Changed address within a period of temp absence

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  • #38335
    Amanda JB
    Participant

    Hi

    I am making some enquiries with an appellant about his temp absence which lasted 13wks and 6 days (25.11.10 to 02.03.11), he went to Thailand (frequent visitor)to get over the death of his mother. I am enquirying what his original intentions were etc etc

    However during this period of absence he also changed address (2 1/2 weeks into his absence on 12.12.10), how he managed to sign the new tenancy agreement I don’t know, he has the same landlord, Hb payment going to claimant.

    He says his daughter did all the arrangements and moved all his stuff on 12.12.10(only moved next door)

    So, I am wondering, or rather tying myself into knots, that even if his original intentions were to return within 13 weeks, would his entitlement end once his tenancy for the original address ended anyway, as he did not occupy his new address from from the start, or could i stretch it and apply R (H) 9/05 for the new address and apply reg 104A to reduce the O/P, if I am happy his original intentions were to return within 13 weeks?

    Or does his temp absence end on 12.12.10 anyway as he had no intention to return to that property as he gave up his tenancy? Am I making this too complicated?

    I am now struggling to know what decision to apply and have to get this right as he has appealed so if decision not changed in his favour I have to send it to TAS. (already had a recon but coa and its relevance has not been considered)

    thanks

    #107874
    Amanda JB
    Participant

    How do i turn off smilies please?

    #107884
    Kevin D
    Participant

    Based on the info given so far, the facts seem to be fundamentally different to those on which R(H ) 9/05 was decided. I would be confident of distinguishing this situation from R(H ) 9/05 – especially as there is a more recent UTD which also put R(H ) 9/05 firmly in context. Unfortunately, I can’t remember the citation of the later UTD – I’ll post again if/when I am able to identify it.

    #107899
    Amanda JB
    Participant

    Kevin,

    Thanks for your reply, so if the other CD is more fitting are you saying entitlement ends in any event on 12/12/10 because his liability for his property ended and he is not entitled at new address until he moved in, therefore i would be applying temp absent rules until 12/12/10 then nil due to section 130 of Social Security and Contirbutions Act and Reg 7?

    #107900
    Kevin D
    Participant

    Hmm. CH/2928/2010 did indeed thoroughly distinguish R(H ) 9/05 from being an “across the board” decision. But, then came CH/0567/2011… see https://hbinfo.org/forums/topics/occupying-nowhere-as-the-home.

    My view is that the clmt did not occupy the home and, on the facts given so far, the placing of belongings, in this case, does not consitute occupation. However, the legal authorities available so far seem to mean the flip of a coin is as good a way of any to get the “correct” decision.

    One obvious problem with the “belongings is enough for occupancy” is this: If that is enough for occupancy without physical personal occupation, why shouldn’t it be enough for the temporary absence rules when those very same belongings are already in “occupation”? In my personal opinion, the “belongings” argument makes a mockery of the legislation but that isn’t exactly a first.

    #107902
    Kay_Tade
    Participant

    Is all this not a moot point the period of absence has exceeded 13 weeks so end of HB and a new claim is required. Am I missing something? :~

    #107907
    Kevin D
    Participant

    That neatly illustrates the point at issue Kay. If belongings are enough, the absence by the “person” becomes irrelevant and makes a nonsense of the occupancy legislation. If the occupancy is satisfied at the outset by “belongings” and the clmt is physically elsewhere, at what point does the clmt have to physically occupy the dwelling? I’d argue never because there has been no factual or physical change by a continuing physical absence by the person and “occupancy” has already been, and remains, satisfied (following R(H ) 9/05 and CH/567/2011).

    Alternatively, is there then a 2-tier occupancy that must be considered? i.e. in “X” circumstances, belongings are sufficient but, in “Y”, it must be the person? I see nothing in the legislation that supports such an approach. The difficulty has been caused by the legal authorities and, in turn, the DWP’s failure to amend the legislation to distinguish between the genuinely exceptional circumstances in R(H ) 9/05 and the other cases which are simply riding on the coat-tails of that decision. One alternative would be to expressly allow in-patients more than the current 4-weeks max for liability before occupancy.

    #107914
    Kay_Tade
    Participant

    [quote=Kevin D]If belongings are enough, the absence by the “person” becomes irrelevant and makes a nonsense of the occupancy legislation. If the occupancy is satisfied at the outset by “belongings” and the clmt is physically elsewhere, at what point does the clmt have to physically occupy the dwelling? I’d argue never because there has been no factual or physical change by a continuing physical absence by the person and “occupancy” has already been, and remains, satisfied (following R(H ) 9/05 and CH/567/2011)[/quote]

    Well, in my view, the temp absence always trumps occupancy, belongings, physical or otherwise, as I can’t see the sense in the regs if it doesn’t. Once we accept there is occupancy, of some sort at some point, then trhe next step is the temp absence rules and eligiblity after that fact.

    #107916
    Kevin D
    Participant

    [quote=Kay_Tade]…as I can’t see the sense in the regs if it doesn’t. [/quote]

    :bigsmile: :bigsmile: :bigsmile:

    #108312
    Amanda JB
    Participant

    Thanks guys.

    I made some enquiries with the tenant which included enquiries about his house move, which he has chose to ignore completely.

    He has however sent me his travel itinery

    Left UK 25.11.10 return flight scheduled for 28.2.11 (he said he returned 02.03.11)

    So his planned absence was always over 13 weeks (13 weeks & 4 days)

    He was subsequently overpaid because of this as he did not notify us at all until after his return.

    Because I cananot allow any of the period as his absence was always going to excedd 13 weeks I need to send to HM Courts & Tribunal Services.

    Should I just do it under the temp absence rules and not mention anything about the change of address to keep it simple?

    #108313
    Kevin D
    Participant

    I’d mention it, even if just in passing. Bear in mind, a Tribunal could take a view that the presence of furniture in the new premises constitutes occupancy despite the clmt already being absent and continuing to be absent. By omitting something that *could* be relevant, it may appear the LA is being selective in what it is putting before the Tribunal, even if the LA is acting in good faith.

    Another thread may also be of interest:

    Occupation of the home

    NB: Nearly forgot – bear in mind that the criteria for CTB is different when compared to HB. For CTB, mere absence means no CTB UNLESS the temp absence provision is positively satisfied.

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