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Rocks and Hard Places

September 24, 2012

So, a quick update on the “ongoing discussions” about my housing benefit problem. The clock is ticking towards the 16th October and it still feels a million miles away from resolution.

I had the first of the meetings with the professionals: a social care manager; a housing benefit manager and a housing manager. They confirmed that the decision to end the housing benefit was correct on the grounds that although their regulations state that the capital from a second property can be disregarded in full if it is occupied by an incapacitated relative (it is – Steven’s mother has paranoid schizophrenia); the regulations do not classify a “wife” as a relative. They acknowledged that Steven cannot live in the marital home and I had a terrible Hobson’s choice back in 2009 – care for Steven or care for my wife, but they cannot “break the law by bending the regulations”. I did remind them about the court judgement from 2011 where Justice Jackson quoted a senior manager as saying (about the deprivation of liberty authorizations): ” we are acting legally on everyone’s behalf” and this situation had a familiar feel to it, but to no avail.

I was given two options:

1. Persuade my landlady to transfer the tenancy into Steven’s name. Even if she agrees to that, there are several difficulties. Firstly, they said Steven would have to undergo yet another mental capacity assessment to determine if he has the capacity to become a tenant. (We’re still waiting for the mental capacity assessment about whether he can manage finances before we get the damages claim). But far more threatening, they said that if Steven became the tenant, they would have to take his damages into account as capital available to him and that would disqualify him from housing benefit. So, that would put him in exactly the same position as me. One of the officers mentioned putting the money into trust for him (which is what I’m planning to do if we ever get the money) but another officer said they might still have to disqualify him because it could be argued that the capital had been deliberately disposed of in order to obtain benefit.

2. We move back to the marital home and try to force Steven’s mother to leave (or swap properties with her). That might work if, a, she was willing (she’s not) and, b, she had the capacity to make the decision (she hasn’t). And try selling a house with someone refusing to move!

Even though it goes against all the expert witnesses recommendations that it is overwhelmingly in Steven’s best interests to live in his own home with me and that any move would have a major negative effect on his well-being, mental state and behaviour, we also discussed Steven having to go into care if no resolution can be found. But of course, even though that is the last thing that both he or I would want, they would still treat him as if he was a tenant and still get back his damages by charging him.

I’d like to be able to work more and not have this terrible dependency. At the moment I work about 24 hours a week in my counselling practice. I could get a second job somewhere and solve the problem but I don’t have (and wouldn’t get) the support to care for Steven to enable me to do that.

Tricky, eh?

 

 

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From → Social Care

7 Comments
  1. rock and a hard place……… if only we could help you —-

  2. Mark you need to get your legal people to look at HB Sch 6 Para 4.

    The HB Guidance Manual at W1.180 says that premises occupied by a partner or relative who is incapacitated should be disregarded in full (i.e. it doesn’t just say relative) It would make no sense for the law not to include your wife in this definition (because if she was your brother’s wife then the property would still be completely disregarded as the term relative includes the spouse of a relative). Have a look here: http://www.dwp.gov.uk/docs/hbgm-bw1-assessment-of-capital.pdf

    Good Luck xxx

  3. http://www.legislation.gov.uk/uksi/2006/213/pdfs/uksi_20060213_en.pdf Schedule 6, Paragraph 4 you need a legal interpretation of whether Steven’s Mum is included in the ‘partner or relative’ definition.

  4. Thankis Helen. That is precisely what we’ve been trying to fight this on. But as we know by now, Hillingdon never back down, so another court hearing looks the only option

  5. They just never learn do they. I’d fight this all the way to judicial review, I think they are incorrectly applying the paragraph 4 (b) clause to paragraph 4 (a) when it is not at all relevant.

  6. This is the part of the regulations that I believe they have got terrbly wrong. It is part of Schedule 6 – Capital to be disregarded in full:
    4. Any premises occupied in whole or in part—
    (a) by a partner or relative of a single claimant or any member of the family as his home where that
    person is either aged 60 or over or incapacitated;
    (b) by the former partner of the claimant as his home; but this provision shall not apply where the
    former partner is a person from whom the claimant is estranged or divorced or with whom he had
    formed a civil partnership that has been dissolved.
    They are applying the bit “this provision shall not apply…” to (a) where I think it only applies to (b). What they dont know is that from 1987 to 1999 I was a housing benefit training officer at Ealing council. My knowledge of the regs is very rusty but I think I know how to read a set of regulations

  7. They have also forgotten that there is a difference between seperated and estranged:
    Decisions of the Commissioner Volume 2007-2008 Issue No. 4 – December 2007

    R(IS) 5/07
    Mrs P’s information makes it clear that they are not living in the same household, so she and her husband must be “former partners”. Are they estranged or merely separated? That is not defined. I take “separated” to mean that they are still married but not members of the same household (in which case it adds nothing to the designation in the regulation of Mrs P’s husband as a former partner).

    “Estrangement” clearly adds another element. See CIS/4843/2002. R(IS) 5/05, following R(SB) 2/87, indicates that it has a connotation of disharmony. There is no evidence in this case about why Mrs P and her husband are living in two separate households, and therefore no basis to find if such disharmony is present.

    Are Mrs P and her husband separated and estranged or only separated?

    If they are separated and not estranged, then Mrs P’s interest in the house is to be ignored: Schedule 10, paragraph 4

    http://www.dwp.gov.uk/commdecs/amendpkg/07_no4.pdf

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