Wheelchair user needing desperate help ?

[stv999]

hello everyone,

 

i hope someone can give me some advice with the very worrying problem i have

 

i am a c5 tetraplegic paralyzed from the neck down after a diving accident over 20 years ago

i am in receipt of DLA high mobility and care and income support

 

now the problem is i obtained a bank loan in 2005 for help in purchasing a car plus other disability related items....i checked with the DWP, the CAB and the local council before going ahead as i knew the loan would probably take me over the savings threshold..the feedback i got from them was shouldnt be a problem as the money wasnt being used to make more money "ie investments shares etc"

 

the loan was applied for and a car was bought.....during this time i was struck down with pulmonary embolism and the extra money left over from the loan sat in my bank account...i didn't expect this to be a problem as i had checked already with the DWP and council regarding the loan.

 

forward to July 2010 bank loan settled and paid off

august 2010 receive letter from DWP stating they think i have/had savings over the threshold...a man from the DWP comes to the house to take a statement from me...i explain the situation and give him written evidence that the money came from a bank loan and copies of my bank statements from when the loan was agreed.

 

when interviewed in august 2010 my savings were below the £6000 threshold and bank statements were provided

 

January 2011, DWP say there not happy with my explanation...looking at case again

 

Aug 2011, receive letter saying my income support has been stopped completely because i have savings over £16000....this is simply not true and have bank statements to prove this!

 

because of this i have a very good chance of loosing my rented specially adapted house as i will not be in receipt of housing benefits and i cant afford to live there when receiving no income support.....i am in the same postion today as i was when interviewed in aug 2010...my savings are still below the £6000 threshold

 

during the past year i was never interviewed under caution...my income support was not suspended or adjusted......no-one has claimed that i have done any wrong doing....no mention of receiving over payments

 

i may have to move in with my elderly parents ....there house is not wheelchair accessible ,has no bathing facilities or access to a toilet ...how can the DWP put me in this position.

 

any advice or help to prevent me loosing my home greatly received

 

stv

Edited August 13, 2011 by stv999

[Nystagmite]

Do you have receipts / paperwork for this?

[stv999]

The only paper work i have is the loan agreement from the bank its amount and repayment term

All bank statements from receiving the loan until the present day

A receipt for the car that was purchased.

 

Thanks

[leemack]

Loans are normally treated as capital while you have the money, though in limited circumstances can be disregarded.

 

there are several issues that appear to be relevant here.

 

Firstly, you may be subject to an overpayment for the time you were actually in possession of the funds. But diminishing capital rules apply which probably haven't been taken into account. (this is where your savings are treated as reduced for benefit purposes by the amount you would have been spending had you not been in receipt of the benefit).

 

however if you no longer have the funds, then stopping your income support now will probably be due to the DWP treating savings you used to have as 'notional capital', because they believe you deliberately deprived yourself of the money in order to continue to qualify for benefits. Basically they treat your claim as if you still have that amount of savings in your bank, even if you no longer do.

 

The best way to counter this is to ask for a reconsideration of the decision in writing (or appeal if the decision has already been reconsidered), firstly stating why you took out the loan and when, then detailing the medical problems that prevented you from buying the necessary items including details of hospital stays, then giving details and proof (ie receipts) if available on what you actually purchased. Of course if the items are not considered essential, then this weakens your case.

 

You should also point out that a basic tenet of the deprivation of capital rules is the intention to deliberately get rid of the capital in order to claim or maintain a benefit claim - as this was a loan, all you would have needed to do to maintain your claim is not get the loan! It is also important to point out that you sougt advice from the DWP in advance and were misadvised - if you have a bill showing the call to the DWP at that time (unlikely, I know), then this could be used as evidence.

 

If you are at immediate risk, appeal instead of asking for a reconsideration and ask for an expedited hearing.

 

If you are in a council property, then any eviction proceedings will usually be suspended by a judge on proper explanation of the situation and knowing that an appeal is pending - though in this situation you need to get good representation to be able to assure the judge you have a good chance of success in your case.

Edited August 13, 2011 by leemack

[stv999]

leemack,

 

thank you for your advice.....regarding the deprivation of capital rule, this is interesting as i received no increase in benefits upon getting the loan or after spending some of the loan...so i gained nothing.....surely the whole point of the deprivation of capital rule should only apply if your main reason for disposing of the capital was to increase your entitlement to benefits or increase the amount of that allowance...do the DWP not have to prove beyond doubt that you intended to obtain/increase your benefit.

 

i understand the DWP have a code of practice and rules to follow but after making them fully aware of my situation and disability ….i thought the DWP would be duty bound to explore all avenues before placing me in a situation where I would face any severe hardship as a consequence of there decision, but it seems that the DWP don’t deem that putting a paralysed man in the situation where he could lose his specially adapted home and become homeless along with all independence and dignity a suitable enough hardship.

 

thanks stv

[leemack]

deprivation of capital can be about getting rid of savings in order to continue receiving benefits, not just to get an increase in benefits.

 

I think you'll find that if you ask in writing for your case to be reconsidered, giving evidence that the capital was due to loan and also giving details of why you took out the loan, what you spent the cash on (with receipts or bankstatements to prove purchases), and why there was a delay - that the DWP will overturn their deprivation of capital decision and reinstate your current benefit entitlement. I've handled a number of cases like this and the outcome in each case has been favourable.

 

I do think you will end up with an overpayment for any period you had undeclared savings in excess of the limits. You can then appeal this on the basis you were misadvised - but first you probably should do a subject access request to get all records they have on you - there is a small chance that there is a note on the system from the person who advised you wrongly regarding the capital rules. If you can't find evidence, then its your word against theirs, unfortunately.

 

You purchased a car pretty soon after getting the loan - I assume this was the bulk of the loan amount, so the overpayment period in this case would be quite small.

 

the most important thing to do first though is to challenge the deprivation finding (assuming that's why your benefit was stopped), and get your benefits reinstated.

 

Unfortunately the DWP do not consider feelings or situations or hardship unless they are specifically requested to. they just see a decision to make in front of them, based on the facts they have, in writing in front of them. This is why you need to give them more information on your loan and purchases to help them make a better decision. Were they remiss in not asking you for the information first before they ended your claim - definately yes, but we can't change that now (though once you get your benefits reinstated, you should put in a complaint), we just need to work within the system to ensure the issue is rectified.

Edited August 13, 2011 by leemack
added info

[stv999]

again leemack thank you for your advise

 

there was a delay in all the money being used firstly as i was totally oblivious that there was a problem as i had asked for advice before taking out the loan and no time-scales were mentioned.....secondly the constant health problems i was having

 

as regards to producing all the receipts as i was totally unaware that a problem could surface after taking prior advice, not all the receipts are available

 

i am due to see the C.A.B on Monday and fill out a gl24 appeal form

 

one question i would like to ask is....do you know if there is a time restraint on me applying for a new Income Support claim...and will they treat the new claim as having "notional capital".......even though my savings are below the £6000.00 threshold

 

 

stv

[Nystagmite]

.and will they treat the new claim as having "notional capital".......even though my savings are below the £6000.00 threshold

 

That depends if they decide on whether you've disposed of capital in order to get benefits.

[stv999]

hello,

 

 

my savings have been below the £6000.00 threshold for the past 2 years

 

stv

[leemack]

If notional capital is the reason behind your claim stopping, then any new claim would fail for the same reason until the reasons behind the notional capital finding have been overturned - either by proving their was no deprivation, using the diminishing notional capital rules or proving being misadvised - or a combination of all three.

 

Its a difficult position you find yourself in and you are right to be seeking professional help to deal with this - its a very complex matter and will need someone experienced to follow the matter through with you.

 

Even if you get the claims reinstated, an overpayment notice will inevitably follow which will need to be checked thoroughly by an adviser that it is correct - many overpayments are calculated wrongly. Some advisers aren't aware of the diminshing notional capital rule - make sure yours is.

 

Hope you get it sorted.

[stv999]

leemack again thank you for your time

 

i can only reiterate that i was acting on the info i was given before taking out the loan and was totally oblivious that i was doing anything wrong....nothing was flagged up or said the whole 5 years that the loan was being paid off.....how i can be guilty of the notional rule when i thought i was doing nothing wrong and had no knowledge that such a rule existed....i did not dispose of money i already had to gain or increase my benefit entitlement...all i have done wrong is follow advice that now seems to have been complete rubbish

 

depending on how quick the appeal process takes deep down i don't think it will come quickly enough to prevent me saving my rented wheelchair house....because the income support plus its other spin off disability extras was such a large part of my income.....i just cant cover my bills and commitments

 

stv

[honeybee13]

Hello there.

 

I really feel for you and hope you can resolve this. Leemack really knows her stuff, so I hope that advice has helped you.

 

You're doing the right thing seeing the CAB. I don't think it's been mentioned that Welfare Rights are good at this sort of thing, if you can find them locally. I believe they often work with the CAB.

 

My best, HB

[Nystagmite]

how i can be guilty of the notional rule when i thought i was doing nothing wrong and had no knowledge that such a rule existed.

 

Ignorance is not a defence, sorry. I do hope you get this sorted.

[leemack]

Regarding the house, is it council, housing association or private rented? I ask because judges are very hesitant to evict people even if it comes to that. I had a client waiting for a housing benefit appeal, who by the time the appeal was won was thousands in arrears, but with us going to court each time the council went for possession, and explaining the situation, the judge suspended the hearings until the appeal was heard - end result, the appeal succeeded and the backpayment covered the arrears.

 

And I think you are thinking of the worst case scenario anyway. Yes, you have to tell the council of your income support ending, but the council are required by law to then evaluate your housing and council tax benefit claim themselves, and not just rely on the income support decision. They won't necessarily make the same finding on the loan and notional capital. Although its true that some councils have to be firmly encouraged to make their own decision and not rely on the income support one.

 

I do believe that the income support decision is wrong, and with good representation your claim can be reinstated and you won't have to lose your house. The important thing is to get a speedy appeal if the DWP refuse to change their decision - having your rep contact the tribunal service directly if the DWP delay in sending your case, and asking for an expedited hearing.

 

Its also important to remember that evictions don't happen quickly - (assuming you haven't started with arrears) they take months and months and your landlord has to convince a judge that it is merited, with an adviser in your corner explaining why your appeal is likely to be successful. I've had clients with thousands in arrears, but awaiting appeals, not get evicted. So don't worry until you get to that stage.

 

And remember, I don't know your case, I'm only hypothesising that its notional capital that's been applied - best to get your adviser to check that this is the case. But I think its pretty silly for them to try to claim deprivation of capital over a loan, and if properly argued by your rep, can't see a tribunal agreeing with them, as there's no way to prove intent to gain benefit in your situation, and this has to be shown in order to prove deprivation of capital.

 

With an overpayment, if it comes, you'd just be paying it back out of your benefit, though you should immediately appeal the decision when it appears, and request that no deductions are made while you are appealing.

 

Be strong. Take this one step at a time, and don't assume the worst outcome.

Edited August 14, 2011 by leemack

[leemack]

Ignorance is not a defence, sorry.

 

But being misadvised is! If you take the time to try and find out the rules and a DWP employee tells you the wrong advice, then this is a defence.

 

However, it is difficult to prove.

[stv999]

But being misadvised is! If you take the time to try and find out the rules and a DWP employee tells you the wrong advice, then this is a defence.

 

I cant thank you enough leemack for taking the time and effort to help me through this hellish situation.....as i said will see the CAB tomorrow and will contact the local welfare rights officer and try and arrange a home visit....then we can try and tackle the DWP.

 

my main worry at the moment is paying bills as the income support covered most of this.....regarding the house it is a housing association house and i will contact them this week and explain my situation......as i mentioned before i acted on the information given in good faith and had no incling that i was infact doing anything wrong.....as i spoke in person in a job center and at the local council offices this will be very difficult to prove....the only item i have written down was the answer that the CAB gave me ...that was taken from the big blue book of benefits

 

" if, when you get a loan,you are under an immediate obligation to repay it, it should not count as your capital"

" a loan that you have an obligation to repay immediately should not be treated as your income or capital however it is paid"

 

this was the information that was given to me....it may have nothing to do with my situation at all but this was the information that was given to me and i presumed that the CAB were right in the info they gave me.

 

if it turns out i have been mislead by the information the DWP, the local council and the CAB gave me, who the hell was i supposed to ask to get the right information from ??

 

as i said a big thankyou for all help

 

stv

[leemack]

[the only item i have written down was the answer that the CAB gave me ...that was taken from the big blue book of benefits

 

" if, when you get a loan,you are under an immediate obligation to repay it, it should not count as your capital"

" a loan that you have an obligation to repay immediately should not be treated as your income or capital however it is paid"

 

 

No problem, happy to help.

 

I did check the benefit guide I have, just to confirm (though its from 2006), and it does say that a loan normally counts as money you possess. There are a few disregards, but yes, they are due to property, and also as in the quote you've given on loans that immediately need to be paid back, but this doesn't apply to you unfortunately.

 

Make sure you have contacted the housing benefit section as your income support stopping is a notifiable change of circumstance.

 

I assume you're claiming DLA? If on the small chance you're not, put in a claim.

 

The most important thing is to prioritise what you need to need to pay out of the income you have at the moment and pay the priority stuff first. The CAB may be able to advise better than me on this.

 

And if you can convince the LA to make a different decision on your housing benefit than the DWP did on the income support, then you should still qualify for housing and council tax benefit.

 

Hope it goes well with the CAB, we're here if you have more questions.

[stv999]

i really feel gulity taking up your time leemack but thankyou

 

as i see it the situation from my point of view is

 

i obtained the personal loan in good faith and in my opinion sought out the best information and advice i could get at the time

i presumed that the information that i was given was correct and had no cause to despute the facts...they are supposed to be the experts

 

as regards to the notional capital rule...

 

i did not get the loan and start spending the loan to increase the amount of benefit i was getting or to aquire or receieve additional benefits i was not in receipt of at the time or not entitled to

 

the DWP surely have to prove this is not the case with facts before this rule can be used

 

stv

[leemack]

the DWP surely have to prove this is not the case with facts before this rule can be used

 

stv

 

You would think, wouldn't you!

 

But no, all too often assumptions are made and the law misapplied, and it falls to the claimant to prove their case.

 

When you appeal your decision will go to the appeals section and a more experienced decision maker will take a look - so hopefully the decision will be changed there. (but no guarantee)

 

At the moment you don't need to worry about making a case that you were misadvised - though there's no harm mentioning it. The main thing is as you've said, is to confirm that your claim has been stopped due to notional capital being taken into account (your CAB adviser should be able to phone to confirm this is the case), and then put in the appeal making strong arguments..

 

Later, when you get the overpayment notifications, you will then need to appeal and argue being misadvised.

[stv999]

Thought i would give a quick update.....

 

Contacted the local council regarding my housing benefit and council tax....was re-assessed and have heard that i am still entitled to my housing benefit as i don't have capital above the threshold ..good news

 

My problem now is the DWP and there decision to stop my income support because of having capital over the 16,000 threshold.....which i don't.

 

I asked for a written statement of reasons over a month and a half ago......received nothing:???:...then

sent two recorded delivery letters asking for decision makers written reasons and points of law that where used.....received nothing:evil:

 

got the CAB to write to them asking for a written statement plus the calculations used to come to this decision....received nothing:mad2:

 

anyone have an idea what my next step should be......welfare rights seemed to think it may take up to a year for a tribunal date.....if i have to wait a year to get any income support i will be a skeleton

 

as always any advice greatly received

 

stv999

[flumps1976]

I suspect that they will als obe looking at the fact that you were receiving HR Mob of the DLA award and the majority of people would use this money towards the motability scheme that most car dealers run. There would not necessairily be an additional need for you to take our a loan to purchase a car as you could have utilised the DLA so that is why it is likely that they are looking at the deprivation of capiatl and using the diminshing notional capital assessment on your IS award.

[stv999]

I see where you are coming from.....but just because you receive higher mobility allowance that doesn't need to be used on a car you can spend the money on anything you like.....also you have far less choice of automatics cars on the mobility scheme.....so just because you are (on benefits and also disabled your not allowed to get a loan the same as everybody else can) to buy the car you want....they imply you should use the motability scheme....that doesn't sound a fair argument.

 

stv99

[flumps1976]

Oh I know that the choice is more limited on type choice of cars available, the majoirty of people would usually use their DLA mobility award to pay for the motability scheme so I was only trying to state that this could be a reason for stating that there could have been reason to decide about the deprivation of capital.

If the type of car that was needed was not available through the motability scheme then this could actually be used as a reason for taking the loan and using the money to buy a vehicle which would otherwise have a possibilty of being seen as a luxury.

I am really not trying to be funny and if possible trying to help the same as everyone else.

[stv999]

flumps1976,

 

sorry if i sounded abit aggressive, not aimed at you....i welcome any input or ideas....im just cheesed off at the position i am in at the moment after being given duff info at the start and the ridiculous time it takes the dwp to do anything to help the on going situation..as i said all ideas welcome.....especially ones that get the dwp moving

 

 

stv999

[Nystagmite]

I wonder if the letter from council could help?