Terms & Conditions

[Anonymous]

Where someone has left a property unexpectedly I.e. due to prison or hospital we can pay 4 weeks HB if we feel the liability on the previous home was unavoidable. Does this 4 weeks cover the situation when someone has died?

[markp]

Harsh as it may sound, since this is the ultimate unavoidable liability (unless one’s death is self planned), the answer to your query is no. Liability ends at the point a claimant dies so there is no provision to pay after death.

Sorry, can’t help any further.

Do I know what I'm doing? The jury's out on that........................

[Kevin D]

The following assumes that [b:7b479d9bc3]HBR 7(7)[/b:7b479d9bc3] is the reg being considered.

In my view, if a clmt “moves” into a hospital, or prison, HB cannot be paid under the provision.

For HBR 7(7) to apply, the claimant has to have moved into a new [u:7b479d9bc3]dwelling[/u:7b479d9bc3]. That would prevent a clmt being entitled to HB for a period after death (er, notwithstanding consideration to coffins / heaven / hell being dwellings…..).

I doubt that either a hospital or a prison will constitute a dwelling for HB purposes…… Two CDs where hospital was a side issue appear to strongly suggest that it was not contemplated that hospital should (normally) be regarded as a dwelling:

[b:7b479d9bc3]R(H) 09/05 – CH/2957/2004
CH/3893/2004[/b:7b479d9bc3]

Regards

[peterdelamothe]

I would add that I think the key point about death is that it ends all contractual agreements and arrangements. Therefore, as I understand it there is no longer a legal liability to pay rent from the date of death. Any debts owed are recoverable from the estates and this presumably would include charges after death. But such debts are not enforceable. Tough luck on the landlord (who is supposed to obtain insurance).

[Mark]

I agree about death – you can’t pay. But I don’t agree with Kevin’s general view of 7(7) that it can’t apply to people in prison or hospital because these don’t count as dwellings. I recall that Kevin and I discussed this previously too.

The 2 decisions that Kevin cites do not establish that a hopsital is not a dwelling. I prefer the decision in Uratemp Ventures v Collins 2001. It’s available here:

http://www.publications.parliament.uk/pa/ld200102/ldjudgmt/jd011011/uratem-1.htm

The case established that there need be no cooking facilities for somewhere to be classed as a “dwelling” – but I think we can see it wider than that.

“no statutory guidance is given on the meaning of this now rather old-fashioned expression. But the concept is clear enough: it describes a place where someone dwells, lives or resides”.

It’s worth noting too that the DWP are entirely happy for 7(7) to be considered when people moving into a hospital or prison. If you look at circular A29 2004 (paras 26-27) you’ll see that they say that the provision exists for use in exactly these circumstances.

[Kevin D]

Hi Mark 🙂

I agree that the CDs I referred to do not specifically state “a hospital is not a dwelling”. However, in R(H) 09/05, it seems that the Commissioner certainly didn’t regard a hospital as a dwelling – but I readily accept this was not an issue that needed to be fully considered.

The question over “prison” relates to whether or not it is regarded as residential (re s.137).

At the moment, I’d be equally happy arguing either the clmt [u:925544c9c1]or[/u:925544c9c1] LA side.

I haven’t looked at the DWP guidance – it’s becoming a regular feature where the guidance appears to attempt to provide what could so easily have been [u:925544c9c1]unambiguously[/u:925544c9c1] provided for in the actual regs.

[jamcon]

The Uratemp case does specifically look at a prison cell as a dwelling. In paragraph 35 their lordships did not regard a prison cell as a dwelling, quoting some 19th century cases where the franchise was refused prisoners as a cell was not considered a dwelling.

I know it will be pointed out that this applies to a different statutory scheme, but their lordships in this case were only interested in defining the term”dwelling”, which is common to many areas of law, including HB. I can’t see that the age of the cases have any bearing as such, as their lordships were happy to quote them in their decision.

Whether the reasons given for a prison cell not being a dwelling (…the residence was compulsory and temporary “and without any intention on the occupier’s part of remaining, but on the contrary, with an intention of leaving it when she could”) could equally apply to hospitals is a moot point. The circular the DWP sent round gave hospitals and prisons as examples of when to pay the extra 4 weeks. Maybe they shouldn’t have used the term dwelling in the regulation.

[Mark]

Oh dear, that is a problem isn’t it, although it realtes to who gets the vote. I think that caselaw from 1858 might be a record for this site.

[Mark]

But I bet Kevin has the parchment somewhere.

[markp]

I think the actual question here was whether the four weeks covered a notice -period for a deceased claimant and the issue of a temporary absence in prison or hospital, whether a dwelling or not, was understood to be payable under appropriate circumstances. This seems to have gone off at a tangent!

Do I know what I'm doing? The jury's out on that........................

[Kevin D]

Mark (Haringey):

Nope. And I’m mighty relieved to be able to have plausable deniability to the suggestion I harbour reams of case law. Well, ok, maybe one ream……. But, Stainsby…..? 😯 Speaking of whom, where the devil is he these days?

Mark P:

Right back on track (although, I’m not convinced it got that far derailed) – HB under HBR 7(7) relies on the clmt having moved into a “new dwelling”. If the clmt hasn’t moved to a “dwelling”, no HB will be payable under that provision. Hence the discussion.

Right, off to the B & B to recuperate and forget about benefits for one whole night.

[Author]

Posts