Terms & Conditions

[Anonymous]

One to stretch the benefit muscles……

We have a claimant who, it seems, went to Spain on holiday in April of this year, fell ill and subsequently died in October, still in Spain.

This only came to light after an intervention was started in July. What’s worse is that while he was away, DWP asked him in for a medical assesment for his continued Incapacity Benefit entitlement. Because he didn’t respond, his IB has been cancelled with effect from May.

Actually, what’s even worse is that although we started the intervention in July, we didn’t manage to suspend entitlement until October (don’t ask!). So we only got a letter from the landlord, explaining all the above, in December after entitlement was ended and he received an invoice.

So HB has been ended from May, when the IB ended. And now we have to look at this and decide what [i:36da87ed09]should [/i:36da87ed09]have happened.

The only proof of anything we have is the Spanish Death Certificate.

So, what’s to do? The Team Leader wants to stay as we are: end HB from when the IB ended (on an adverse inference) and invoice the landlord. The Quality Officer wants to end HB from when the IB ended (on an adverse inference) and invoice the estate, with a view to write it off. I have a headache. I am inclined to think about temporary absence. He went abroad in April. The landlord states he went into hospital in Spain in April too, but no dates or evidence have been supplied.

Help!

Darren

[Kevin D]

It’s not entirely clear whether or not the L/L is a prescribed person (i.e. did he have info that he did not disclose?).

Assuming that there is an overpayment at all, and that it is recoverable, and assuming the L/L is a legitimate target, the O/P is equally recoverable from [b:48c2c60ec7]both[/b:48c2c60ec7] targets (i.e. estate and L/L). If so, both should be notified accordingly. There is nothing to stop you invoicing both.

For what it’s worth, I’d ask the Exors for more info about the clmt’s income / cap and the hospital dates. It is in the interests of the Exors to cooperate on two counts:

1) the info is for the purpose of trying to avoid a debt by way of HB/CTB O/P; and

2) an Exor can be held personally liable for debts if they fail to take reasonable steps to properly deal with the estate.

Regards

[Anonymous]

What’s the significance of wanting to end HB from the date IB ended? There was obviously a change of income at that time, and perhaps also a change in the applicable amount. Eitherway, the net effect looks advantageous to me. I don’t think there is much basis for inferring that IB was magically replaced by 99999.99 a week of inferred income. It is almost certain that IB stopped and, er, that was that.

I think what you are looking at here are the temporary absence rules, with three matters in particular to consider:

– was it a 13-week or 52-week case?
– whichever of those it turns out to be, did the claimant ever have the intention to return within the appropriate time limit and, if so, did he stop having such an intention at any time?
– irrespective of his intentions, would it have been clear at any stage that there was no realistic likelihood of a return home within the appropriate time limit?

And finally, as Kevin says, what did the landlorid know, and when? Did he cause the overpayment (if there is one) by failure to disclose a material fact?

But I think the IB ending in May is a red herring, except that it might affect the amount of HB if the claimant was still treated as occupying his UK home at that stage.

[Anonymous]

Would you try to reduce the overpayment first?

he went away for his health (? – pardon the pun) but intended to return to the UK? if so surely you can look at temp absence for at least part of the period. the trouble is that you are going to have difficulty finding out the movements (ie at waht point was it determined that he could not return to the UK etc).

IB was cancelled but if you can establish no other income you can certainly consider underlying entitlement for the overpayment through to the point that you decide that temp ab is no longer appropriate.

anyway thats what I would do to start with – with luck you can reduce the OP in entirity, if not you will need to decide landlords knoweldge etc etc as Kevin suggests above.

This time of year brings out the best in me….. 🙂

[Anonymous]

But when does the overpayment start? From when he went abroad in the first place? From when the IB ended and adverse inference is made?

The landlord may well be a prescribed person. He let a room in his house to the clt and he seems to have some information about what happened. But when clt went abroad, he was expected back, so when was the landlord supposed to tell us anything?

My inclination is to write to the landlord and the executors to ask for the exact dates that the clt went to Spain, when (and where) he was hospitalised and when (and how) they found out about it. That could eliminate the temporary absence issue. If it does, could ending HB from the Monday after IB ended work? An adverse inference might be made as we have no evidence of any capital and no idea how he even afforded to go on “holiday” (it could, of course, have been a gift).

I think perhaps that we should also ask the landlord and the executors what income the clt had in Spain, after the IB was withdrawn.

Oh, and, Happy New Year, one and all.

Darren

[i:dcba5c3ec3]The light you see at the end of the tunnel is a freight train coming your way…….[/i:dcba5c3ec3]

[Anonymous]

I would have thought that there must be sone of the period that could be covered by temporary absence – if not all.
Presumably he went there with an intention to return within 13 weeks – ok so far.
He didn’t – which means his intention has to be regarded as changed at some time after the illness / accident and resulting prognosis – who knows who will be able to give you dates on that one!

At this point he is presumably a hospital inpatient. So was the diagnosis that he would be able to return home at some time in the future (within 52 weeks etc) in which case possible further HB due, or was the diagnosis “sorry, mate, youv’e got no chance of ever going anywhere – ever” (in which case no further HB due).

So many questions – so few obvious people to ask – except for the executors. Good luck! 8)

And a merry New Year full of unambiguous regs to one and all 😀 – though it wouldn’t be half as much fun, would it? 😉 :15:

[Anonymous]

Still not convinced that the end of IB is a useful date from which to infer enormous income or capital. If his ability to take a long holiday in Spain is a surprise in the light if what you knew about his income and capital, and you are satisfied that there is enough there to justify an adverse inference as to capital, shouldn’t you be doing that from the outset – i.e. from the beginning of the holiday at the absolute latest, making the generous assumption that he acquired the capital that very day and went straight to the airport?

Losing IB during the holiday doesn’t raise suspicions of fresh income capital starting only then, nor does continuing receipt of IB during the early part of the holiday prevent an adverse inference about capital from being made earlier.

My feeling is that you are unlikely now to get to the bottom of how the holiday was paid for and to make an adverse inference when he’s not around to help you out with information seems a bit harsh. I think the best you can manage here is to gather enough facts to come to a view about temporary absence. As for income and capital, I would just drop the IB from May and otherwise leave things as they were.

[kareena2b]

My understanding was that benefit whilst absent must be claimed before the absence by notifying the Authority of the proposed absence, its purpose and the fact that the clmt intends to return, that the property will not be sublet and the likley period- because if you know in advance a person is going on holiday for 16 wks- he qualifies for nothing and the claim should be canceled on the Sunday of the week he leaves the UK.
If this doesnt happen before the absence & the person is back, he must now claiim backdated benefit( on the assumption the claimant was found out & the claim closed but the claimant is no longer with us, so how can he tell you his intention, how can he request backdated benefit??
I think the claim should be cancelled from the original cics date-ie when he left the UK. The ending of Incapaciity is purely how you found out and not the earliest change that would have an effect on his claim.
I will stand corrected.

[Anonymous]

Quick comment on Kareena’s post –
If HB / CTB is in payment anyway then there is no need to “claim” anything, in effect it is just a change of circs (sorry to be pedantic, but making an early bid for Pedant of the Year 2007 award 😳 8) !!). I suppose in effect what I am saying is that you are making a late decision on a change of circs which may (or may not) effect someone’s HB / CTB.
It would be nice (and make things easier) if people told us of temporary absence in advance, but I am not aware of anything in the regs that make this obligatory.
What reg / CD do you base this on? I suspect it may be more of a practise and procedure locally more than a legal requirement.

[Stalbansbenefits]

[quote:f9bd38d066]It would be nice (and make things easier) if people told us of temporary absence in advance, but I am not aware of anything in the regs that make this obligatory.
What reg / CD do you base this on? I suspect it may be more of a practise and procedure locally more than a legal requirement.
[/quote:f9bd38d066]

Exactly. Otherwise where would you draw the line? I decide to spend the night at a friends house – do I need to notify the local authority? What about if I spend the weekend away, or go to Ibiza for a week / 10 days / 2 weeks??? The only requirement is for me to notify the Authority of changes which I might reasonably be expected to know might affect my housing benefit. I would therefore argue that a claimant doesn’t need to let you know about any temporary absence unless they know it is going to exceed 13 weeks. Obviously, if someone goes away with the intention of returning within 13 weeks and something happens which means that is no longer likely to happen, they should notify you at that point.

[Kevin D]

I agree with Jon that “intention to return” must be judged at the outset of the absence – not at the point of notifying the LA. Further, intention must then be considered on a week by week basis in the same way as any other factor that could lead to a change of circs (e.g. income / cap etc).

This issue was looked at in [b:33d8cba65f]CH/1237/2004 (p12)[/b:33d8cba65f]. Further, the “intention to return” must be realistic – a desire is not enough (see [b:33d8cba65f]CSHB/0405/2005 (p30)[/b:33d8cba65f]) and the intention must be positively satisfied ([b:33d8cba65f]see ch/3488/2005 (p12-13[/b:33d8cba65f]).

Regards

[Author]

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