The LAA have revoked a certificate for a client who is on a passported benefit (ESA) but it is paid into his daughter's bank account as he doesn't have an account. It was an emergency certificate. The LAA are now asking for a copy of the daughter's bank statement to prove that he hasn't got any capital. Although we have written with the details (which seem quite straightforward to us), the LAA are not budging and have revoked the certificate (which has counsel's fees of £500!!). As far as we're concerned, her bank statement proves only that his ESA is paid into her account, but any capital would be hers. Any thoughts on how to appeal this?
It sounds as if they are arguing that the bank account is functioning in effect as a joint bank account and the capital in it must therefore be jointly shared. Is that correct?
If so then I guess you have to prove that it isn't, which is easier said than done. If you divide the capital in two does this help for eligibility purposes?
Alternatively can you show that your client has not regularly been provided with any money from the account ( other than his ESA money) and the account has been used only for the daughter's own requirements- for example direct debits are only for the daughter's house/ mobile etc and not for the client's?
If the reason why the client has no bank account is connected to his mental health and his incapacity to manage one then that might help your case as well.
Post by Colin Henderson on Nov 15, 2013 11:08:10 GMT
We've had this issue as well - it's quite common for financially-excluded clients without bank accounts or with overdrawn accounts they can't use to use the bank accounts of family members for receipt of benefits. If the family member does not live with them or support them financially in any other way then get a letter or signed statement from them saying so and cross-referring to the bank statement showing how the money comes in and goes out (usually in cash). This difficulty always comes if the relative doesn't co-operate.
Revocation seems a bit harsh - these queries are usually raised after emergency is granted but before substantive and you are given some time to jump the hoops. Given the pantomime of capital assessment these days, frankly I avoid incurring disbursements until we have the substantive cert - most emergency steps can be done in-house and it's risky otherwise. But we're all learning...
I'd report the issue to LAPG - they are collating examples of this type of thing - see my other post on this in the legal aid section for the guidance issued so far.