What if I just spend all of my personal injury payment? 5

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1 INDEX Page number A. WHAT IS A PERSONAL INJURY TRUST? 1 B. ESTABLISHING WHETHER A TRUST IS REQUIRED What is community care support? 1 Which benefits are means-tested? 1 Do I need to become the beneficiary of a personal injury trust? 1 How does capital generally affect entitlement to means-tested benefits? 2 How does capital generally affect entitlement to tax credits? 2 How does capital generally affect entitlement to community care support? 3 Will my personal injury payment definitely affect my entitlement to meanstested benefits 3 and / or community care support? Means-tested benefit claimants aged under pension age Recipients of community care services / accommodation Means-tested benefit claimants aged over pension age Tax credit claimants What if I just spend all of my personal injury payment? 5 C. TRUSTEES What is a trustee? 6 What do trustees do? 6 How many trustees should I have? 6 Who can be a trustee? 6 D. AFTER A PERSONAL INJURY TRUST IS SET UP How can my trust funds be invested? 7 How can I access my trust funds once the account has been set up? 7 Can I pay other money into the trust bank account? 7 What are the tax requirements in respect of the trust funds? 7 Do the trustees have to act on my wishes? 8 What happens if I get divorced? 8 What happens in the event of my death? 8 E. PROCEDURE AND FEE How much does it cost? 8 What happens next? 9 When will I be able to access the trust funds? 9 SOURCE LEGISLATION 9

2 A. WHAT IS A PERSONAL INJURY TRUST? A personal injury trust is a legal arrangement whereby trustees hold a personal injury award for a beneficiary, to ensure that the beneficiary: retains their entitlement to means-tested benefits, and / or minimises their contribution towards the costs of community care support provided by their local authority social services department. This is because regulations state that personal injury awards held in this way are to be disregarded when assessing entitlement to these benefits and contributions towards community care support costs. B. ESTABLISHING WHETHER A TRUST IS REQUIRED What is community care support? Community care means providing the right level of intervention and support to enable people with health problems and disabilities to achieve maximum independence and control over their own lives. Following a needs assessment by your local authority social services department, this can be the provision of a carer, or direct payments to enable you to employ a private carer. It can be adaptations to your home, or the provision of supported accommodation. This is not an exhaustive list. Our benefits and trusts department is happy to provide advice about whether something else amounts to community care support. Which benefits are means-tested? For people aged under pension age, means-tested benefits are: Income Support, income-based JSA, income-related ESA, Housing Benefit and Council Tax Benefit. From April 2013 onwards, there will also be a phased introduction of Universal Credit, which is to replace means tested benefits and tax credits fir people aged under pension age. The means-tested benefits for people aged over pension age are: Guarantee Pension Credit, Housing Benefit and Council Tax Benefit. NB The rules outlined in regulations in respect of how personal injury payments are treated when assessing entitlement to means-tested benefits are different for pensioners see below. Tax credits are means-tested in a different way to benefits see below. Do I need to become the beneficiary of a personal injury trust? If you are: below pension age and in receipt of means-tested benefits, or any age and in receipt of community care support, or likely to fall into either of these groups imminently, it may be advisable for you to set up a personal injury trust. 1

3 Entitlement to means-tested benefits is assessed with entitlement to the claimant s income and capital, and that of their partner (if they have one). It is not affected by any capital their children have. In contrast, the level of a community care recipient s contributions towards the cost of the community care support provided by the local authority is only assessed with reference to the recipient s own income and capital, i.e. their partner s means are not taken into account. Your interim payment or final settlement in respect of your personal injury case is a type of capital, and it may therefore lead to your means-tested benefits reducing or stopping. It may also lead to your contributions towards the cost of your community care support increasing. This depends upon the level of the payment you are about to receive in respect of your personal injury, what other capital you have, and whether this is the first payment the defendant in your personal injury claim has made to you, or on your behalf, for example to meet medical costs. People aged above pension age and tax credit claimants do not necessarily need to set up a personal injury trust to prevent their personal injury payment affecting their entitlement to these benefits / tax credits, although they may still want to for peace of mind. (See below). How does capital generally affect entitlement to means-tested benefits? A claimant s capital is usually simply the amount in their bank / building society account(s), but it can also include any property they own other than their main home, and certain other assets and investments. Our benefits and trusts department is happy to provide advice about what else counts as capital. The general capital rules for means-tested benefit claimants aged below pension age 1. The first 6,000 that the claimant has (and their partner, if they have one) is disregarded, whatever its source. 2. Any capital they have between 6,000 and 16,000 is treated as generating tariff income of 1 per week on every 250 (or part thereof) above the 6,000 level, and their income means-tested benefit (i.e. Income Support, income-based JSA or income-related ESA) is reduced by a corresponding amount. If they retain any entitlement to their income means-tested benefit after tariff income has been applied, they continue to be passported to full Housing and Council Tax Benefit. However, if tariff income negates their means-tested income benefit, tariff income is then applied to their Housing and Council Tax Benefit assessment, thus reducing these benefits as well. 3. If they have capital in excess of 16,000, the claimant is not entitled to means-tested benefits. The general capital rules for means-tested benefit claimants aged over pension age 1. The first 10,000 that the claimant has (and their partner, if they have one) is disregarded, whatever its source. 2

4 2. Any capital they have over 10,000 is treated as generating deemed income of 1 per week on every 500 (or part thereof) above the 10,000 level, and their income means-tested benefit (i.e. Guarantee Pension Credit) is reduced by a corresponding amount. Again, if they retain any entitlement to Guarantee Pension Credit after deemed income has been applied, they continue to be passported to full Housing and Council Tax Benefit. However, if tariff income negates their Guarantee Pension Credit, deemed income is then applied to their Housing and Council Tax Benefit assessment, thus reducing these benefits as well. How does capital generally affect entitlement to tax credits? Working Tax Credit and Child Tax Credit are not affected by capital per se. However, they are generally affected by actual taxable income generated by capital. Tax credits are assessed with reference to annual income. The first 300 of taxable income generated by capital is disregarded each year. Any remainder is then included in the claimant s overall income when assessing entitlement, leading to a tapered reduction in the tax credit award. How does capital generally affect entitlement to community care support? The local authority social services department has a duty to provide any services and / or accommodation anyone who lives within its boundaries is assessed to require. However, it will then undertake a means assessment, to ascertain whether they will be expected to contribute towards the costs. The capital rules are as follow: 1. The first 14,250 that the person has is disregarded, whatever its source. 2. Any capital they have between 14,250 and 23,250 is treated as generating tariff income of 1 per week on every 250 (or part thereof) above the 14,250 level, and their income is then increased by this amount (and thus their expected contribution increases) 3. If they have capital in excess of 23,250, they will be expected to meet the full costs. Will my personal injury payment definitely affect my entitlement to meanstested benefits and / or community care support? Means-tested benefit claimants aged under pension age If your interim payment or final settlement is the first payment made by the defendant in your personal injury case (including payments made to other people or organisations as part of your claim, for example in respect of medical expenses), then regulations state it will be disregarded when assessing your entitlement to means-tested benefits for up to fifty-two weeks. If you are likely to have spent this payment within fifty-two weeks, or at least brought it below the aforementioned 6,000 level, you do not therefore necessarily need to set up a personal injury trust. However, you will need to ensure that you only spend it on things that the authorities that administer your benefit claims will deem reasonable, to avoid 3

5 the application of the deprivation of capital and notional capital rules. (See below). You should also note that only the first payment is disregarded under the fifty-two week rule. So if this is an interim payment, and you are likely to receive further interim payments or the final settlement in due course, you may need to start the process to set up a trust a few weeks before the next payment is due, to avoid that payment being taken into account and benefits reducing / stopping at that stage. If your interim payment or final settlement will not take your total capital to above 6,000, then it will not affect your entitlement to means-tested benefits, and you do not need a personal injury trust at this stage. However, if this is an interim payment, you may need to set one up in due course when you receive a further payment, depending on the level of that payment. In circumstances where this payment will take your total capital to above 6,000, it will lead to a reduction in entitlement. If it takes this total to above 16,000, it will lead to benefits stopping. If this is the case, then we recommend that you set up a personal injury trust now. This will prevent your personal injury payment causing your benefits to reduce or stop, as regulations state that payments derived from a personal injury are disregarded as capital when assessing entitlement to means-tested benefits for people aged under pension age, if they are held on trust. Recipients of community care services / accommodation Regulations state that the capital disregard rules in respect of personal injury payments when assessing contributions towards residential community care costs follow those for Income Support, subject to the difference in the lower and upper capital limits, and the fact that a partner s means are not taken into account. This means that your payment will be disregarded for up to fifty-two weeks if it is the first payment made by the defendant in your personal injury case. Also, that if it will not take your total capital above the 14,250 level, it will not affect your contributions. However, you should note that if this payment will take your total capital above 14,250, it will lead to an increase in your expected contributions towards your community care costs. Further, that if it takes your total capital to above 23,250, it will mean you are expected to meet the full costs. If this is the case, then we recommend you set up a personal injury trust now, as this will prevent your personal injury payment increasing your expected contributions. This is because regulations state that payments derived from a personal injury are disregarded as capital when assessing the level of contributions someone is required to make towards their community care costs. The rules regarding assessing contributions towards domiciliary community care costs are not as clear cut. It is not specified in legislation that the 52- week rule and the personal injury trust disregard rule definitely apply. 4

6 However, it is arguable that these rules should apply, as local authorities have a broad discretion as to what capital to take into account. There is a strong argument that these rules should apply in the same way as they do in respect of residential care charges, as there is no apparent justification for them not doing. We would be happy to discuss this issue further with you if you are a recipient of domiciliary care. Means-tested benefit claimants aged over pension age Regulations simply state that personal injury payments are disregarded as capital when assessing entitlement to means-tested benefits for people aged over pension age. This means pensioners do not necessarily need to set up a personal injury trust to prevent their payment leading to their benefits reducing or stopping. However, the personal injury payment will need to be kept separate to the pensioner s other finances, so that it is clear to the authorities that administer their benefit claims which sums are to be disregarded. Setting up a trust and associated bank account is one way of doing this. If you (understandably) do not wish to incur a fee for setting up a trust, we do strongly advise you to keep your personal injury payment separate by another means, for example by opening a separate bank account that just holds those funds. It is notable that some pensioners may prefer to set up a trust to hold their personal injury payment for other reasons, for example because they want the protection of two (or more) trustees vetting the decisions they make as to how to spend the funds therein, or dealing with tax or investment issues. If you feel this may be applicable in your case, our benefits and trusts team can refer you to one of our financial advisers to discuss what other benefits there may be to you in setting up a personal injury trust. Tax credit claimants Regulations simply state that income generated by capital that is derived from personal injury damages is disregarded as income when assessing entitlement to tax credits. In other words, it is not stipulated that the capital needs to be held on trust. However, as with pensioners, the capital will need to be kept separate from the tax credit claimant s other capital, so it can be clearly demonstrated what income from what capital should be disregarded. One way of doing this is for the capital to be placed in a trust account, and then investments made in the name of the personal injury trust. If the claimant does not separate this capital out in this way, it is important that they keep a clear paper trail of which investments were made out of the personal injury payment. It should also be noted that the tax credit disregard only applies if the personal injury damages payment is awarded by the court. If it is not, because proceedings are never issued or because the claim settles out of court, then income generated by investments made out of the damages payment is not disregarded. 5

7 Tax credit regulations do not state that setting up a personal injury trust ring-fences this type of income either, to prevent it affecting tax credit entitlement. Consequently: 1. If your damages payment was awarded by the court, then income generated by any investments made out of it will be disregarded and will not therefore affect your tax credit entitlement. 2. However, if court proceedings were never issued, or if your claim settles out of court, then income generated by your damages payment will not be disregarded, whether you set up a trust or not. In these circumstances, we strongly suggest you speak to a financial adviser about what investments to make, to avoid taxable income being generated and a corresponding reduction in your tax credits. One of our financial advisers would be happy to provide this advice. It should also be noted that Universal Credit is to replace tax credits, with a phased introduction starting from April Existing tax credit claimants will have their claims migrated onto Universal Credit from April 2014 onwards. It is anticipated that the capital rules for Universal Credit will be broadly the same as those for means-tested benefits, i.e. capital itself will be taken into account when assessing entitlement, subject to the lower capital limit of 6,000, the upper capital limit of 16,000, and the application of tariff income in respect of capital between these levels. Further, that the 52-week rule and the personal injury trust disregard rule will apply. This means that existing tax credit claimants will need to consider whether they will need a personal injury trust to protect their future entitlement to Universal Credit, even if they don t need one at present to protect their tax credit entitlement. Our benefits and trusts team would be happy to discuss this with you in more detail, if necessary. What if I just spend all of my personal injury payment? If a means-tested benefit claimant receives a capital sum that means their total capital exceeds the lower capital limit of 6,000, but then spends it on things that the authorities that administer their benefit claims consider unreasonable, they can be treated as still possessing it. This is the notional capital rule. These authorities can therefore still reassess the claimant s benefits and reduce or stop them, if it believed the claimant deliberately deprived themselves of capital in order for it not to affect entitlement to means-tested benefits. This is the deprivation of capital rule. One example of what is likely to be considered unreasonable disposal of capital is giving it away to family members, even if you argue it is to repay money you owe them. This is because the authorities would be likely to deem it more reasonable for you to live off the money than give it to someone else, and establishing that you owe it to them is likely to be very difficult in the 6

8 absence of a paper trail (i.e. the paperwork proving you owe the money that you would have if you owed it to a bank a loan agreement, statements verifying previous repayments etc). This is in contrast to repaying formal debts, such as bank loans or credit card balances, or mortgage, rent council tax or utility arrears. There should not be any difficulty establishing that you owe these sums, and this should be accepted as a reasonable use of a capital sum and therefore not activate the notional capital and deprivation of capital rules. It should also be accepted as reasonable for you to buy a new car if you need one, although you should choose one from within your usual price range to ensure this. Repaying some or all of your mortgage capital should be accepted as reasonable, whereas doing so for somebody else who does not live with you is unlikely to be, as you will be expected to use your resources to meet your own housing (and other) costs. Buying a property other than the one you live in will simply lead to the capital value of the second property being included in your total capital, and will not therefore stop it affecting your means-tested benefit entitlement. C. TRUSTEES What is a trustee? A trustee is a person, chosen by you, to look after your personal injury funds. They vet what you spend the money on - each time you raise money from the account, they need to consent to the advance and its proposed use. What do trustees do? Trustees: keep records of all trust income and expenditure, assist the beneficiary with their tax requirements in respect of the trust, including the preparation of accounts, and deal with any investments. (See below for further detail). How many trustees should I have? There needs to be at least two trustees, to provide balance and accountability. You can be one of the trustees yourself. You will then have to have at least one other trustee for there to be a trust relationship. Who can be a trustee? Anyone aged over eighteen, including family and friends. However, you should note that if they have a negative credit rating or a criminal record, this may cause problems with setting up the associated trust bank account. 7

9 Your trustees should be people you trust, with whom you are likely to maintain contact indefinitely. Because of the practicalities of them being available to counter-sign cheques and have regular input regarding any investments, it makes sense for them to be people you see regularly. In the alternative, a solicitor can be a professional trustee, although it is likely they will charge you. You should choose carefully, as there is a further fee for changing trustees after the trust has been set up. D. AFTER A PERSONAL INJURY TRUST IS SET UP How can my trust funds be invested? An associated bank account is initially opened to receive your personal injury payment(s). However, as this account is non-interest-paying, we recommend that it is only used for transactional purposes and that you do not hold large amounts of money in it for any length of time. Instead, the funds you pay into this trust bank account can go on to be invested in a wide range of assets, including property, shares, National Savings Certificates etc. These investments will then be held in the name of the trust, rather than in your name. However, you will be the beneficial owner of them. We recommend that your trustees appoint a professional financial adviser to help with investments, preferably one who specialises in the investment of personal injury and clinical negligence awards. Our financial advisers can fulfil this role, and details of their commission rates or fees are available on request. How can I access my trust funds once the account has been set up? The most straightforward method is for your trustees to counter-sign one of the cheques from your trust account chequebook made payable to you, and pay this into your current account. You can then use the facilities attached to that account to spend the money. You can do this every so often to top up the funds readily available to you. However, you should ensure that these payments into your current account don t ever take the balance above 6,000, as the funds will stop being disregarded once they are outside the trust account. You should also vary the amounts and the length of time that elapses between each payment, so that they are irregularly spaced and for irregular amounts, to avoid the authorities that administer your benefit claims treating them as income. Can I pay other money into the trust bank account? Any money received as a result of a personal injury can be paid into a personal injury trust bank account (and then invested, when applicable). If this payment is an interim payment, you can therefore pay subsequent interim payments and / or the final settlement sum into the trust bank account and invest it in the name of the trust. 8

10 If you receive a payment in respect of a separate personal injury claim, this can also be paid in. However, it is only money received as a result of a personal injury that can be paid in. You cannot therefore pay in capital sums you derive from any other source, for example by inheriting them or obtain by selling assets or property. What are the tax requirements in respect of the trust funds? The trustees should assist the beneficiary with the following: the beneficiary s local tax office needs to be notified when the trust is established, records / accounts in respect of trust income, expenditure and assets then need to be kept, and any income generated by the trust funds and investments then needs to be disclosed in the beneficiary s annual tax returns. It may subsequently be possible to recover the tax payments paid in respect of the trust funds. Your trustees may need to appoint accountants to help with the trust tax requirements. We would be happy to refer them to our sister company to provide the necessary assistance SBN Chartered Accountants. SBN will explain their charges on request. Do the trustees have to act on my wishes? Your trustees will be required to take your wishes into account. However, they will not be obliged to act upon them. Their main obligation is to act in your best interests. If you do not believe they are doing this, for example by refusing to consent to an advance you request, this may breach the terms of the trust. In those circumstances, you can consider replacing them. NB Your trustees will need to consent to being replaced. If they refuse consent, your only option may be to wind up the trust. As you will be the settlor (i.e. the party settling the trust fund on the beneficiary) as well as the beneficiary, you will have the power to wind up the trust without the consent of the trustees if you deem this necessary. You should note that if you do this, the trust funds will stop being disregarded, and may therefore lead to your means-tested benefits reducing or stopping. You should therefore seek our advice before taking this step. In the alternative, you can apply to the High Court to have them removed if you believe they are breaching their duties. This may be costly, and you should seek specialist legal advice first. What happens if I get divorced? As you will be the beneficial owner of the trust funds and assets, their value will be treated the same as any other capital asset when the financial arrangements are negotiated. You should discuss this with a family solicitor in that eventuality. 9

11 What happens in the event of my death? The trust funds and assets will form part of your estate. Your estate will then be distributed in accordance with the terms of your will. If you die without a valid will, your estate will be distributed according to the rules of intestacy. This is not in keeping with most people s wishes, and we therefore recommend that you have an up-to-date will. We suggest you seek specialist legal advice about this, and would be happy to signpost you to appropriate advisers. E. PROCEDURE AND FEE How much does it cost? We undertake a free initial assessment to ascertain whether it would be advisable for you to set up a personal injury trust. If we advise you that it is, and you decide to go ahead, we then charge a fee of 595 plus VAT to set up a personal injury trust. This includes: liaising with your personal injury solicitor, producing the trust deed, establishing an associated trust bank account, and notifying the authorities that administer your means-tested benefit claims and / or provide community care support about the trust funds, and why they should be disregarded. What happens next? If you decide to go ahead, you should complete, sign and return the enclosed acceptance form. We will then obtain the other information we need to enable us to draft your trust deed, and draft it. The deed will then be sent to you for you and your trustees to sign, in the presence of a witness. At the same time, we will send you an application form to open the associated bank account to be signed. You will then need to return these signed documents to us, along with proof of identity for each of your trustees. These are returned to you by special delivery post the same day. Once we also receive cheques from your solicitor in respect of our fee and the balance to be paid into the trust account, everything is forwarded to Cater Allen, the private bank we use to set up trust accounts. When will I be able to access the trust funds? It should be noted that after we send everything off to Cater Allen, it can take a further two weeks for the trust funds to be accessible. This is because 10

12 it can take up to five working days for the account to be opened, and then up to another five working days for the cheque to clear. This means it generally takes around four weeks for the process to be completed, from when you return the acceptance form. If you will need some of your funds before then, you can ask for an advance on the acceptance form. You should ensure that this advance will not take the total money in your accounts to more than 6,000, to avoid the advance affecting your entitlement to means-tested benefits. SOURCE LEGISLATION Tariff income / deemed income Regulation 53 of the Income Support (General) Regulations 1987 Regulation 116 of the Jobseeker s Allowance Regulations 1996 Regulation 118 of the Employment and Support Allowance Regulations 2008 Regulation 52 of the Housing Benefit Regulations 2006 Regulation 42 of the Council Tax Benefit Regulations 2006 Regulation 15(6) of the State Pension Credit Regulations 2002 Regulation 29(2) of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 19(2) of the Council Tax Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 28 of the National Assistance (Assessment of Resources) Regulations 1992 The fifty-two week rule Paragraph 12A of Schedule 10 to the Income Support (General) Regulations 1987 Paragraph 17A of Schedule 8 to the Jobseeker s Allowance Regulations 1996 Paragraph 17 of Schedule 9 to the Employment and Support Allowance Regulations 2008 Paragraph 14A of Schedule 6 to the Housing Benefit Regulations 2006 Paragraph 14A of Schedule 5 to the Council Tax Benefit Regulations 2006 Paragraph 10A of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992 Personal injury trust disregard Paragraph 12 of Schedule 10 to the Income Support (General) Regulations 1987 Paragraph 18 of Schedule 8 to the Jobseeker s Allowance Regulations 1996 Paragraph 16 of Schedule 9 to the Employment and Support Allowance Regulations 2008 Paragraph 14 of Schedule 6 to the Housing Benefit Regulations 2006 Paragraph 14 of Schedule 5 to the Council Tax Benefit Regulations 2006 Paragraph 10 of Schedule 4 to the National Assistance (Assessment of Resources) Regulations 1992 Pensioners personal injury payment disregard 11

13 Paragraph 16(1) of Schedule 5 to the State Pension Credit Regulations 2002 Paragraph 17(1) of Schedule 6 to the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Paragraph 17(1) of Schedule 4 to the Council Tax Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Tax credits - income generated by personal injury payment disregard Regulation 10(2) of the Tax Credits (Definition and Calculation of Income) Regulations 2002 Notional capital Regulation 51(6) of the Income Support (General) Regulations 1987 Regulation 113(6) of the Jobseeker s Allowance Regulations 1996 Regulation 115(8) of the Employment and Support Allowance Regulations 2008 Regulation 49(6) of the Housing Benefit Regulations 2006 Regulation 39(6) of the Council Tax Benefit Regulations 2006 Regulation 21(1) of the State Pension Credit Regulations 2002 Regulation 47(1) of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 37(1) of the Council Tax Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 25(2) of the National Assistance (Assessment of Resources) Regulations 1992 Deprivation of capital Regulation 51(1) of the Income Support (General) Regulations 1987 Regulation 113(1) of the Jobseeker s Allowance Regulations 1996 Regulation 115(1) of the Employment and Support Allowance Regulations 2008 Regulation 49(1) of the Housing Benefit Regulations 2006 Regulation 39(1) of the Council Tax Benefit Regulations 2006 Regulation 21 of the State Pension Credit Regulations 2002 Regulation 47(2) of the Housing Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 37(2) of the Council Tax Benefit (Persons who have Attained the Qualifying Age for State Pension Credit) Regulations 2006 Regulation 25 of the National Assistance (Assessment of Resources) Regulations

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