Reply To: Temporary absence or not?


Have a look at R(H) 9/05: [url][/url].

It seems quite similar to yours. The claimant gave up her old home and stayed in hospital for a few months; meanwhile all her belongings had bene moved into her new home but there was an interval before she actually went there herself. The Deputy Commissioner decided that she and her “agents” (relatives) had done enough to establish occupation of the new home, even though the claimant had not yet bodily moved in. In a lot of cases, this manoeuvre would not get round the obstacle of the claimant having to pay rent for the place where they are currently staying: but, conveniently, the claimant was in hospital and so that complication did not arise. There was only candidate for the claimant’s normal home and that made it easier for the Commissioner to conclude that she had moved in.

Having established that, the Dep Comm interpreted the temporary absence rules with a bit of goodwill and decided that she could be temporarily absent from the home despite never having actually been there.

In your case, the claimant seems to be in some kind of institutional care, but if he is receiving HB for it you may find it difficult to square that with a conclusion that the new home has already become the dwelling normally occupied – if that is the case, he shouldn’t really be getting HB on the old place any more from January onwards. On the other hand, you should find it easier to apply the temporary absence rules than Dep Comm Mark did in the case described above, because your claimant will at least pay regular visits to the new home.

So I would say: if you can bring yourself to accept that the Council property is the normal home immediately from the start of the tenancy, temporary absence should not be a problem.

That’s HB taken care of. Now, CTB ….

This is easier I think. If your Council believes it is his sole/main residence from January, then he is entitled to CTB subject to temporary absence. If he is liable as a resident and you know that he does indeed spend time there, then temp absence should be no trouble at all as long as he vists the place at least once every 52 weeks (assuming that the other place is residential care of some sort, the 52 week rule applies).

This gives me another opportunity to rant about the mismatched concepts of residential liability for Council Tax on the one hand, and imported concepts of occupation borrowed from HB on the other. Regrettably, the DWP did not leave well alone after CH/2111/2003 confirmed that the pre-April 2005 temporary absence rules had no effect in CTB: in my view, things should have been left as they were after that decision so that the claimant can get CTB if the Council regards them as resident, simple. But now we have a rather ungainly temporary absence rule grafted onto CTB from April 2005, which means that you can have the Council demanding tax from someone because they live in the place but refusing to pay them CTB because they, er, don’t. Personally I think this is a clumsy misuse of the “prescribed person” mechanism, which was devised for the intended purpose of excluding full time students and PFAs from CTB. End of rant.