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Neutral Citation Number:	2010 UKUT 437 AAC
Reported Number:
File Number:	CSJSA 411 2009
Appellant:	JK
Respondent:	Secretary of State for Work and Pensions
Judge/Commissioner:	Judge A J Gamble
Date Of Decision:	11/02/2010
Date Added:	20/12/2010
Main Category:	Jobseekers allowance
Main Subcategory:	other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 26. Capital held in a joint savings account – proper approach in Scots Law to determining whether funds in the account belonged to the claimant and his wife or whether that presumption was rebutted by other evidence The claimant and his wife made a joint claim for income-based jobseekers’ allowance. They held certain funds in a joint savings account. Their capital was calculated on the basis that they jointly owned all the money in the account. It was contended by the claimant that some of the money was being held in the account on behalf of the wife’s mother. Before the First-tier Tribunal it was argued that certain funds in the account were held in trust for the mother. The tribunal rejected that assertion and held that there was no documentary or other evidence, and no circumstances present, which supported the existence of a trust. The tribunal also held that legal and beneficial ownership of the funds belonged to the claimant and his wife. The claimant appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. the First-tier Tribunal had misdirected itself in law by considering whether a trust had been established. (paragraph 8(a)); 2. the correct approach in Scots Law was the common law rule in Trotter v Spence (1885) 22 SLR 353 that the rebuttable presumption where funds are held in joint names is joint ownership. There was no need to establish which of them held the funds because, by virtue of regulation 88 of the Jobseeker’s Allowance Regulations 1996, the capital was aggregated (paragraph 8(b)); 3. that rule also applies where it is asserted that the funds in an account actually belong to someone else. In such circumstances, the presumption can be rebutted: Cairn v Davidson 1913 SC 1054. Cairn v Davidson was also authority for the proposition that rebuttal evidence could be given by way of any admissible evidence including oral evidence. The true ownership of funds in a bank account in this case did not require proof of the establishment of a trust but simply evidence in rebuttal of the presumption arising from the joint names of the account (paragraphs 8(b), (c) and (d)). The Upper Tribunal Judge remitted the case to the First-tier Tribunal (Social Entitlement Chamber) for redetermination by a differently constituted tribunal in accordance with his directions.
Decision(s) to Download:	[2011] AACR 26ws.doc