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My father recently gifted my daughter some money which he wanted her to use for college expenses. As she is terrible with money he asked that I control the money on her behalf so that she cannot go spending it willy nilly. I paid it into a bank account that has no money in it bar for my child benefit payments. I withdraw the money as and when she needs it on approved spending basis.

 

I have had to submit my bank statements to IS for annual review and sent covering letter saying that the money was a gift from my dad for my daughter (aged 17) and he supplied covering letter explaining what the money was for and why it was held in my account and not hers.

 

Now they are saying they may have to class it as my capital which will reduce my income support by £12 a week. Can they do this as they have all information about where money came from and for what purpose it is to be used for. I was under the impression you can hold money on someone else's behalf as long as you can prove it, which I have?

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This brings up the distinction between the legal owner of capital and the beneficial owner of capital.

 

You are the legal owner of the capital, as it's in your bank account, but you are not the beneficial owner, as it's your daughter's money. From a benefit point of view it's the beneficial owner that matters, and you should not have your IS reduced because of this.

 

The person you spoke to may not fully understand all the rules. If they do reduce your payments, you should write to them and ask for a reconsideration based on the evidence you submitted that it is your daughter's money.

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Your dad should have put your daughters money into her own account and gave you control of that. As the money is in your account I think it will be seen as yours.

 

EDIT: I stand corrected, but I was thinking of the case where a mother opened a joint account so her daughter could get her money for her, and when the mother died the daughter ws asked to pay back 1000s in benefits.

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Your dad should have put your daughters money into her own account and gave you control of that. As the money is in your account I think it will be seen as yours.

 

EDIT: I stand corrected, but I was thinking of the case where a mother opened a joint account so her daughter could get her money for her, and when the mother died the daughter ws asked to pay back 1000s in benefits.

 

Yeah, it's a complex area of law. The difficulty often lies in proving that the claimant is not the beneficial owner. I think this OP has that covered, though.

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This seems to be the problem I am up against. Will wait and see what they decide and then appeal if they take any money off me, they would probably say the same if I had put it in a joint account with her anyway as to why i was on it if not my money. You can't win for taking their own advice and sending explanatory letter which I was told initially was fine.

 

Woman on phone this morning said they needed statements since account was opened as they didn't know I had the account, which is rubbish as they asked for statements for both accounts in letter lol. Seems half of them don't know what they are doing to be honest.

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Ok latest is they have sent me a letter requesting bank statements going back to when account was opened!!!

 

They claim they did not have any knowledge of my second account which is a blatant lie as the letter asking for bank statements for yearly assessment asked for account statements from both accounts, I have a copy of the letter they send to you when you first make a claim which you sign to say the information you gave in phone application is correct and that has both accounts listed in capital section, and I also have a copy of previous letter mentioning two accounts dated last year

 

My child benefit has been paid into that account for best part of nine years. It was originally a joint account with my ex husband and his name was taken off it when we divorced, leaving it in just my name. So in effect they are asking for 9 years of bank statements for a yearly assessment. They had statements for the account on last years assessment.!

 

I foresee they are trying to claim I have not disclosed relevant information to my claim to substantiate that they will think the money for my daughter is mine so they can take money off me and conveniently deny any knowledge of the account it was paid into, making out that i didn't tell them about the account because there was money in it. My bank will give 12 months of bank statements free and then anything after that they charge £10 a year because it has to go to head office or somewhere to get the information.

 

Apart from the fact that I can't afford to pay the fee my bank charges to get that many back statements I don't see why I should have to supply them when it is obvious it is their mistake as I have three evidences of them knowing about it and I am sure they must have more than me on their system. They are just ones I happen to still have.

 

They say if I don't supply them by mid January they will suspend my claim.

 

I have told them three times on phone now that they are aware of the account and I have proof so do I make a complaint which they are obliged to deal with before they suspend my benefits? or refuse to comply on the grounds given and then appeal any decision on the basis of their maladministration of my claim?

 

Seems to me they are setting me up for a shafting so i don't really want to go down the route of complying because it will be harder in my opinion to prove after the event when they have made the decision, rather stand my ground now and not give them the ammunition when I know they are in the wrong and can prove it.

Edited by xmedia
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Ask them to pay the 90 pounds it's going to cost you to get statements. I would also make the complaint. I had forgotten one of the reasons I stopped coming on this site for a few months was because I find it so frustrating that benefit staff don't know about benefits anymore, & one dept doesn't work with another. It just all seems to be set up to fail for people, for a reason. I hope you get it sorted, it's too annoying that they are getting away without paying people what they are entitled to just to meet government targets these days....

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Well I managed to get hold of a Welfare Support Officer today and she advised I should tell them I give them permission to contact the bank for the statements, if they pesist , at their own cost as for me to do so would cause me further financial hardship. Let them foot the bill for their mistake. She also confirmed they cannot class it as my capital as I am not the beneficial owner as someone said earlier in the thread.

 

Will fire them a letter of saying I have provided adequate information for my re-assessment and see what happens. Will send them photocopies of the evidence I have to support that they do know about this account if they bother to check their records properly.

 

She said far too many of them make decisions without the full facts and too many people having input on things and contradicting each other. She will be happy to get involved on my behalf if needs be so feel a bit better about it all now

 

Thanks all for your input and I'll let you know what happens

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  • 2 months later...

Well this is still ongoing

 

further to last post I gpt a letter saying they were taking money from my carers allowance. I telephoned and said i can't afford that. They told me to send in an I&E which i did. They took money out for two weeks from my carers and I still had no word on I&E or even what it was being taken for. Phoned them up and was told they had no idea why it had been set up as there was nothing on the system saying to do so. Also said it was strange to be taken from CA and not IS as they had to make a special arrangement to do that. So they stopped taking it out of my CA and are not taking any payments from my notional capital overpayment till it is paid back to me

 

Back to the money situation they sent a letter thanking me for statements for both accounts, glossing over the fact that I had submitted three lots of evidence to show that they knew I had two accounts since 2007!!! Now asking for copy of my dads bank statement showing money leaving his account and statements for all the months since the money was paid into my account and what she had spent it on.

 

Spoke to welfare rights again and they pointed out three points in their October 2011 decision maker guidelines which showed how they should be treating this and said it was not on asking what she had spent money on so far as it is her money. Upshot is they advised to get onto local MP as they are out of order.

 

Local MP is now on the case:) J sent a letter back saying what welfare rights had said and points they raised and told them MP is now aware of the case and will be looking into it on my behalf

 

fingers crossed they back off and accept that it is not my money and as she is beneficial owner as per statement from my dad it is nothing to do with my claim.

Edited by xmedia
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She was on my claim originally in April 2007 because she was only 13 then when the age changes first came in I had to change to Job Seekers when she was 14. At that time I was caring for my dad but not claiming carers allowance. Because I was limited in the hours I could work they advised me to claim Carers Allowance so i was not required to actively look for work because I essentially could only look for part time work .It was too restrictive to what I could work so they said I may have problems meeting the JSA criteria. I did this and then came off Jobseekers Allowance and they put me back on Income Support with carers premium. I am pretty sure I got a letter saying that I was no longer getting the child element of income support because she was over 14. I was told to apply for Child Tax credit then for her which I get because she is still in full time further education. The pnly criteria I have for being on Income Support is the fact i am a carer so can't claim Job Seekers, my claim is for myself as a carer. I can't claim it as a lone parent because she is over the age limit. Because i claimed Carers Allowance before they took me off Job Seekers and put me back on Income Support they deduct the carers allowance from income support rather than receiving underlying entitlement/

 

They haven't made a decision on the capital yet but yes they applied notional capital late on in the year of my first claim in 2007 , when I received my divorce settlement because i had not got proof of all the expenditure months later when I claimed, I gave them a detailed account of what I had spent but I had no proof, in the form of receipts so they classed it as if i still had it!!!! Basically i was setting up a home from scratch and a lot of stuff i didn't keep receipts for as I wasn't claiming when I was spending and not having been on benefits for 13 years previous to this claim i didn't know they would need them. Despite seeing bank statements showing I only had £1500 left at the time of my claim. (Both accounts I hold which is why I knew they did know about this account my dad paid the money into). This resulted in an overpayment of just over a thousand whilst they made their minds up. I'm currently paying that back at £5 per week so they only give me £20.50 a week after the carers allowance deduction, notional capital reductions and the overpayment pay back.

 

I have given them the bank statement from my dad's account showing the money out of it with yesterdays letter, he was not happy giving his banks statement to someone, and they have also had a letter from him stating the purpose of the gift adn that he has given the money to her, but I have to make withdrawals for her, which initially when I told them about it they said was fine. Now they keep asking for different things and as the welfare rights person said statements showing withdrawals from the account doesn't prove ownership they are just withdrawals on paper.

 

The three sections of the decision makers guidelines the welfare rigjts officer mentioned are these

 

 

The following rules as per the October 2011 Revision of the Decision Makes Guidelines

 

Chapter 27 of the Decision Makers Guidelines

 

29070 Only the capital where people are the beneficial owners is included when

working out what capital they have

 

29091 If there is written evidence naming who has a beneficial interest in the capital the

people named in the evidence are the beneficial owners

 

29150 A person who is given capital is the beneficial owner of that capital. In England and

Wales it can be assumed a gift has been made if the people involved are related in

certain recognised ways. This is called presumption of advancement.

 

They say that these together with the bank statement from my dads account and his statement lette, which is written evidencer they asked for is plenty proof enough that it should be disregarded.

 

MP copntacted me today asking for my national insurance number so they can speak to DWP

Edited by xmedia
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I asked if Income Support was paying for your daughter because if they were then she cant have capital over 3k anyway so there should be no problem there.

You are right the rules changed in 2004 and any new claims to IS meant that the customer had to claim CTC for that said child

So as you state you lost your condition of entitlement when she reached 14. Hence why you had to claim JSA..

Then of course you claimed CA so you moved back to I.S....

 

How did they find out about the capital from your divorce settlement did you declare it when you made your claim 2007?

and did you appeal the notional capital decision

 

and is your clase reviewed do you get a letter every three months or so showing the notional capital going down?

Edited by MIKEY DABODEE
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Yes I declared my capital when I claimed initially and told them I was claiming because I was now down to £1500 of it. Like i said hadn;t claimed for 13 years prior to that so didn't know I could have had £6000 anyway:(

 

They then wanted to know what I had spent it on as it was quite a lot of money but it had all gone on repaying debts to family, setting up house from scratch, furniture etc , four months rent and bonds and i took my dad on holiday to Ireland as a thank you and upgraded my car (10k_), clothes etc. All prior to my claim. They decided that I didn't need to have a holiday, should not have repaid family debts and as I had no receipts for a lot of stuff that I couldn't prove the expenditure. Sp they decided I had notional capital of £14,000 and therefore had been overpaid. So they now deduct a big chunk out of my income support and i have an overpayment to pay back Notional capital is still 10k now after all this time. Doesn't reflect spending in the "real world" only reduces about 1k a year.

 

No they said it was pointless appealing as i had no receipts and some of the expenditure was not "allowed for". I had no idea when I was spending the money before claiming that it would be classed as deprivation of capital which is what they concluded it was. By that point i was too stressed out after divorce, moving house, stalker and all the hassle I just dropped it and didn't appeal.

 

My stalker phoned up after I had reported to police out of spite and told them that i had more capital than I had declared so after a few months of claiming they started to look into it. Had to produce all statements and everything as they said they were obliged to investigate after a "tip off" even though he told police it was done out of spite and was a false report. I had police incident number to give them also.

 

Whole thing was a nightmare.

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No not had a letter for ages was due for review in November and then all this business started with my daughters money.

 

Definately nowhere near ended though sure on last letter it was still showing as nearly 10k in notional capital, this was last year. As an indication my Income Support should be £67.50 plus carers premium per week and I get £20.50 a week after the deductions. Often wondered how long the notional capital thing runs for as it is .

 

Just looked at the paperwork from their decision and they said £14,255 for the notional capital decision back in May 2008 which was when they made their decision. Ruled i had spent the money in two months prior to making my claim in order to deprive myself of capital to make a claim. Received Money in February 2007 but house sold in October 2006, meant to complete in December 2007 but due to problems with buyers buyer was not till following February. I took the lease of my house on and started furnishing it in October 2006, borrowing money of my dad to pay rent and furnish it ready for when i could move in as completion was only meant to be 6 weeks after sale , so spending was not done in 2 months as they claimed was 7 months.

 

I don,t get a letter every three months saying how much the notional capital has reduced. Last one I had was beginning of last year I think showing 10k ish. Think I get roughly one a year. think one before that said £11k ish.

 

I ended up with over a thousand overpayment because a year had gone on since my claim.

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Oh I thought 10k was notional capital in 2008 which should be under disregard by now.

 

But when a notional capital decision is done on on a claim, as part of the decison

then usually a calculation is done that takes the capital down by £250 every three months ish....

case controls are set on the case to implement it

so if your case is not being reviewed every three months then you maybe are being underpaid.

if your claim is just being review yearly then you

you need to ask this to be looked again.

Unless you get the arrears due once a year...

 

its a shame you didnt appeal that deprivation of capital decision...

 

They havent made a decison on your daughters capital yet..

but if you have the paperwork from your father then hopefully this will be sorted soon for you

could you not put the money into another account for her in her name.

this would make your capital review on your IS claim easier for you as well

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Wish i had of done Mikey but he only gave it to her on the condition that it was withdrawn by me so i could control her spending, she is not the best with money as she has never had any and would have been spending it like wildfire.

 

We did not foresee it being a problem as it was her money, when i first told them they said a letter from my dad was fine but now they just keeping asking for stuff every couple of weeks.

 

Think if i moved it now they would read something into that so best just ride it out now and appeal on the points raised by the welfare rights people if need be.

 

A tariff income of £40 a week was set for the claim in 2008 - no idea what it is currently at

Edited by xmedia
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I still have all the paperwork from then they sent me and they said $14,225 notional capital plus they added the actual money I had £1500 so that is probably how they got that then.

 

I think they paid me around £11 a week after the £5 overpayment at the start, because i was getting the carers premium on top and it is now up to £20 a week so I have only gained £9 a week in nearly four years. Considering the benefit has gone up a couple of pounds anyway since then it doesn't seem to have changed all that much. Although the notional capital has come dpwn about 5k last i heard, my payments don't seem to have risen much over all that time. If i remember right it was something like £61.50 for income support at that time. Now its £67.50 so that is about the money it has gone up anyway with the benefit changes that have been made over the years by the government|? So if they are supposed to give me back £4 a year roughly ie £1 every three months as you said before shouldn't I have gained £16 a week by now plus the normal increases in the benefit?

 

You can see why I am concerned about them ruling Rachel's money is mine because that would take me another £12 a week off leaving me £8 as week plus then i would have another overpayment. My current overpayment will not run out till next year as it is.

Edited by xmedia
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Ok have been looking at paperwork. In early 2008 when they assessed my notional capital they set a tariff income of £40.00 oer week. total capital they decided was £14,225 in notional capital plus £1500 actual money.

So total capital of £15,775. This is the figure they set a tariff income of £40 per week on

 

But if i am allowed to have 6k in capital should the tarifff income not have been applied only on £9775 which i believe is £17 a week.

 

If you are allowed to have 6k why has that not been disregarded?

 

As of now my notional capital stands at £10.025 and they are applying £17 tariff income to that

 

also another question In the decision maker report they also stated this

 

I submit that Mrs XXX is not living permanently in specific accommodation (i signed the lease in Nov 2006 and have been living same address ever since?)

 

What on earth does that mean and what effect does that statement have on any money decision?

Edited by xmedia
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Good news

 

I decided to ring MP's office as I had not heard anything for over a week. They looked at their system and said they had received a reply to their query yesterday and had not got round to wriitng to me as yet.

 

Basically DWP said that despite my refusal to supply the additional statements and an expenditure detail of all payments withdrawn on Rachel.s behalf, they have decided that they will in fact determine that the capital does in fact belong to Rachel, based on other supporting evidence they had already received

 

As a result they will amend my figures back to November 2011 and any arrears will be paid on my next payment date.

 

Woohoo there is justice. Thank god I got the MP involved.

 

Special thanks to Mikey for all the support and advice he has given me on this matter

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Good news

 

I decided to ring MP's office as I had not heard anything for over a week. They looked at their system and said they had received a reply to their query yesterday and had not got round to wriitng to me as yet.

 

Basically DWP said that despite my refusal to supply the additional statements and an expenditure detail of all payments withdrawn on Rachel.s behalf, they have decided that they will in fact determine that the capital does in fact belong to Rachel, based on other supporting evidence they had already received

 

As a result they will amend my figures back to November 2011 and any arrears will be paid on my next payment date.

 

 

 

Woohoo there is justice. Thank god I got the MP involved.

 

Special thanks to Mikey for all the support and advice he has given me on this matter

 

Hi,

 

Words fail me. I am a Welfare Rights Adviser and it never fails to amaze me the total incompetence of some DWP officers!. I can say this as I was a processing officer in a distant past and decided that I wanted to work on the other side of the fence so to speak so defected to advice work. You should make a massive complaint and ask for your notional capital to be looked at again. All the stuff you have put on the forumabout your history you should write in a complaint letter and ask for this to be looked at urgently. You have been treated so unfairly it beggars belief. Decisions can still be revised - called an anytime revision. You might even get compensation. You should ask where to address a complaint to as if you dont send it to the correct section it will just get lost in the system and hidden away.

 

Regards and Good Luck

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Thamks for that brhjsom

 

I am at present looking at putting a case together for a review on the notional capital decision At the time of the decision I was so stressed out with all that had been going on in a short space of time, when they made the decision and refused the appeal I just couldn't face a tribunal on top. And I was led to believe it would be a waste of time anyway.

 

Looking at the paperwork again recently I have found at least 4 discrepancies with my statement and the DM report. Quite glaring ones as well. Added to that I now have a better understanding of the system thanks to posters on here and researching on the net. For a start the capital was paid into a joint account with my father because I owed him a few thousand pounds to repay money he had paid out on my behalf prior to receiving the money. Now it would seem that i have a case for my father having a beneficial interest in part of the capital, after all he did "own" 7 or 8k of the money as that is how much he had paid out. Therefore tht should have come off my capital i believe, instead I was penalised for repaying him when it was not a priority debt. I'm sorry but you can't borrow a pensioners life savings and refuse to pay it back because the DWP don't like it!!

 

At the end of the interview they did say they felt I was being honest abput my expenditure and had not spent to gain benefits but it was not their decision.

 

I have also found a case study on rightsnet where it was ruled by a tribunal that it was impractical to expect a claimant to have receipts for every expenditure a year after and in instances like that "to demand actual receipts for all expenditures, however small, is not reasonable, and places the practical burden of proof not only on her rather than the Secretary of State but also places it far too high. She is fully entitled to ask that general conclusions be drawn from her oral evidence and from the actual amounts she holds in all her assets at any particular time"

 

I had to fully set up a house from scratch and buy EVERYTHING for it, this had to be done in a matter of weeks, to enable me to have it ready for whenever completion on our house sale occurred. So yes i did spend a lot of money in 7 months but i also paid £585pcm from November to June out of my own pocket plus two bonds so not I think unreasonable spending. Also because my dad lent me money from his savings at home it was not repaid into his bank account it was returned to a safe. No paper trail and ruled that I was hiding the money and there was no proof I had even borrowed from or repaid money to my father. They said it was not practical t expect them to believe that a person would keep that large an amount at home. My dad is housebound due to COPD and he wants the money at home as he pays all his bills in cash and is old school. Doesn't like direct debits likes to be in control of his money.

 

I think because of the tip off from my stalker they had me down as a "fiddler" from word go and were always going to look at my expenditure in that way and I was never going to get a fair decision.

 

Anyway I am going to press on with revision request and involve MP again if need be. I have been penalised for 5 years for having to set up a home for me and my daughter and my crime was not keeping receipts and repaying my father. Didn't know I had to at the time as I had never heard of notional capital or deprivation of capital

Edited by xmedia
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Thamks for that brhjsom

 

I am at present looking at putting a case together for a review on the notional capital decision At the time of the decision I was so stressed out with all that had been going on in a short space of time, when they made the decision and refused the appeal I just couldn't face a tribunal on top. And I was led to believe it would be a waste of time anyway.

 

Looking at the paperwork again recently I have found at least 4 discrepancies with my statement and the DM report. Quite glaring ones as well. Added to that I now have a better understanding of the system thanks to posters on here and researching on the net. For a start the capital was paid into a joint account with my father because I owed him a few thousand pounds to repay money he had paid out on my behalf prior to receiving the money. Now it would seem that i have a case for my father having a beneficial interest in part of the capital, after all he did "own" 7 or 8k of the money as that is how much he had paid out. Therefore tht should have come off my capital i believe, instead I was penalised for repaying him when it was not a priority debt. I'm sorry but you can't borrow a pensioners life savings and refuse to pay it back because the DWP don't like it!!

 

At the end of the interview they did say they felt I was being honest abput my expenditure and had not spent to gain benefits but it was not their decision.

 

I have also found a case study on rightsnet where it was ruled by a tribunal that it was impractical to expect a claimant to have receipts for every expenditure a year after and in instances like that "to demand actual receipts for all expenditures, however small, is not reasonable, and places the practical burden of proof not only on her rather than the Secretary of State but also places it far too high. She is fully entitled to ask that general conclusions be drawn from her oral evidence and from the actual amounts she holds in all her assets at any particular time"

 

I had to fully set up a house from scratch and buy EVERYTHING for it, this had to be done in a matter of weeks, to enable me to have it ready for whenever completion on our house sale occurred. So yes i did spend a lot of money in 7 months but i also paid £585pcm from November to June out of my own pocket plus two bonds so not I think unreasonable spending. Also because my dad lent me money from his savings at home it was not repaid into his bank account it was returned to a safe. No paper trail and ruled that I was hiding the money and there was no proof I had even borrowed from or repaid money to my father. They said it was not practical t expect them to believe that a person would keep that large an amount at home. My dad is housebound due to COPD and he wants the money at home as he pays all his bills in cash and is old school. Doesn't like direct debits likes to be in control of his money.

 

I think because of the tip off from my stalker they had me down as a "fiddler" from word go and were always going to look at my expenditure in that way and I was never going to get a fair decision.

 

Anyway I am going to press on with revision request and involve MP again if need be. I have been penalised for 5 years for having to set up a home for me and my daughter and my crime was not keeping receipts and repaying my father. Didn't know I had to at the time as I had never heard of notional capital or deprivation of capital

 

Exactly, your personal circumstances speak for themselves- you dont need receipts for everything - glad to be of help. Hope it goes well. make sure you send a complaint too as the length of time this has all gone on is completely unreasonable. You should be compensated for the distress you have suffered.

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I also never received a breakdown of what had been allowed and what had been disallowed. Don't know whether that was a requirement of explaining their decision. seems they just jumped on the closing balance of the joint account as being notional as there was no paper trail for most. I repaid my dad, paid three months rent in advance on my house, because last time I claimed housing benefit it took about 8 weeks to process and I didn't want to get behind with my rent and paid for the holiday, only receipt of which I had was for deposit paid. I know i accounted for all money except maybe about £1,000.

 

They also said there was no evidence that the account had been in joint names. Because the account had been closed for a few months by the time this all came up the bank just provided a transaction list,showing all in and out transactions whilst the account was open, but they never asked for proof it was in joint names when asking for evidence of things. I am sure I can get proof for this reconsideration request though. They did not ask for written statement from my dad either to say he had lent and been repaid the money.

 

Oh and they also had a letter from my ex husband (they wrote and asked him about settlement) confirming that I had borrowed a lot of money from my father in order to prepare the house and pay rent up to making claim and he expected there to be very little of the capital left after repayment and all the expenditure involved.

 

This will be part of my argument at the moment based on info from case studies

 

"The nature of an item of expenditure as from income or capital is a question of fact. This must be determined on the balance of probabilities. It is in my view inherently improbable that a claimant will be able to produce receipts for day to day expenditure for a period in the past. She is under no legal duty to keep receipts, or accounts, for past years or at all. She can be asked to produce the records she has, and she can be expected to keep the sort of records reasonable people in her position actually keep. (Were she under a specific duty, as with value added tax, the answer would be different). And she can be asked if she can explain any large and unusual payments out. But to demand actual receipts for all expenditures, however small, is not reasonable, and places the practical burden of proof not only on her rather than the Secretary of State but also places it far too high. She is fully entitled to ask that general conclusions be drawn from her oral evidence and from the actual amounts she holds in all her assets at any particular time".

 

"As the account holding the money from which expenditure was made was held in joint names, with her father, for the purpose of repaying money lent prior to receipt of the capital, it is fair to presume that her father had a beneficial interest in part of the capital. The true ownership of funds in a bank account in this case did not require proof of the establishment of a trust but imply evidence of the presumption arising from the joint names of the account".

Edited by xmedia
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