[2024] UKUT 259 (AAC)

The CMS had agreed a variation under regulation 65 on the basis that the mortgage was a debt within regulation 65(2)(a) and was not excluded by regulation 65(3). Before the FtT, LM argued that CMS should have considered the variation application under regulation 67 as provision which relates to mortgage payments, but that a variation could not have been made under that regulation because NM had a legal and equitable interest in the property. She also argued that, even if considered under regulation 65, that regulation did not apply either because NM retained the benefit of the property.

LM observed that the CMS provided information on the variation application form and other publicly available documents which indicated that a variation for mortgage payments could only be made if the paying party had no legal or equitable interest in the property. Letters to LM from CMS also indicated that this was the position, although their position was unclear.

The FtT found that the information provided by CMS was incorrect. It decided that the mortgage payments fell within regulation 65 and were not excluded by regulation 65(3), but did not fall within regulation 67.