detained under mental health act

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    I have posted this before but I now have more details and I still need help with this.
    One of our claimants was sent to prison on remand on 04.06.11. In October he was detained under s41 of the Mental Health Act. discharge depends wholly on the Ministry of Justice deciding that he no longer poses a risk to the public. Apparently, unlike with criminal justice, this type of detainment does not include a specific release date and discharge conditions will be set by a QC.
    The social worker can only advise that our claimant ” seems more settled”, at one point he was too ill to decide himself that he wanted to return to his council property, now they are saying that he once said he wanted to return. However, they also think it might be best if he was settled elsewhere.
    So, we can not say that his absence will exceed 52 weeks, no one has any idea. I do not think it appears that he has an intention to return or at least a realistic intention to return. He is a council tenant and we have suspended HB at the moment, and Housing are pushing for the social workers to terminate the tenancy due to rent arrears plus the neighbours do not want him back.
    Can anyone advise me if I am thinking along the right lines here, or should we reinstate the claim and play the waiting game to see how long he is actually away for or if the tenancy is terminated?

    Kevin D

    In my view, your thought process is more or less on point. The question is simply whether or not there is a realistic intention to return. If not, HB ends from the earliest of the time there is no intention or, alternatively, from the time any stated intention becomes unrealistic. It’s a judgement call, based on the available evidence and decided on the balance of probability. Bear in mind that what counts is the CLAIMANT’S (realistic) intention; not 3rd party views although such views may have evidential value (one way or another).


    Thank you, he has a review due next week by his medical team.If they come back and say he is still no nearer to making a decision about returning, we will just have to end his HB

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