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    • Well said Marina, I haven't read that yet. Rafael Behr has a good opinion piece in the Guardian as well posted today.   Sam Coates was great, wasn't he?
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    • Hi allets, CCA to whoever is the debt owner today, let us know their response, or lack there of, for further guidance   Or you could read up other like threads and the advice will be the same, so you'll know what to expect   BT
    • OK, let's get stuck into these damn fleecers.  Building on last night's version, new bits in red.   LFI, can you check I've understood the POFA bits properly that you suggested (4.  NO KEEPER LIABILITY)?  Thanks.     IN THE COUNTY COURT SHEFFIELD    CLAIM NO: XXXX   HX PARKING LTD  (CLAIMANT) VS XXX (DEFENDANT)   Date: 3rd May 2022   Witness Statement   1. I, Mr XXX, of xxx am the Defendant against whom this claim is made.   1.1. I was the registered keeper of the vehicle XXX.   1.2. The facts in this statement come from my personal knowledge. Where they are not within my own knowledge they are true to the best of my information and belief.   INSUFFICIENT & CONFUSING SIGNAGE   2. I confirm that i was the Registered Keeper of the vehicle which is in question in this case and the vehicle was parked in Alma Leisure Centre, Chesterfield. The vehicle was parked there because the driver went to McDonald’s for eat in (bank statement proof exhibit 1).   2.1. There were no clear signs at the entrance nor in the car park, it was night time and weather was not clear as well.   2.2.  In their Witness Statement opposing my set aside application the Claimant includes a site plan showing the position of their signs and a close up of a sign to make it look like it is featured in the Guinness Book of Records as the largest billboard in world history.   2.3.  The reality for the motorist is completely different.  I attach photos, some from Google Earth but most taken by myself, which show what a motorist sees when approaching the site in daylight (exhibit 2).  There is no sign at the entrance.  The car then drives past a gym and a cinema without encountering any signs.  When then parking in the car park outside McDonald's once again there is dearth of signage.  Admittedly a motorist who perhaps came out with binoculars might just about be able to make out signs in the far distance mounted on various buildings.   2.4.  The driver visited the site around midnight.  I further attach photos taken at night from the McDonald's area (exhibit 3) and defy whoever is representing HX Parking at the hearing to point out the signs the driver should have read.  There aren't any.  I have not doctored these photos in any way or deliberately not photographed visible signs.  There simply are no visible signs.   2.5.  Even if the driver had seen the signs, they would have been extremely confusing.  A car is normally allowed to be parked for five hours, yet after midnight this is changed to one hour.  This begs the question for how long a motorist entering at 10pm for example is allowed to stay.  Is it for five hours until 3am or until 1am?   2.6. The PCN/NTK states "period of parking 00:02:05".  It is common sense that a couple of minutes was needed to enter the complex, find McDonald's and find a parking space, before the period of parking began, so it is likely the car entered the car park before midnight allowing the driver to park the car there for five hours.   2.7.  Even if the driver had seen the signage - they did not - the mention of a £100 charge is literally the last word on the last line of a long board of text.   UNFAIR TERM   3.  In an interview with the local newspaper (exhibit 4) Ms Ellie Berkeley, HX PCN administration team leader, said: “The five-hour maximum stay prevents workers from close by abusing the land and parking there for free, without using the shops on site" which makes sense.   3.1.  This therefore begs the question of why this limit is cut by a massive 80% after midnight when the cinema and eateries are still open.  The driver indeed ate at McDonald's.   3.2.  Ms Berkeley continued: "Five hours is sufficient time to visit the cinema and also eat at a restaurant".  Certainly five hours are sufficient.  One hour is not.    3.3.  I would maintain this is an unfair term under the Consumer Rights Act 2015 part 2 section 62 (6) ""A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer".  Such a term has absolutely nothing to do with efficient management of a car park and everything to do with trying to catch diners or cinema-goers out and thus have an excuse to issue PCNs.   NO KEEPER LIABILITY   4. The Particulars of Claim do not clarify in what capacity they believe I am liable but state that the Defendant is “liable as the driver or keeper” of the vehicle. This appears to be “fishing” for liability.     4.1.  The Claimant's PCN does not comply with Section 4 of the Protection of Freedoms Act 2012.  POFA states that a parking period must be stated and it is quite clear that entering and leaving the car park does not constitute a parking period since some of the time the motorist is either driving around looking for a parking spot then leaving the spot and driving to the exit.  All that takes time.   4.2.  To transfer liability of the alleged debt from the driver to the keeper, in their PCN the Claimant must include the wording at Schedule 4 s9 [2][f] this "(if all the applicable conditions under this Schedule are met)" but they have not. That in itself makes it non-compliant.   LOCUS STANDI   5.  Looking at the contract with the landowner which the Claimant included when opposing my set aside application, the names of the signatories and their positions in their respective  companies have been redacted.  The Claimant is put to strict proof of who actually signed.   5.1.  There is no specific authorisation from the Client to allow court action in pursuit of non payers.   In section 11 which is like an addendum it states "the Company shall provide parking control" but does not state if that includes legal pursuit as well and it does not appear to be signed.   ILLEGAL SIGNAGE   6.  After checking, I have found out that there in NO planning permission granted for said signs, therefore making them illegal as lack of planning permission is a criminal offence under the Road Traffic Acts 1962 and 1991 and no contract can be performed where criminality is concerned.   6.1.  The Claimant is supposed to comply with the law and the IPC Code of Conduct and they have done neither.  The new government Private Parking Code of Practice draws attention as well to s14.1 [g]  "g) responsibility for obtaining relevant consents e.g. planning or advertising consents relating to signs."   ABUSE OF PROCESS   7. The Claimant seeks recovery of the original £100 parking charge plus an additional £60 described as “contractual costs and interest” or “debt collection costs”. No further justification or breakdown has been provided as required under Civil Procedure Rule 16.4.    7.1.  As part of the provisions of the Parking (Code of Practice) Act 2019, on 07/02/2022 a new Code of Practice was published by the government, designed to prevent these “rogue” traders from "ripping people off" (the minister's words) with extra charges, which have been deemed unfair (https://www.gov.uk/government/publications/privateparking-code-of-practice/private-parking-code-of-practice).    7.2.  Section 9 of the new Code of Practice, regulates the matter of recovery costs: “The parking operator must not levy additional costs over and above the level of a parking charge or parking tariff as originally issued” (exhibit 5).   7.3.  Even before publication of the government’s Code of Practice, Parliament intended that private parking companies could not invent extra charges. PoFA Schedule 4, paragraph 4(5) states that “The maximum sum which may be recovered from the keeper is the amount specified in the notice to keeper” which in this case is £100.    7.4.  Previous parking charge cases have found that the parking charge itself is at a level to include the costs of recovery ie: Parking Eye Ltd vs Beavis (2015) UKSC 67 which is the authority for recovery of the parking charge itself and no more, since that sum (£85) was held to already incorporate the costs of an automated private parking business model and the Supreme Court Judges held that a parking firm not in possession cannot plead any part of their case in damages. It is indisputable that an alleged “parking charge” penalty is a sum which the Supreme Court found is already inflated to more than comfortably cover all costs. The case provides a finding of fact by way of precedent, that the £85 (or up to a Trade Body ceiling of £100 depending on the parking firm) covers the costs of the letters. Since 2019, many County Courts have considered claims in excess of £100 to be an abuse of process leading to them being struck out ab initio. An example, in the Caernarfon Court in VCS v Davies, case No. FTQZ4W28 on 4th September 2019, District Judge Jones-Evans stated ‘’Upon it being recorded that District Judge Jones-Evans has over a very significant period of time warned advocates [...] in many cases of this nature before this court that their claim for £60 is unenforceable in law and is an abuse of process and is nothing more than a poor attempt to go behind the decision of the Supreme Court v Beavis which inter alia decided that a figure of £160 as a global sum claimed in this case would be a penalty and not a genuine pre-estimate of loss and therefore unenforceable in law and if the practice continued, he would treat all cases as a claim for £160 and therefore a penalty and unenforceable in law it is hereby declared [...] the claim is struck out and declared to be wholly without merit and an abuse of process.’’   7.5.  In Claim numbers F0DP806M and F0DP201T, Britannia vs Crosby the courts went further in a landmark judgement in November 2019 which followed several parking charge claims being struck out in the area overseen by His Honour Judge Iain Hamilton Douglas Hughes GC, the Designated Civil Judge for Dorset, Hampshire, Isle of Wight & Wiltshire. District Judge Taylor echoed earlier General Judgment or Orders of District Judge Grand, stating ‘’It is ordered that the claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''    7.6. The addition of costs not previously specified on signage are also in breach of the Consumer Rights Act 2015, Schedule 2, specifically paras 6, 10 and 14.   Statement of Truth    I believe that the facts stated in this Witness Statement are true.   I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
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This is an excellent site full of knowledgeable people given what I now know about PIP following my first thread.

 

 

Now my second and just as important. I'm not trying to get something for nothing, I just want to follow the rules and claim what the law allows me to benefit from.

 

 

As I said before, I was 65 in June 2014, my wife is 71.

We receive a mixture of income, AA (wife) DLA (me) private pensions (me) and each of us receives the SRP + we get a top up of Guaranteed Pension Credit of £69 a week and get help towards our mortgage (£101,000) with housing/interest payments of £70 a week.

 

 

As I have said, the only means tested benefit is Guaranteed Pension Credit of £139 a week.

 

 

The Guaranteed Pension credit was last reviewed following my 65th birthday in June 2014 and they have not set an Assessed Income Period owing to the fact that I told them that I may well get an inheritance within the next year.

 

 

Well the inheritance has been confirmed by the Executor/solicitor and I am to receive approx. £140,000.

 

 

We have an interest only mortgage and have to make a monthly top up over and above what the Pension people pay of £96 a month. The fixed rate deal finishes in 2017 then it goes onto the normal higher rate. The mortgage is due for repayment in 2020.

 

 

Without going into any great depth, We have not been able to save any money to repay this mortgage (ill health retirement, loss of money in an investment) Our intention was to sell in 2017 when the payments will go up which we will not be able to afford, The equity will be no more that £8000 after paying the mortgage off and paying all of the legal fees etc.

 

 

However, given that I am to get this inheritance, it will enable us to stay where we are and not have to rent. The only problem is that we need a ground floor bedroom due to my wife's disabilities. We have always had the intention to build a single storey extension to provide a double bedroom and a walk in shower room but it was a dream with not having any money.

 

 

To settle the mortgage we will have to pay £101,000 + 6% (early settlement charge) + legal fees which come to about £108,000.

 

 

The extension that we need that will make life so much easier will cost about £14,000.

 

 

Our car needs to be replaced as it is on its last legs so looking round for a similar model but much younger - 12 months old we would need about £18,000.

 

 

As we will need to keep our Pension Credit to continue to live off, does anybody see a problem in what we are thinking of doing? Does anybody have any alternative ideas?

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i cant see any difficulty in paying off mortgage and building extension - however £18k on car might raise questions

 

Many thanks.

 

 

I don't suppose that you have any links that refer to the law or guidance if we were to pay off the mortgage early and build the extension? As I understand it, you aren't allowed to settle ANY debt if it is not due for settlement, you have to keep on paying the monthly amounts, but then it is very confusing.

 

 

As for the car, we could get a Motability one up to a value of about £25,000!! But as we want to own the vehicle simply because I doubt very much that I will get the relevant award under PIP when it is my turn to be 'invited', no doubt when I am in late 60's/early 70's!!!!!

We need a specific type of vehicle for now and for the future (neither of us are going to improve in our health. It has to be high off the road so getting into and out off is easy, it has to be able to cope with the harsh winters we get round these parts (4x4 type of vehicle). Having the likes of an Astra would be of no use to us -both to get in and out of it & too low down to cope with mud/snow and water on the roads. £18,000 is cheap for a vehicle of this type. To get what we would like we would have to spend in excess of £25,000 for a recent decent second hand one.

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You will want to look at Regulation 21(2)(b) of the State Pension Credit Regulations 2002

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Notional capital

 

21. (1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to state pension credit or increasing the amount of that benefit

 

(2) Without prejudice to the generality of paragraph (1) a person who disposes of a capital resource shall be regarded as—

(a)depriving himself of it if the disposal was by way of gift to a third party;

(b)not depriving himself of it if the disposal was for the purpose of—

(i)reducing or paying a debt owed by the claimant; or

(ii)purchasing goods or services if the expenditure was reasonable in the circumstances of the claimant’s case.

 

http://www.legislation.gov.uk/uksi/2002/1792/regulation/21/made

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You will want to look at Regulation 21(2)(b) of the State Pension Credit Regulations 2002

 

 

Notional capital

 

21. (1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to state pension credit or increasing the amount of that benefit

 

(2) Without prejudice to the generality of paragraph (1) a person who disposes of a capital resource shall be regarded as—

(a)depriving himself of it if the disposal was by way of gift to a third party;

(b)not depriving himself of it if the disposal was for the purpose of—

(i)reducing or paying a debt owed by the claimant; or

(ii)purchasing goods or services if the expenditure was reasonable in the circumstances of the claimant’s case.

 

http://www.legislation.gov.uk/uksi/2002/1792/regulation/21/made

 

 

 

 

Thank you. I am so glad that I have found this web site. That link to the law is quite informative.

I have been worrying about this as I have been told that you cannot pay off any debt or mortgage early. So it seems that we can settle our mortgage in full, build the extension that we need and get a car that is both reasonable in cost (given the type it is) that is vital for our needs.

All in all that covers the whole £140,000 AND it will not affect what we get from Pension Credits albeit that the DWP will save on the housing/mortgage costs of over £3600 a year.

Great.

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[...] we need a ground floor bedroom due to my wife's disabilities. We have always had the intention to build a single storey extension to provide a double bedroom and a walk in shower room

 

In case you are not aware of it - You may well find you can claim VAT exemption for any building works that are for the benefit of a disabled occupant. For some adaptations, grants are also available, but these usually have qualifying conditions attached (usually a savings ceiling).

 

As an example, once my mother was registered blind, we could get a new bathroom built and not pay any VAT. Financial assistance was also available in the form of grants as long as her savings were below £23,000 and she remained in the property for a minimum of (I think) five years.

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In case you are not aware of it - You may well find you can claim VAT exemption for any building works that are for the benefit of a disabled occupant. For some adaptations, grants are also available, but these usually have qualifying conditions attached (usually a savings ceiling).

 

As an example, once my mother was registered blind, we could get a new bathroom built and not pay any VAT. Financial assistance was also available in the form of grants as long as her savings were below £23,000 and she remained in the property for a minimum of (I think) five years.

 

Wow, I never knew that!!!

 

 

I presume that the info about the VAT will be on the HMRC website. I'll have a look at it later. Thanks for the info - it could well mean a saving of £2800 which we could use for a well deserved holiday!

 

 

As for the grants, are you talking about grants from the council? If so do you know what they are called?

I'll also have a look at their website as well, both the local council and the county.

 

 

You have been a great help.

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Some info about VAT from HMRC: http://www.hmrc.gov.uk/vat/sectors/builders/disabled.htm (side note: You may also qualify for VAT relief when it comes to purchasing a car).

 

As for grants, you'd need to talk to the Adult Social Services department at the county council. Failing that, check to see if you have a local Age Uk office and have a chat with them. There is quite a bit of help and support out there, but it isn't always easy to find or access until you know who to ask. The level of support also depends on the disability and savings/income.

 

I only scratched the surface when I had to look into this.

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Age UK are very good on benefits advice too, and if memory serves me right, they may even visit you at home to do an assessment. They can help with all sorts of things so please do contact them.

 

What's Best for You?

 

 

The Consumer Action Group is a free help site.

Should you be offered help that requires payment please report it to site team.

 

Alliance & Leicester Moneyclaim issued 20/1/07 £225.50 full settlement received 29 January 2007

Smile £1,075.50 + interest Email request for payment 24/5/06 received £1,000.50 14/7/06 + £20 30/7/06

Yorkshire Bank Moneyclaim issued 21/6/06 £4,489.39 full settlement received 26 January 2007

:p

 

Advice & opinions given by Caro are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

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Just ask George Osborne how to avoid paying inheritance tax like he did :-)

Thank you. I have already considered what may happen when and if we need to have care in our older years as well as the problems that could arise with IHT when we leave this world. Our home will be placed in a Vulnerable Persons Discretionary Trust as soon as it is paid off.

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I'd make an appointment with citizens advice. I was of the understanding that inherited income would be taken into account for means tested benefits. As silly as it sounds, DWP may expect you to use the 140k to live off.

 

Thanks, that was my initial thought from the start.

However, the kind people on here have given me the link to the relevant legislation and after reading that, then the Decision Makers guide along with the stated case law, it does in fact appear that under the circumstances the DWP will not treat it as deprivation. However you do make a good point and considering the other advice I have had on here, I will be popping along to AgeUK and asking what they think.

 

 

To be honest the fact that it may be the case that there is deprivation, I cannot understand the logic of the DWP in stopping our income and making us live off the inheritance when we would have paid off the mortgage with it even if we weren't on benefits. How would the DWP expect us to live off it and guarantee a roof over our heads - oh yes, sell and rent of course. We will have to see what AgeUK have to say.

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  • 2 weeks later...

UPDATE

 

This is most confusing. We had a meeting yesterday with AgeUK and they can only refer back to the legislation and the DWP handbook. They agree with what has been said on here in that paying off a mortgage early out of the inheritance funds whilst in receipt of Guaranteed Pension Credit will NOT be treated as deprivation of capital. However they went one step further and considered the same scenario as if we were claiming another means tested benefit (JSA/ESA/IS) as well as Housing Benefit. Under those benefits the legislation and certainly the DWP handbook states clearly that if paying off a mortgage early it WILL be treated as deprivation.

 

 

Since coming home, I have researched this and can agree that the situation with Pension Credit seems to be a lot 'softer' than if you were claiming any other means tested benefit. Am I right? Can there be two totally different decisions depending on which means tested benefit you are claiming?

 

 

Personally I am a little worried that I am missing something here and that what is said in the DWP Pension credit handbook is wrong and that Deprivation of capital in respect of ANY means tested benefit should follow the SAME rules.

 

 

Does anybody have any idea please?

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That does appear to be the case, but to be honest I wouldn't trust the DWP to think the same way!! They do have a habit of not following what is in front of them in their handbook or the legislation. They seem to look for the best option for the government whether it is right or wrong.

 

I still can't see why Pension Credit rules should be any different from the rules relating to the other benefits - deprivation is deprivation which ever way you look at it. Put simply, I am trying to put the money into our home which is obviously an exempt asset thereby protecting our entitlement to Pension Credit. The knock on effect will also increase our net spendable income as we would no longer have to pay the mortgage top up every month - but yes I know I can't very well tell the DWP what I would like the end result to be!!

 

To protect ourselves against any eventuality and taking the worst case scenario, I think that we have two options.

The first is to use the inheritance as we intended and close down the Pension Credit claim. They can't very well ask questions or get involved with the matter if there is no valid claim in place. We could just about manage to live on what else we have coming in.

Or, close the Pension Credit claim and use the inheritance money to keep us going for as long as it is possible and not worry about paying the mortgage off.

 

I just don't feel comfortable in having a long drawn out argument with the Pension Service over the question of whether paying the mortgage off and the other things would or would not be deprivation when looking at the different rules of it for ESA/JSA/IS and PC

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Option one makes no sense. Why not keep the PC claim, pay off the mortgage and see what they say? If they don't argue deprivation, fine - no mortgage and you keep your PC. If they do claim it's deprivation and you really don't want to argue the toss, even knowing that they're wrong according to their own rules, then just accept their decision. What do you gain by preemptively closing the claim?

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Rather than closing down the claim why not pay off the mortgage and get the car then let them sort it out. In my experience it was not the DWP that were so bad but the local council. Of course that is just my experience so may be very different.

I do wonder on how they will feel about 18K on a car

Any opinion I give is from personal experience .

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Option one makes no sense. Why not keep the PC claim, pay off the mortgage and see what they say? If they don't argue deprivation, fine - no mortgage and you keep your PC. If they do claim it's deprivation and you really don't want to argue the toss, even knowing that they're wrong according to their own rules, then just accept their decision. What do you gain by preemptively closing the claim?

 

I presume that you are suggesting that in addition to paying off the mortgage and buying what we intended, we should then inform the Pension Service of what we have done? Alternatively should we do the above but NOT tell the Pension Service and wait until they find out and come back with a demand for a large overpayment of benefit?

If the former, would it not be better to put the money in our savings account and ask the Pension Service if what we propose doing to try to keep our benefit would not be deprivation?

If they say it would be, then we would be back with both of my options.

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Rather than closing down the claim why not pay off the mortgage and get the car then let them sort it out. In my experience it was not the DWP that were so bad but the local council. Of course that is just my experience so may be very different.

I do wonder on how they will feel about 18K on a car

 

Try finding a car that fits the criteria that we have. Diesel, at least 2 litres for our caravan, 4x4 due to where we live, height in getting in and out, good residuals, good reputation for reliability, cheap to service and maintain and cheap insurance (less than £200 fully comp).

What we would like is over £36000 new!!!

Even Motability cars are up to £25,000.

 

 

Yes I agree with your comment about the council, hence if we can pay off the mortgage, the property will be going into a Vulnerable Persons Discretionary trust. The council would then have one heck of a job trying to get at it if and when we may need help with caring in the future - as do most of our politicians!!

 

 

The idea in closing it down would shut down the argument. Leaving it running would lead to a protracted argument that I know that I don't have the ability or capability to go to court with.

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Could you not just cancel your claim when you get the money, then pay the mortgage off, extend the house, buy the car, then when you are down to an acceptable savings limit, reclaim ?

 

I agree entirely, and that is what I am seriously thinking of doing.

The only trouble is that when I do have to re-claim, they would be asking questions of where the money had gone as to them I would have got rid of it as quickly as I could so that a new claim could be put in.

They could very well determine that there would be a considerable amount of notional capital still existing which would stop my new claim before it got started. It will take no more than a few months to get rid of the entire £140,000!!

 

 

I have to laugh though, before I became entitled to this money we were more than happy with our little lot. The money hasn't brought us anything but aggravation except the opportunity to pay off our mortgage.

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I presume that you are suggesting that in addition to paying off the mortgage and buying what we intended, we should then inform the Pension Service of what we have done? Alternatively should we do the above but NOT tell the Pension Service and wait until they find out and come back with a demand for a large overpayment of benefit?

If the former, would it not be better to put the money in our savings account and ask the Pension Service if what we propose doing to try to keep our benefit would not be deprivation?

If they say it would be, then we would be back with both of my options.

 

Yes, I'm suggesting that you tell them. It doesn't really matter whether you do it as a fait accompli or whether you stick the money in a safe account and talk to them first since according to the regs posted above and the DWP guidance handbook it's not deprivation but, if you're really worried, speak to them first.

 

I don't see why preemptively closing your claim makes any sense.

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Yes, I'm suggesting that you tell them. It doesn't really matter whether you do it as a fait accompli or whether you stick the money in a safe account and talk to them first since according to the regs posted above and the DWP guidance handbook it's not deprivation but, if you're really worried, speak to them first.

 

I don't see why preemptively closing your claim makes any sense.

 

Thanks

For the sake of clarity I will telephone them in the morning and see what they say, reporting back here for further advice or comments.

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