tribunal, it will be up to the panel of magistrates (one of whom should be an accountant or of financial background) to determine if DWP have applied the legislation correctly to your case. Of course it's helpful to the tribunal (and DWP) if you can do the hard work for them and point out the error of their ways, but that is not always possible in complex cases such as this where definitive guidance does not exist so all you can do it point them to the relevant legislation with the assertion that it has not been applied correctly in your case and let them work out how it should be applied to your case. At the very least you should get sensible answer that provides clarity.