Terms & Conditions

[Anonymous]

Can anyone help?

We have a customer who has decided after a 13 week trial in residential accommodation ( and has been temporarily absent from the normal home) that the stay is permanent. They have a 4 week notice period to pay for their former home.

We seem to think that there is a commissioners decision that now means we can pay both the maximum period of 13 weeks for temporary absence and the 4 week period of notice for the rent liability being unavoidable at the old address, making a total of 17 weeks in all – but we can’t lay our hands on it.

Can we pay 17 weeks (13 temp absence + 4 period of notice) or should the 13 weeks not be exceeded?

The latest copy of the Guidance Manual that we hold A3-262 to A3-264 suggests 13 weeks is the maximum, but we aren’t convinced…………..

Thanks for your help 🙂

Roxina

[David]

I’m sure this was covered in a circular, although I can’t remember which one!

You can only pay 13 weeks; I note that the way reg 7(7) is worded says that they are treated as occupying their former home. As temporary absence can be a amximum of 13 weeks, I’m certain this is overall limit.

[Anonymous]

You need to bolt together two decisions to get to that conclusion, but I think it is the right conclusion all the same.

The first case is that of Selby and Another from the Court of Appeal in February this year. The court noticed that Reg 7(11) requires the claimant to kick off the trial period with the intention of returning home should things not work out, but there is nothing requiring that intention to be maintained throughout the trial (here, the wording is different from the other temporary absence rules). Therefore the claimant could give notice and, as long as the 13 weeks are not yet up, his or her lack of intention to return home would not prevent HB from continuing.

In the Selby case, everything happened within the 13 weeks. It was therefore unnecessary for the Court to consider whether the claimant could rely on Reg 7(11) first, and then Reg 7(6)(d) – consecutively. Reg 7(11) covered all the angles on its own.

I know DWP says that the Selby case is authority for its view that you cannot exhaust the 13 week trial and then give notice for a further four weeks on top of that, but I think that is wrong. Selby didn’t consider that – the court actually made a point of saying it wasn’t necessary to consider that. See para 13 of the decision [url=http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/271.html]here[/url].

That is where the other decision comes in. [url=https://hbinfo.org/comdecs/ch_2641_2003.doc]CH/2641/2003[/url] is the only case I am aware of that has got to grips with the question whether different provisions of Reg 7 can apply consecutively, and in particular whether giving notice while temporarily absent means that the reason for treating the claimant as occupying the home changes from absence to notice. Commissioner Mesher concludes that Reg 7(6) does apply if notice is given while the claimant is absent. He says: “It follows that the claimant in the present case was entitled to the benefit of Reg 5(5)(d), as she was not able to avoid double liability. She had to give notice to end her tenancy … and could not do so until it had been decided that she was staying permanently in the residential accommodation.”

2641 was also a trial period in care case, so I suppose you could argue that Selby makes it unnecessary to take the view that Commissioner Mesher took. But I think Selby is only relevant to the narrow question of intentin beyond the first week, whereas 2641 could apply to any situation in which a person was previously treated as occupying the dwelling for any reason in Reg 7, then gave notice so that the other reason no longer applies but Reg 7(6)(d) does.

[Mark]

I’m a bit lost here. I ran a temporary absence workshop earlier this week where this very question arose. I have spent a fair bit of time since then trying to get to the bottom of it but I am none the wiser.

Let’s start with the Guidance Manual’s view. Selby tells us that we can tear that up – para 10 is particularly amusing here – since it examines both the current and previous versions of the guidance manual wording, says the DWP haven’t really got a clue what’s right and wrong and gives us instead the interpretation that Peter oulined.

CH/2641/2003 (thanks for alerting us to that one) is certainly interesting. I agree that it does show that HB can be paid for a period of temporary absence and then also a period of unavoidable liability under 7(6)(d) [and presumably 7(7) too].

But I still don’t see why the extra 4 weeks HB payable under 7(6)(d) or 7(7) can’t be awarded [u:e019e6d2cd]on top of[/u:e019e6d2cd] a 13 week period of temporary absence.

The bit of the Guidance Manual that has now proved to be incorrect is the only place I can see where this view about 4 weeks of unavoidable liability having to be within a 13 week period was propounded. So with that gone, where else is this idea coming from? In particular, I’m interested in all the various combinations of the parts of reg 7 (e.g. the possibility of 52wks + 4wks too).

Can anyone help? I’ve tried several times to read CH/2641/2003 in the way Peter’s suggesting but I don’t see it.

[Anonymous]

Obviously didn’t express myself very well, I agree with you Mark. I think 2641/2003 is authority for applying Reg 7(11) first, for the full 13 weeks if necessary, then Reg 7(6)(d) (or (7) if the care home is free) after that – 17 weeks in total. There, hope that’s clearer.

The last paragraph in my post was just addi9ng a slight note of caution in that Selby came after 2641/2003 and so some people might argue that Selby now provides the only way to deal with it. But I think that would be wrong.

The DWP gave its view about Selby in one of its bulletins earlier this year, I’ll try and find the reference.

[Mark]

That’s very helpful Peter. Thank you. You had me worried for a while though.

I just found the DWP Circular you are talking about – G4/2006 – para 6. This is what it says:

[i:b7fedffdb6]”When a person is in residential accommodation on a trial basis this provision should not be used to extend the period HB can be paid for to beyond 13 weeks where a person is in residential accommodation on a trial basis. There is already provision in Regulation 5(7B) and (7C) to pay for the period of notice within the trial period of 13 weeks. For example a claimant who decides after nine weeks of the trial to remain in the residential accommodation can have four weeks HB paid for the period of notice, but if they make this decision in the 11th week they can only have two weeks HB paid for the period of notice. HB can be paid provided the total period of absence does not exceed 13 weeks even if the claimant decides to remain in the accommodation. It is the intention at the start of the period of absence that determines the payment of HB and not what happens during the trial period. This current guidance was recently confirmed in the Court of Appeal decision.”[/i:b7fedffdb6]

So I think I’m joining the “that ain’t really true” brigade. I assume though that the next Guidance Manual amendment will say just the same as the circular.

[Anonymous]

So to clarify – I’ve now looked at G4/2006 – which appears to say I cannot pay more than 13 weeks……. so 13 weeks in total it is?

Thanks

Roxina

[Mark]

Only if you agree with it. I don’t and neither does Peter. The DWP are relying on the Selby case to support their view but I have read and re-read it and it just doesn’t support their position. The problem is, it doesn’t negate it either. So you’re gonna have to make your own call. I’ve made mine and until I’m convinced otherwise I believe that 13+4 is allowed for.

[Anonymous]

Thanks both for all your help…..

Why is nothing in life ever simple? Or is that just Benefits?

Have a good weekend!

Roxina

[Author]

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