Going into a nursing home

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  • #39411
    rds01
    Participant

    We have a claimant who went into a nursing home on 12.9.11 and the nursing home confirmed that on this date there was no intention to return home. The claimant is liable to pay rent to 6.11.11. We have ended the claim and awarded an additional 4 weeks. However, there is a gap between our HB end date and 6.11.11. The RSL is quoting DWP v Selby 4/06 and that you can award HB for up to 13 weeks EVEN AFTER the decision is made not to return, i.e. we should be awarding HB to 6.11.11. Are they right? Many thanks.

    #112037
    Kevin D
    Participant

    Did the clmt reserve the right to return to her former home? If so, “Bowman” *could* be applicable. If not, I agree no further HB is due. In particular, take a look at paras 10 & 14 of “Bowman”.

    #112038
    rds01
    Participant

    As far as we are aware it was a straight decision on 12.9.11 not to return home. Does “reserve the right” mean you have not made the definite decision not to return so would be still temporary absent anyway? Thanks for your help.

    #112053
    d-stainsby
    Participant

    Does the claimant have the capacity to make her/his own decisions?

    I come accross cases all too often where someone else purports to make decisions on the claimants behalf.

    The nursing home have a vested interest in the placement being “permanant” (they like any other landlord do not want any voids)

    I have taken a number of cases to tribunal where I have cited Hammersmith and Fulham LBC v Clarke CA 21 Nov 2000. The Court held that:

    “Although the question of intention had to be decided at the date of the expiry of the notice to quit, evidence of intention both before and after that date might be relevant. The court would not focus on fleeting changes of mind but on an enduring intention, particularly in a case such as the instant. The judge had not applied the wrong test at the wrong time and there was evidence that supported his conclusion that JC always intended to return to the house. The court would be slow to place reliance on comments made at a particular time particularly in a case such as the instant where there was evidence that the tenant was suffering from depression.”

    If the claimant is liable to pay rent until 6 November 2011, that may be because the notice was not served on the HA until recently, and that may be prima facie evidence that the claimants intention to return ended only recently.

    The Court of Appeal held in R(H)4/06 that there only need to be an intention to return at the time of entering the nursing home for benefit entitlement to continue for up to 13 weeks, and so in my opinion the HA are correct on this one

    #112058
    rds01
    Participant

    Does it make a difference if on entering the nursing on the 12/9/11 the decision was made on the same day as occupation commenced that the move was permananent? Many thanks for your help.

    #112077
    Kevin D
    Participant

    On a lighter note Ryan, the Bowman case is infamous for this rather disparaging repost to the DWP:

    “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”.”

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