Can HB be paid 4 weeks after clmt sentenced?

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  • #38809
    zoe22
    Participant

    Hi,

    We have a case where a clmt has been sentenced for 12 months. The Prison Advisor who has notified us is insisting if the clmt gives up his tenancy we can pay his 4 weeks notice period. We don’t think we can pay but this advisor is so convinced it’s putting doubt in our minds.
    I think she may be getting confused with the 4 week overlap rule but clmt does not meet conditions as there is no rent liability for his prison cell!!

    Are we missing something or are we right?

    #109753
    Kevin D
    Participant

    I suspect this is a reference to HBR 7(7) which states:

    (7) Where—

    (a) a person has moved into a dwelling for which he is not liable to make payments (“the new dwelling”); and

    (b) immediately before that move, he was liable to make payments for the dwelling he previously occupied as his home (“the former dwelling”); and

    (c) that liability continues after he has moved into the new dwelling, he shall be treated as occupying the former dwelling as his home for a period not exceeding 4 benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling.

    HOWEVER, there are two completely opposite views on whether this provision can apply when a clmt is sent to prison.

    – View one is that the clmt hasn’t moved “into a dwelling” when he is sent to prison and, therefore, this provison cannot apply. The reasoning is that “prison” isn’t a dwelling. On that basis, sub-para “(a)” isn’t satisfied.

    – View two is simply that “prison” is a dwelling.

    “Dwelling” is defined in s.137 of the SSCBA 1992.

    Personally, I take the first view for the reasoning given and, to date, I’m not aware of any legal authority to the contrary. DWP guidance supports the second view but completely fails to explain why. For that reason (and the fact that DWP guidance is not a statement of the law; hence not binding), I take the DWP’s view with a large pinch of salt.

    #109757
    craigworc
    Participant

    I know that we have paid this 4 week period in the past under HBR 7(7) taking the view that the prison is a dwelling as thet is where the claimant wil be ‘residing’.

    I suppose as there isn’t anything (that I know of) that confirms one way or another you need to decide if you think it falls under a dwelling.

    #109758
    Kevin D
    Participant

    In Uratemp Ventures Ltd (resp) v Collins (appel) [2001] UKHL 43, the Lords observed at para 35:

    “…a prison cell was not a dwelling. This was not because it lacked cooking facilities, but because 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”: Dunston v Paterson (1858) 5 CB(NS) 267, per Willes J. In Powell v Guest (1864) 18 CB (NS) 72, 80 Erle CJ expressly approved a statement in a contemporary textbook which stated that the occupant must have “at the least a sleeping apartment.” He did not suggest that this was insufficient.”

    In my view, the principles about compulsion and the clmt not having a choice are critical and that is why I take the view prison is not a “dwelling”. Others take the view that this is irrelevant to HB. “Dwelling”, is defined in s.137as being “…any residential accommodation…”. This plainly envisages a domestic arrangement which inherently connotes a degree of choice without compulsion. None of that applies to a prison cell and I don’t agree that the word “residential”, in this context, can be used to describe a prison cell.

    As an aside, there is a CD/UTD (I can’t identify it immediately) in which it was observed that a hospital was not a dwelling. So, say a clmt is taken ill and, whilst still in hospital, has to give up his/her tenancy. HBR 7(7) can’t apply because a hospital is not a dwelling. I’d like to see the UT Judge that would dare to find someone sent to prison can rely on HBR 7(7) but a hospital patient can’t….

    {Edited to add} Also, HBR 7(7) is reliant upon “Where …(a) a person has moved…”. I would argue this phrasing doesn’t extend to meaning “…a person has BEEN moved…” – again it’s the issue of choice / compulsion.

    #109765
    Chris Robbins
    Participant

    The CD Kevin refers to is R(H) 9/05.

    #110122
    Alex G
    Participant

    Interestingly we were just having the same conversation in our office.

    The Shelter guidebook Zebedee, Ward, Lister (my 2009-10 version!)

    is of the view that a care home or prison is acceptable.

    They have quoted R 4/06 with ref to HB awarded following a move to a care home and trial period.

    Also they are critical of the DWP’s use of the ‘exceptional circumstances’ wording in the GM.

    #110123
    Kevin D
    Participant

    The provisions at issue R(H ) 4/06 were entirely separate from the “prison” debate arising out of HBR 7(7). The case went to the Court of Appeal as [b]SoS for Work & Pens v Selby DC & Bowman [2006] EWCA Civ 271[/b].

    The case was about a trial period in residential accommodation for which there are express provisions elsewhere in HBR 7 and the issue was about how/when the intention to return operated in the context of those provisions. HBR 7(7) provides for circumstances where a person is not returning and for which there is no deeming provision about returning. Unlike the provisions at issue in the “Selby” case, HBR 7(7) operates on the basis of a move being one of finality with no allowance for a trial period elsewhere and no intention to return.

    As to the “dwelling” question, I can’t see anything at all in Selby that provides a basis for finding that prison is a “dwelling”. There isn’t any difficulty in finding that “residential accommodation” (e.g. a care home) is a dwelling – that is precisely the meaning set out in s.137 SSCBA 1992. Also, it’s worth noting that “Uratemp” is a House of Lords judgment and, even though the “prison” reference could probably be regarded as obiter, I would argue it carries greater weight than a Court of Appeal judgment that doesn’t give any consideration at all to whether prison is a dwelling.

    On a lighter note, the Judgment contains a lovely passage that should be given legendry status. At para 10, Ward LJ stated:

    “10. So the delicious irony of this appeal is that the Secretary of State does not seem to know what the Regulations drafted by himself really and truly mean, and he comes before us saying, in effect, “You clever chaps in the Court of Appeal sort it out for me please”. And of course, we are happy to do so; would that all our appeals were as short as this and as cogently and as well argued as this one.”

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