Absence from home prison to secure mental health unit

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  • #39464
    Anonymous
    Guest

    We have a claimant who was held on remand on 04.06.11. In August he was transferred to a secure mental health unit. His case is due back in court 25.10.11 and it is likely that he will be detained under section 37/41of the Mental Health Act.
    I understand that this means that only a court order can discharge him.
    If it were a case of remand and then prison sentencing, we would know how to treat his absence from home. However, is detention in a mental health unit in this way equivalent to being sentenced to prison?
    Our ctax dept have granted a class E exemption but I am not sure that we can treat him as being absent from home because he is in hospital. And also he went straight from prison to hospital.
    Any advice would be appreciated.

    #112250
    Kevin D
    Participant

    So far, the temporary absence is due to either remand or resident as a patient in a hospital (or similar). Both of those reasons mean the 52 week provision applies.

    So, what happens from 25/10? It depends. If absence continues on the sole basis of him being sentenced, HB entitlement ceases immediately because the 13 week provision is engaged and that has already been exhausted.

    HOWEVER, if further detention is due to being ordered to a mental health unit rather than prison, the 52 week provision remains engaged.

    The real difficulty / confusion starts if he is simultaneously sentenced to imprisonment AND detention in a mental health unit. It may well be arguable in these circumstances that the 52 week provision still applies so long as the patient element is still satisfied – this approach would seem to be consistent with [b]MR v Bournemouth BC (HB) [2011] UKUT 284 (AAC)[/b] (aka CH1849/2010) where a claimant was in prison for one offence but simultaneously on remand for another offence. The UT found that the latter meant the 52 week provision was engaged despite the imprisonment for the initial offence. {Literary licence: moral of the story; commit more offences to get more benefit}.

    #112253
    Anonymous
    Guest

    Ok, I see, I think. So will have to wait and see what happens at court tomorrow. Mind you doesnt’t it all depend on him having an intention to return home? At the moment I don’t think he is capable of any kind of thinking about the future, does this matter or shall we rely on what his social workers say? If they argue our housing department into keeping on the tenancy I’ll take that as an intention to return home?

    #112260
    Anonymous
    Guest

    Thank you, that’s really helpful

    #112259
    Kevin D
    Participant

    Yes, the clmt must have an intention to return home that is realistic (i.e. distinguished from a desire) AND the total length of absence must be unlikely to substantially exceed 52 weeks, starting from the original first day of absence.

    If the clmt is incapable of being able to consider the intention aspect, it raises an interesting issue. The provisions are crystal clear in requiring the intention to be that of the claimant and no one else. In that context, the views of support workers / social services etc are only relevant to the extent of having evidential value as to what the claimant’s intention is. The distinction that needs to be made is between a) a support/social worker giving information about the claimant’s intention to return and b) a support/social worker’s opinion about the intention to return / likely length of absence. What matters is the claimant’s intention. In the event of the clmt being too ill to offer usable information to the LA, the evidence of 3rd parties may assist the LA to make a determination about the clmt’s intention(s ), possibly by drawing inferences (one way or the other).

    In my view and based on experience of dealing with temporary absence / mental health cases, I don’t think you can rely on the keeping of a tenancy as necessarily being an indication of a REALISTIC intention to return home, nor of the length of absence. It will need more than that, such as a prognosis relating to the clmt’s state of health. In the last such case I dealt with, the clmt had been absent for 3 years with the tenancy merrily continuing and no realistic prospect of return in the foreseeable future. The clmt’s support worker insisted the tenancy was being retained because the clmt would return at “some time” and, at first, couldn’t understand why HB had been stopped rather abruptly…

    NB: Does the 52 week limit breach the Human Rights Act in cases where mental health is at issue? Well, I would have said not BUT you should be aware that in June 2010 a FtT found exactly that – i.e. the 52 week limit breached Article 14 (the cases involved Worcester CC and Warwick DC). As a FtT decision, it isn’t remotely binding but it’s something to bear in mind if challenged. {Edited to add} One of the LAs has kindly confirmed leave to appeal to the UT has been sought and that a hearing date is currently awaited.

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