Terms & Conditions

[joannab]

Good morning

I am looking for some caselaw/reported decisions and general thoughts on a recent appeal.

Our claimant was detained in hospital under the Mental Health Act in May 2019. The LA only became aware of this following a SWF application made in November 2021. It was eventually established that the claimant was admitted on 5 May 2019 and had his first overnight pass on 1 August 2020. He was then discharged into his mothers care on 26 August 2020 but was subsequently readmitted on ” November 2020 to 20 April 2022 during which time he had numerous overnight passes. The LA decided that entitlement to HB ended on 3 May 2020.

I am struggling with the reference to “not substantially exceeding 15 months” and have interpreted as follows: If the LA was aware of the absence they would monitor on a regular basis. On nearing the 52 week period, it was found that the claimant would not be returning to the property for many more months. As this would substantially exceed the 52 week period, HB would be terminated from admission and the temporary absence period would not be paid. Can anyone advise.

I dont believe a CPS could be utilised as entitlement had ended after the 52 week period and a new claim would be required which is a moot point as UC would need to be claimed. Can anyone provide clarification.

[garethbannister]

chrome extension://efaidnbmnnnibpcajpcglclefindmkaj/https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/236950/hbgm-a3-liability-to-make-payments.pdf

Temporary absence may be longer than 52 weeks

3.532 A person whose absence that is ‘unlikely to substantially exceed 52 weeks* also qualifies. This may be considered only in exceptional circumstances. It should not be interpreted as the normal rule for all or any particular groups of claimant.

* Unlikely to substantially exceed 52 weeks’ should be interpreted as a total absence of up to about 15 months.
3.533 Although the absence may be longer than 52 weeks, benefit may only be paid for a maximum of 52 weeks while the claimant is absent.

3.530-3.533

A3 – Liability to make payments and occupying the home

3.534 Take account of all the circumstances before deciding whether to allow benefit for an absence that is likely to last longer than 52 weeks and consider each case on its facts. For example, an absence of more than 52 weeks may be considered temporary when a claimant has been prevented from returning home by an unanticipated event, or their discharge from hospital has been delayed by a relapse.

[nick dearnley]

*Typed while Gareth was replying*

The overall time limit for temporary absence is 52 weeks, not 15 months – that refers to how to consider whether an absence is “unlikely to substantially exceed 52 weeks”, with absences up to 15 months generally being regarded as not substantially exceeding the 52 week maximum.

Temporary absence almost always has the problem that it is not reported at the start of the absence, so you’re always dealing with it retrospectively.

From what you have said, the absence started in May 2019, with the first overnight return home on 1.8.20. That is already a continuous absence of more than 52 weeks, so a decision needed to be made about whether there was continuous intention to return after May 2019 – the facts as described suggest not. After 1.8.20 it is I think arguable that he has not reoccupied the property as required by reg 7 and so any new claim that had been made at the time would have been rejected, unless R( H )5/09 could be made to apply (that concerned a move from one property to another while in hospital).

As all of this is retrospective, I think you could look at closed period supersession on the basis of whether there would have been entitlement for the times he was at home. But against that is the fact that his original absence did exceed 52 weeks by some way (and even allowing 15 months as ‘not substantially exceeding…’) and his entitlement would have to have ended in May 2020. You might be able to decide that the absence was always going to exceed 52 weeks, so that there is no entitlement from May 2019, but that will depend on what information and evidence you have or can get about the circumstances at the time. But I would say there is definitely no entitlement after May 2020.

I’ve just realised that’s pretty much what you already said…..

• This reply was modified 7 months ago by nick dearnley.

[Peter Barker]

Have a look at CH/1237/2004 which considers the effect of hindsight. The decision says that entitlement throughout the 52 weeks for which HB could potentially be paid should be based on how things would have looked at the time, week by week, even if you know now that the absence did in fact exceed/substantially exceed 52 weeks. If you would not have expected the absence from home to exceed or substantially exceed 52 weeks in the early stages based on what it was possible to predict at that time, HB can be allowed down to the point at which it would have become clear that the absence was probably going to be substantially more than 52 weeks.

Overnight passes break the absence and reset the clock: R v Penwith DC ex p Burt. The only issue is whether the dwelling remains the claimant’s normal home when lengthy absences are separated by very short returns.

PS … and I in turn overlapped with Nick. I endorse what he says: HB down to May 2020 at the latest under the “no hindsight” principle, but you don’t have to end it from May 2019 when the absence first began

• This reply was modified 7 months ago by Peter Barker.

[joannab]

Thanks to all who contributed. This has helped clarify the LA position and I am confident that the decision is correct.

[joannab]

Hi Nick

Thank you for your response. However I am confused as to the mention of a CPS. Are you referring to underlying entitlement to reduce the overpayment?

The claimant apparently retuned home on numerous nights throughout the overpayment period as detailed below;
1/8/20 – 2/8/20
8/8/20 – 10/8/20
15/8/20 – 17/8/20
21/8/20 – 25/8/20

The claimant was then readmitted to hospital on the 2/11/20 until 20/4/22 with the following overnight passes:
15/10/21-18/10/21
21/10/21 – 25/10/21
28/10/21 – 31/10/21
6/11/21 – 8/11/21
11/11/21 – 15/11/21
19/11/21 – 23/11/21
26/11/21 – 30/11/21
3/12/21 – 7/12/21

Could U/E be applied for each period of return to reduce the overpayment?

I hope this makes sense.

[Peter Barker]

You haven’t said when you made the decision to end HB from May 2020. I’m assuming some time later, and in the meantime HB had been paid all along through 2021, 2022 … maybe even early this year. But at some point, it has come to light that a period of absence in excess of 52 weeks occurred between 2019 and 2020.

From 1/8/2020 the claimant was never absent from home for longer than 52 weeks, so the only overpayment there can be in this case runs from the point at which it would have first appeared (without the benefit of hindsight) that the original absence was likely to substantially exceed 52 weeks. That could have been as recently as May 2020, maybe a bit earlier. This is a textbook closed period supersession: you remove entitlement for the overpayment period, from ??? 2020 to August 2020, and leave the ongoing award undisturbed after the end of that closed period.

It’s not a case of underlying entitlement: it’s a case of identifying a period in which there was no entitlement at all, and periods in which the claimant was fully entitled to the amount paid – textbook CPS as I say.

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