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HOWLER

Marstons. Capital Contribution Order

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Could we sell the property to our children and pay them rent? 

Would that stop em.?? 

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No need, do as I say. that letter needs to go to the Chief Exec. No way, under any circumstances on this planet should they be going after your wife.  

 

 

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Along with the relevant legislation I have already posted in post #51...further to that....

 

2. Whose Resources are to be Assessed?

 

2.1 Individual and Partner 1. As well as the resources of the individual, the resources of his or her partner are assessed and taken into account. 2. A partner is defined in regulations as: (a) A person to whom the individual is married or in a civil partnership, and is not separated due to a breakdown of the relationship which is likely to be permanent; (b) A person with whom the individual lives as a couple; or (c) A person with whom the individual ordinarily lives as a couple, and from whom they are not separated due to a breakdown of the relationship which is likely to be permanent. 3.

 

This means that there must be a breakdown in the relationship that is likely to be permanent (i.e. at least one of the parties considers the relationship to be at an end) rather than mere physical separation if the partner’s means are not to be aggregated with the individual. Therefore a couple who is physically separated owing to financial or practical reasons, e.g. job location or the fact that one of the parties is in prison, hospital, residential care etc. must be aggregated. 4. Where it is advised that a couple are married according to English law but are not planning to live together until they have undergone their traditional cultural ceremony, you must aggregate their resources in the assessment. 5.

 

A couple do not have to be married for this procedure to apply; the aggregation rule applies to anyone living as a couple including partners of the same sex. Therefore the term partner includes a spouse, civil partner or anyone with whom the individual lives or ordinarily lives as a couple. 6. The means of the individual's partner are not included in the financial determination in the following circumstances: (a) Where the partner has a contrary interest in the dispute in respect of which the application is made. Means will therefore not be aggregated where the partner is the opponent or the potential opponent in the proceedings. The most obvious example is in a matrimonial dispute. Note:

 

It is not strictly speaking necessary for a partner to be the opponent in the proceedings to have a contrary interest. However, if he or she is not the opponent, the establishment of the contrary interest is more difficult. One indication is where the parties are separately legally represented in a dispute. This is not an exhaustive test since, for example, parties might be legally represented if there is only a potential conflict of interest rather than an actual one. Further enquiries may have to be made in cases of doubt and it will be a question of fact in each case whether a contrary interest exists. The guidance note on the financial application forms advises applicants not to include their partner's resources where the partner is the opponent in the proceedings. (b) Where the individual and partner are separated due to a breakdown in the relationship which is likely to be permanent.

 

In general, this will involve the parties living in separate locations. However, this may not always be the case. It is possible for former partners to live separate and apart (which in the context of matrimonial law refers to a breakdown in the relationship) in the same household. This would be the case if they regarded their relationship to be permanently at an end and no longer pooled their financial resources. An example of this would be where a couple have decided to split and have separated their finances and are now simply waiting for the house to be sold before going their separate ways. As is made clear by the definition of a partner in paragraph 1(c), even if they are physically separated (i.e. they live in separate houses) this does not necessarily mean that their means should not be aggregated; the couple must be aggregated unless they are permanently separated for the purpose of the regulations. Note:

 

2.2 Assets Belonging to Others 1. Regulation 16(5) provides for certain other circumstances in which assets belonging to persons other than the individual can be taken into account. There are two scenarios: (a) where another person is, or has been, or is likely to be substantially maintaining the individual or his partner. (b) resources from another person have been, or is likely to be, made available to the individual or his partner.

 

'Person' for these purposes includes a company, partnership, trust etc. 2. If either of the above scenarios apply, the caseworker has power to treat all or part of the resources of the other person concerned as belonging to the individual. 3. It is in the caseworker's discretion as to how much of the resources of the other person should be treated as belonging to the individual and the following guidelines should be followed. 4. The caseworker can assume, unless compelling evidence is provided to the contrary, that assistance given to and resources made available for the individual in the past will continue to be given/made available in the future and the assessment can be carried out on that basis.

 

This situation will most commonly arise where the individual has been supported by a wealthy family, even though the individual himself has no assets. As a rough guide, the caseworker should look at what financial support was given within the 12 months before the application, or from the date of commencement of the litigation if earlier. 5.

 

Note that the resources belonging to the other person should be assessed in accordance with the normal rules of assessment. If that other person refuses to co-operate then the caseworker has power to estimate the value of such resources. Evidence can be called for from the individual to show the amount of money either given to or received from the other person in the past. 6. Any payments made direct to third parties on behalf of the individual can also be included as income or capital by virtue of Regulation 16(5)(b). This could be, for example, mortgage payments made direct to the lender by an expartner, to pay the mortgage on the former matrimonial home where the individual is residing. This would count as maintenance income. Or, for example, a parent has paid off a credit card debt of £10,000 direct to the lender on behalf of their adult child or has purchased a car on the adult child’s behalf. This would count as capital.

 

 

 

 

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The bottom line is if they were allowed to place a charge...they would have by now......as already advised Marstons cannot place a charge...only the LAA.

 

Read between the lines they are passing you off between them...sit tight pay nothing.....ignore......unless you receive anything from the LAA or the Land Registry.

 

Andy

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I agree, I think you should write to the Exec as directed though, and demand your money back you've paid already.

 

Make them apologise and give the money back.  You are morally and legally in the right here. They are likely breaking their own code of practice by threatening a disabled person, and deserve to be had up. It's almost unbelievable to me that an employee could knowingly sneer at, and ignore a disabled, vulnerable person, and to threaten them, knowing the facts.  

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Posted (edited)

I don't want to bang on pointlessly about this and if anyone thinks I'm misleading HOWLER, please, please tell me.

 

1.  I agree with what London1971 suggests HOWLER should do, but...

 

2.  Everything I've read suggests that a charge cannot be put on the property anyway.  So why not just point that simple fact out to the LAA?  (And tell them to **** off).

 

This is from one solicitors' website: 

 

"Following this change in the legislation, Legal Aid is now to be considered as a loan and not a gift. If as a result of receiving legal aid assistance you gain property that you did not own previously, you will have ‘won’ or ‘recovered’ it. If you keep some property that someone had attempted to take from you, you will have ‘kept’ or ‘reserved’ it. Some examples include a house, shares, life policies or payment of compensation.

If the result of your case is that you recovered or preserved property or a sum of money, and some or all of your legal costs are not met by your opponent, you may be required to pay back some or all of the costs of your case. This is called the ‘Statutory Charge.’ This Statutory Charge is likely to apply in cases involving money or property such as divorce and ancillary relief or personal injury cases."  [My bold].

 

https://www.worthingtonslaw.co.uk/legal-aid-the-statutory-charge-explained/

 

 

Now it doesn't say so explicitly but that implies to me that a charge can be applied if the legally aided person "wins" and they either recover or gain property that was in some way subject to the proceedings.  But that doesn't apply in HOWLER's situation, does it?

 

I don't know if my interpretation of this is correct or whether it only applies to civil rather than criminal cases (the legal aid part of the .gov.uk website appears to be useless) but it does appear to be in agreement with the legal aid guidance linked to previously.

 

Everything else I've read tends to suggest that the aided person must have kept, gained, won or recovered property or money in some way as a result of the proceedings before a charge can be applied.  Is that HOWLER's position?

 

As I said, if I've got this wrong or I'm misleading HOWLER or I'm giving him false hope, please somebody tell me (and him).

 

Otherwise go with a letter as suggested by London1971.

 

 

 

Edited by Manxman in exile
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I agree the question should be asked if it was so easy to put a charge on his wife’s property, why go to a bunch of chancers like Marston’s to do it for them, and why wait this long.

 

Judging by how his case worker at the LAA potentially opened their organisation to a whole world of trouble. They really don’t know what they are doing.

 

Still, I say howler needs to go for the neck, make a huge complaint to the Chief and demand his hard earned cash back.
 

 

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4 hours ago, London1971 said:

 

 

Still, I say howler needs to go for the neck, make a huge complaint to the Chief and demand his hard earned cash back.
 

 

 

Can't argue with that.  Nothing to lose.

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Oh dear 

 

Al this legal stuff does nowt for me. Can't understand a word. 

 

But am very impressed by the stuff you guys turn up. 

So are we in agreement with we go to top dog and complain again. C/w copies of letters. ¿???????? 

Thanks again guys. 

 

 

 

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Yes .

 

Write to top person as directed.

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Do as suggested by London1971 and write that letter.

 

I think the view here is that if the Legal Aid Agency was able to put a charge on your property then they would already have done so and not involved Marstons.  Check back a page or so and I think the advice was not to worry too much about it unless they (or the Land Registry) write to say they are actually going to do it.  (Of course, if they do do it, there's not much you can do about it anyway as I don't suppose you've got £106k spare).

 

If you actually want to do something other than wait and see what happens, write as London1971 says.

 

If it makes you feel any better, I ought to be able to find this stuff out and understand it, but it's too complicated for me.  That's why I've asked if they can put a charge on in your circumstances because I read it that they can't - but I'm as confused as you and don't fully understand it.

 

PS - I am pretty certain that selling or transferring the flat to your kids won't be a solution!

 

(And as London1971 says, perhaps you ought to try to recover what you've already paid?)

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@Andyorch 26/05/2020: confused . com

I thank you very much for your help but this just loses me i have no idea how to follow this. cheers

 

@london1971 26/05/2020: confused . com

Done today !st Class Recorded

Thanks again guys

I really dont know where id be without your help

THANK YOU ALL. 

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You are welcome, let's see where this course of action leads! Report back when you receive a reply.

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Hi guys

No letters recieved as yet,  the only update is the gaffer now knows about this demand , im sure you can imagine the crap really hit the fan.

 

The only thing i have found out is the LAA have a complaints department and a complaints system thats supposed to be followed. OOOPS 

I suppose im not alone in this predicament.

 

Had i realised it was going to come to this id have told the lawyers to do one. 

 

Keep safe ya'll .

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https://www.gov.uk/government/organisations/legal-aid-agency/about/complaints-procedure

 

What do i do if anything  ????

 

Oh and BTW i almost forgot , forgetting lots lately, thats why i went to the docs.

I have just this week been diagnosed with Brain Calcification , whoopee on top of all this. Side effects are unbelievable, check it out.

Seems ive had it for a number of years , it explains lots of problems ive had.  

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Just leave it, until you get a response, forget their complaints department for now. 

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so:

 

Quote

However, I reiterate that the LAA will not seek to enforce your CCO against the property in your wife’s name by way of charging order or otherwise. Your wife’s property is not at risk, and I sincerely apologise for any distress caused to her by not making this clear in our previous responses to you.
As CCOs are calculated and issued in accordance with specific regulations there is no discretion available to me to withdraw the CCO or calculate the amount owed on a different basis. However, in view of your and your wife’s current circumstances I would invite you to apply for a review of your CCO on hardship grounds.

 

off you go and apply....

 

as for marstons enforcing ANYTHING , they CANNOT.

they are NOT and CANNOT be bailiffs in this situation as explained before

they are merely operating as a powerless Debt collection agency with ZERO legal powers

 

pers i'd be writing back to janet their supposed know it all CEO... and telling her so.... as that is a very WRONG for her to state and  use the worf enforcement in her letter...implying a mere DCA can enforce anything with regard to a CCO. or any demand for any supposed LAA debt contribution.

 

 

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please don't hit Quote...just type we know what we said earlier..

 

if everyone stopped blindly paying DCA's tomorrow

the biggest financial industry in the UK, DCA;s would collapse overnight.

 

 

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Yup, I’d call this a win!

 

But go and apply anyway. 

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I have to as its not over yet. 

Thank you all 

I will come back again soon. 

 

 

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This should make you feel a lot better. Enjoy the weekend !!

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Well done Howler!  Reading between the lines of her response and the number of times she apologises for causing any distress etc, you must have sent a really good letter!

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I think it was my wife's letter that did the trick. 

She wrote after me. 

 

Thanks guys without all your help I could not have got this far.

I was at a dangerous stage. 

It's a great result, a big weight off, but still further to go. 

THANK YOU SO MUCH. 

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You're welcome, Howler. Please keep us posted. :)

 

HB

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Illegitimi non carborundum

 

 

 

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