Case Studies » Other Cases » Estate Case - State Pension (Non-Contributory) - from Annual Report 2015 (ef: 2015/24)
Background: The deceased had been awarded pension in 1998 and had been in receipt of Disability Allowance prior to attaining pension age. At the time of the pension claim, he had declared a credit union account with a balance of some €1,900. His entitlement was reviewed in 2011 when he denied having any capital in the bank. Following his death, an investigation by a Social Welfare Inspector indicated undisclosed capital of €59,000 and his means were assessed retrospectively to take account of this. As a consequence of the revised means assessment, an overpayment of some €38,000 was calculated and a demand for payment was made against the estate. His sister, the executrix of the estate, made an appeal against the decision and solicitors acting on her behalf questioned the amount of the overpayment. It was submitted that the deceased never had capital in the [named] bank as his sister had provided this money for the upkeep of his residence.
Oral hearing: The sister of the deceased attended and was represented by her solicitor. The Deciding Officer attended at the request of the Appeals Officer, while the Social Welfare Inspector had moved to other duties and was unable to attend.
The solicitor in the case sought to provide some background, referring to the sister of the deceased, the fact that she had worked for some years in the United Kingdom before returning to the family home. He referred to the capital held at a [named] bank, and said that this had always belonged to his client and submitted that an affidavit from 1996 confirmed this. It was submitted that she had intended that the funds be used for the upkeep and renovation of the family home so that it would remain habitable until she returned to live there. It transpired that her brother had proved unable to maintain the house and evidence was produced showing that expenditure in the order of €230,000 had been incurred in the previous year for extensive renovations.
A copy of the grant of probate was submitted and it was pointed out that the net value of the estate came to just €20,000. It was submitted that the Department had misrepresented the ownership of the funds assessed and that the deceased had no interest in those funds. He had not been able to fulfil the purpose for which the capital had been set aside and he had never accessed the bank account at issue.
The Deciding Officer explained the assessment: the deceased had been assessed with capital held in his own name and a half share of the capital held in a joint account with his sister. She noted that there was evidence of transfers of funds between the accounts which suggested that they had been managed. In response, the deceased’s sister pointed out that her brother had received no State payments until he was aged 49 years and she had enquired about his entitlements. At that stage, he had received a Disabled Person’s Maintenance Allowance (subsequently Disability Allowance). She confirmed that she had managed the accounts and had moved the capital so that the best yield could be achieved.
His sister described the deceased as having a learning disability and said that he had not been capable of managing things. They had another brother who died in 1995 and since then she had had to return home every 6 weeks. She recalled that the deceased had been duped by individuals purporting to do maintenance work and, on one occasion, had withdrawn €2,000 from his credit union account to pay them. She said that he had been vulnerable to such approaches and, after that, she had warned the bank and credit union to be aware of him seeking to withdraw funds.
The Deciding Officer conceded that the Department had not implemented its review policy over the years in question but said she believed that a reminder of the qualifying conditions had issued around the year 2000. It was accepted that there was no record of such a reminder on file. The Deciding Officer agreed there could be circumstances when a joint account was assessed in full against one of the named account holders. She went on to say, however, that she believed that the deceased could have accessed the account had he wished to. She noted that the Social Welfare Inspector had reported that there had been no evidence to indicate that the capital in the joint account was not the property of the deceased.
His sister insisted that the deceased did not have access to the [named] bank account and she said she objected to the Department seeking to recover what was, in effect, her savings. In conclusion, her solicitor reiterated the assertion that the deceased had no control over the funds at issue, the capital was the property of the deceased’s sister and he had been a party of convenience only and had never sought to access the account. It was submitted that it was wrong therefore to attribute those funds to him.
Consideration: The Appeals Officer considered that there was no doubt as to the amount of capital held; the balances had been verified. What was in doubt, however, was whether one half of the money held in a joint account should have been assessed as capital held by the deceased and therefore a notifiable increase in his means which he had failed to declare. He examined the question as to where the funds came from. The evidence indicated that the deceased had been awarded a Disabled Person’s Maintenance Allowance sometime in the 1980s, consistent with his sister’s account of him and her reference to his intellectual disability. The Appeals Officer noted that the Social Welfare Inspector made reference to the actual ownership of the funds but had dismissed his sister’s assertion that the funds in the joint account were not the property of the deceased. The Appeals Officer considered that, in circumstances where the deceased had no income other than a social welfare payment, evidence was required to establish that he had access to the funds at issue and that he had accessed those funds. He noted that there was no evidence of income from any source apart from his pension and whatever his sister had provided him with. He noted also that there was no evidence that he had managed the account from the nursing home where he spent the last three years of his life, yet significant transactions had taken place during those years and his sister had confirmed that she managed the funds. In the circumstances, he concluded that it was appropriate to apply the discretion which is permitted in the legislation and to make the decision effective from a current date only with no retrospective effect.
Outcome: Appeal allowed.