
Whilst you’re working out exactly what benefits you’re entitled to and going through the process of getting them, you need to give some thought as to where you are going to put the money when it begins to arrive.
That can be a very important decision. To explain why, I’m going to tell you a sad and rather unpleasant story, and then talk to you about something called ‘The First Right of Appropriation’. Don’t go away. You need to hear the story – and you certainly need to know about your ‘First Right of Appropriation’.
Anyway, let’s get on with the story – which is, of course, a true story.
A self-employed acquaintance of mine – we’ll call him John – had a run of financial ups and downs over the years (most artists and designers do, however talented and popular they happen to be) but found himself in real financial difficulty once the present recession began to bite. John isn’t young man – he was 70 plus when this sorry tale began (and incidentally had a heart-bypass operation in the middle of it!) – so he qualified for various benefits quite easily, including Housing Benefit and Council Tax.
John arranged for those benefit monies to be paid directly into a bank account he held jointly with his wife. He had been a customer of the bank for many years and had an overdraft facility there which he used to run his business, so he had no qualms about using the joint account to receive his benefit moneys.
John’s wife had a credit card in her own name from the same banking organisation, and in better times John had arranged for the monthly payments due on the card to be taken directly from their joint bank account. John made that arrangement on-line, and when things began to get really difficult for him, he attempted to cancel it, intending to get in touch with the creditor to make an offer to pay instalments he could afford. He found that he couldn’t cancel it.
When work dried up almost completely, and John and his wife were relying wholly on benefits to pay rent, Council Tax, and essential outgoings, John went to see his Bank Manager seeking help to cancel the on-line arrangement made with regard to the credit card. His Bank Manager professed to be unable to help him because the credit card wasn’t issued by the bank, but by an arm of the banking organisation over which he had no control.
Letters were written on John’s wife’s behalf to the credit card company, making it aware of the situation, but it nevertheless continued to remove benefit monies from John’s account every month in respect of instalments that were in fact almost wholly made up of interest.
John finally did what he should have done in the first place. He opened an account with the Post Office Savings Bank and had his benefit monies paid into that, thus ensuring that he could pay his rent, Council Tax and essential outgoings.
In the meantime, the credit card company continued to extract money from John’s bank account – effectively raiding his overdraft facility every month. Eventually, it was no longer able to do so; John’s Bank Manager took fright and converted John’s overdraft into a loan, repayable monthly at what might have been affordable rate had he been able to continue to work. That was, of course, virtually impossible; he hadn’t the money to spend on the materials he needed to work, because he no longer had access to an overdraft.
When instalments stopped because the overdraft facility was no longer there to cover them, the telephone calls from the credit card company began in earnest. That company had, of course, already been made aware of John’s situation – a situation that has since grown much worse due to the actions of his Bank Manager – but nevertheless, and despite letters and explanations, the calls continued.
I shall be talking about how to deal with such collection calls in another post. In the meantime, I want you to think about what has happened to John, draw your own conclusions, and feel able make your own arrangements accordingly – which brings me to ‘First Right of Appropriation’.
You can, of course, have Housing Benefit paid direct your Landlord, but if you don’t want to do that, and feel that Housing Benefit or other benefit monies may be at risk if they are paid into your regular bank account, then you can safeguard them by opening another account elsewhere. In my view, that is the safest way to proceed. In the alternative, however, you can rely on your ‘First Right of Appropriation’.
The Social Security Administration Act 1992 provides that certain benefits - such as Housing Benefit - are ‘inalienable’. Banks are therefore forbidden to use Housing Benefit (or in fact any other income related benefits) to repay an overdraft or any other charges because, effectively, the money does not belong to the customer, who is simply acting as an agent to pass the money along to, say, a landlord.
However, and that aside, your First Right of Appropriation means that even if your bank account is overdrawn, you can choose how ANY funds (in other words not just benefits) paid into your bank account are used, simply by claiming First Right of Appropriation.
To claim Right of Appropriation, you must contact your bank in writing with new instructions at least 7 days before the money is due to be deposited every time it is due to be deposited, and make it clear in your letter that the deposit is to be used for specific purposes. Otherwise the bank might simply disregard the request. It might do that anyway, but I’ll come to that in a minute.
A letter claiming First Right of Appropriation should contain various elements. Here’s a sample:
I am writing to advise you that £xxx will be paid into my account on xx/xx/xx. This is (e.g. Housing Benefit/Council Tax/other benefit).
I want to exercise my first right of appropriation for this money, which will be used for: (e.g. Rent £xx and/or Council Tax £xx and/or living expenses £xx). I shall withdraw the money on the day that it is deposited for that/those purpose(s), and I should therefore be grateful if you would ensure that any other payments out of my account do not interfere with that withdrawal.
Right of Appropriation is something all banks should be aware of, but it’s very rarely used – and obviously it’s not something they’re particularly anxious to publicise. John’s Bank Manager may have known of it - he certainly should have known of it – but equally he may have chosen to be unaware of it. And that’s the problem with relying on Right of Appropriation rather than just putting your benefit money safely away somewhere else.
Effectively, your bank might just disregard your letter whether you send it more than 7 days in advance of the expected deposit or not - and just gobble up your benefit money. You would then have to complain, in writing, both to the bank and to the Banking Ombudsman. Eventually, of course, the matter would be sorted out because the law is quite clear on this point – but the sort-out could take several weeks and wouldn’t solve the immediate problem of what, for example, you would do about paying your rent.
If you’ve already experienced this problem, or are experiencing it now, you should write to your bank and to Banking Ombudsman quoting Section 187 of the Social Security Administration Act 1992, which provides that:
“Subject to the provisions of this Act, every assignment of, or charge on:
(a) benefit as defined in section 122 of the Contributions and Benefits Act;
(b) any income-related benefit; or
(c) child benefit,
and every agreement to assign or charge such benefit shall be void; and, on the bankruptcy of the beneficiary, such benefit shall not pass to any trustee or other person acting on behalf of his creditors”
If you haven’t experienced this problem – and even if you never anticipate experiencing it – you might still want to make arrangements set up a specific account to handle your benefit moneys with a bank other than that you generally use.
You really need to ensure that you will be in a position to pay secured and priority creditors, because you can get into quite serious trouble if you don’t. Banks and credit card companies are neither secured nor priority creditors; they can take action against you, of course - but defaulting on payments to secured creditors can have much serious consequences. As talking about bad news on this blog usually falls to me, I’ll tell you all about that (and what you need to do to avoid falling foul of the wrong people!) in another post.
In the meantime, you can find a lot of information about how to reclaim unfair charges at
http://www.britishconsumer.com/ (it’s a free – and very useful – site). If you need to contact the Banking Ombudsman, you can call the consumer helpline on 0845 080 1800 or 0300 123 9 123 (office hours) or on 0300 123 9 123 or 020 7964 0500 (these numbers may be cheaper if you use a mobile phone or a phone company other than BT, and will be "free" if you pay a monthly charge for calls to numbers starting 01 or 02). They’ll call you back if you're worried about the cost of calling them. In the alternative, you can email
complaint.info@financial-ombudsman.org.uk or write to The Financial Ombudsman Service, South Quay Plaza, 183 Marsh Wall, London E14 9SR
Geoff