Horton v Henry: CA 7 Oct 2016

No obligation on bankrupt to draw on pension fund

The trustee in bankruptcy appealed against a decision dismissing his application for an income payments order pursuant to section 310 of the 1986 Act in respect of income which might become payable to the respondent from his personal pension policies, were he to exercise his contractual rights under those policies to draw down a lump sum or other payments.
Held: The trustee’s appeal failed. The bankrupt could not be obliged to take a lump sum from his pension funds so that it could to be treated as an income to supprot an Income Payment Order. Section 310 did not allow a reading which characterises a pension holder’s contractual rights under their pension to elect, after reaching a certain age, to draw down, or ‘crystallise’ that pension, in the form of a lump sum or income payments. Such an entitlement was after acquired property, and not available to the trustee.
The judge in Raithatha had failed properly to allow for the depth of changes introduced by the 1999 Act.

McFarlane, Gloster LJJ, Sir Stanley Burnton
[2016] EWCA Civ 989, [2016] WLR(D) 506
Bailii, WLRD
Insolvency Act 1986 310, Welfare Reform and Pensions Act 1999 11
England and Wales
CitedRaithatha v Williamson ChD 4-Apr-2012
A bankrupt’s present entitlement to compel payment of pension benefits fell to be included in the assessment of his income within the meaning of section 310(7) of the Insolvency Act. . .
CitedHorton v Henry ChD 17-Dec-2014
The trustee in bankruptcy sought to oblige the bankrupt to make a capital draw on pension fund assets in order to support an Income Payment Order.
Held: The judge dismissed the application for an IPO. The court had no power under section 310 . .
CitedIn Re Landau (A Bankrupt) ChD 1-Dec-1996
At the date of the bankruptcy the bankrupt was entitled to a pension, payable in the future on his attaining the age of 65 years. He was aged 61 when the bankruptcy order was made, and 64 when it was discharged. The trustee claimed to be entitled to . .
CitedDennison v Krasner, Lesser, Lawrence CA 6-Apr-2000
A retirement annuity or personal pension was part of a bankrupt’s estate before the recent Act, and vested immediately in the trustee on the bankruptcy. As such there was no need to make application to the court under s310 for an income payment . .
CitedBlight and Others v Brewster ChD 9-Feb-2012
A judgment creditor, applied for an order requiring Mr Brewster, his judgment debtor, to elect to draw down a lump sum from his pension in order to enable the judgment creditor to obtain a third party debt order against the pension trustees.
CitedIn the Estate of Borger Deceased 1912
Supreme Court Victoria – Will – Construction – Legacy, lapse of – Death of beneficiary ‘before he shall have become entitled,’ meaning of.
A testator devised his real estate to trustees upon trust for his brother J until his youngest surviving . .
CitedBarclays Bank Plc v Holmes and others ChD 21-Nov-2000
. .
CitedWestminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .

Lists of cited by and citing cases may be incomplete.


Updated: 11 November 2021; Ref: scu.570113