This week I received the following enquiry following my post about Litigation Friends:
An illiterate mother M is living with her two adult daughters who are both on Disability Living Allowance (DLA). The council has exempted both girls from council tax as their GP has certified that they have the mind of a child. Before 2004 M set aside some of their DLA in two separate accounts to buy them a mobile home when she died, but she did not put it in a formal Trust Fund.
When the Department for Work and Pensions found out, they charged M with benefit fraud because the money in the accounts exceeded the threshold for council tax and housing benefit of £16,000. The CPS entered no evidence so the Crown Court formally acquitted her.
The Council and DWP claim that the burden of proof is less in civil cases and that she cannot now have the benefits she needs to pay the rent and the tax so they are taking steps to recover the rent and council tax including court proceedings on the grounds that she has too much capital.
M claims that it is the girls’ money not hers which exceeds the threshold. One girl has less than the threshold the other has more.
The two adult disabled girls lack capacity. Would they benefit from a litigation friend? If one can be found would he or she be liable to pay costs if they lost, in which case no one could take the risk?”
As this may be a common issue, I thought it may assist others to consider the response I gave. Please remember that this is general advice without knowledge of the full facts and circumstances and should not be relied upon other than as a pointer in the right direction. For more detailed advice, contact me or another specialist.
Dear C – Thank you for your response to my post about litigation friends. I can provide you with some general advice about litigation friends, but in order for you to obtain detailed advice, specific to the particular facts of this matter, you will need to find specialist welfare benefits advice. Unfortunately, this is more difficult than it used to be, given the change in legal aid rules (most legal aid for welfare benefits challenges has been removed), but I suggest as a first step you contact the local Citizens Advice Bureau (CAB), as each office has a number of highly experienced benefit case workers.
In relation to your general query about litigation friends, the girls will need a litigation friend if they are party to the proceedings. If they are not, there is no need.
Does M lack mental capacity to litigate? It might be worth having a report carried out if there are concerns there, since Orders cannot be made against an individual in civil proceedings where they lack capacity to litigate.
If litigation friends are required, and are appointed by the court, they will have to agree the following statement: “I undertake to pay any costs which the above named claimant may be ordered to pay in these proceedings subject to any right I may have to be repaid from the assets of the claimant”.
The litigation friend has the right to claim the cost from the person they are acting for, but if the individual has no money, that is of course a risk for the litigation friend. An individual such as a friend, family member or advocate may not be prepared to take that risk.
Perhaps you could also approach the Official Solicitor who will be able to provide more information about acting as a litigation friend for the girls, if they are party to the civil proceedings.
I hope that this has been of assistance and that you are able to help M.