State Pension (Non-Contributory) - Case 14

Background:

The appellant was self-employed operating out of a business premises which he rented to his son some years ago when his son took over the running of the business. It was his intention to transfer ownership of the property in question to his son when he reached pension age. However, he discovered he could not do so as the property was not registered in his name. He had been assessed with the capital value of the property by the deciding officer as a result of which his entitlement to a state pension non-contributory had been reduced. The appellant appealed against the deciding officer’s decision.

Oral Hearing:

The appellant was accompanied at the oral hearing by his wife and son and also by his accountant. The social welfare inspector who investigated the pension claim also attended having been summoned by the Appeals Officer.

The social welfare inspector reported on her investigation which disclosed that the property in question had been purchased by the appellant some 30 years previously on the basis of a deposit and annual instalments over three years which were paid to the appellant’s solicitors. It transpired that the money in question was not passed on to the vendor until 1990 at which point the solicitor in question provided letters of undertaking to the appellant’s bank that the property would be properly registered in the appellant’s name. Bank loans were advanced to the appellant on foot of those undertakings. The appellant was confident, therefore, that the issue of his title to the property had been resolved. The solicitor in question was struck off some years later and it was only when the appellant began the process of transferring the property to his son that he became aware that his title to the premises was incomplete.

The appellant then instructed his solicitors to rectify the situation by having proper title secured. Evidence was produced by way of solicitors letters to the effect that documents had been lodged for several years with the Land Registry in connection with the registration of the appellant as owner of the property and that contracts for the transfer of the property had been drawn up but were awaiting certification of the appellant as owner before being executed. The appellant also indicated that there was correspondence between his solicitor and his bank going back to the time of the original purchase which would confirm that the solicitor in question undertook to have proper title registered and gave assurances to that effect to the bank.

References were made during the oral hearing to Land Registry folios in respect of the property and, subsequent to the oral hearing, the appellant submitted further copies of folios for the information of the Appeals Officer. The Appeals Officer was unclear about the relationship between the different folios submitted but was satisfied that it did not affect the issue under appeal.

The appellant’s son also gave evidence confirming that he had been operating a business from the property in question for several years and that it was his livelihood on which he was dependent to maintain his wife and family.

Consideration of the Appeals Officer:

The Appeals Officer noted the legislative provisions governing the application of the means test for state pension non-contributory which provide that the pensioner should be assessed with the capital value of property where he or she is the owner of the property which is not personally used or enjoyed and where he or she is free to sell the property on the open market. There should be no impediment to executing a sale of the property and where one exists the appropriateness of applying a capital value assessment should be examined.

While the appellant maintained that he was the owner of the property, he was not at the time of the appeal in a position to prove that from a legal perspective. That position had precluded him from executing a transfer of the property and would similarly prevent a sale of the property until the matter had been rectified. There was no dispute about the appellant’s wish to transfer ownership of the property to his son who was already operating a business from it and was dependent on it for his livelihood. In such circumstances, it would be unreasonable to conclude that the appellant could realise the capital value of the premises by selling it on the open market.

The Appeals Officer noted that the appellant was unfortunate in that his title to the property was not properly registered at the time of purchase and he was satisfied from the evidence adduced that the appellant was the victim of lax practice at the time of purchase as a result of which he found himself in a position not of his own making. It was also clear from the evidence adduced that the parties involved were doing all within their power to rectify the situation and that a proper transfer of the property to the appellant’s son would follow in the fullness of time. The Appeals Officer felt that it would have been fair to say that, had the appellant been properly registered as the owner, he would be in a position to execute a transfer of the property which would in all probability have been accepted by the Department of Social and Family Affairs for pension purposes.

In the light of all the evidence, including that adduced at the oral hearing, the Appeals Officer concluded that assessing the appellant with the capital value of the property was not appropriate and that more time should be afforded to complete the registration of the appellant’s title and to execute a transfer to his son. The case should be kept under review to monitor progress in that regard.

Outcome:

Appeal allowed.