How long is temporary?

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  • #22793
    Anonymous
    Guest

    We have a pensioner couple ( under 75) who advised that their daughter, son in law and kids were moving in with them ” for a few weeks”.The daughter has sold her house and is staying with her parents waiting for the purchase of her new property to go through. Our assesors decided that a few weeks was a temporary stay, and that as the daughter is normally resident elsewhere we would not make a deduction.

    That was on the 4th August. The daughter and her family are still living with her parents, the house purchase hasnt gone through yet.

    So, how long is a piece of string? The ” non dep”s have been there 6 weeks now. Should we now decide that we should treat them as non deps? Do we leave it a bit longer? And if we treat them as non deps, do we go all the way back to when they first moved in, or decide that from a later date that they have now become non deps?

    V confused.
    Thanks

    #9601
    Anonymous
    Guest

    If they are “new” non-deps would not the 26 week non-dep delay apply here as the claimant / partner is over 65?
    If so, you have your period of “grace” anyway?? 8)

    I think you have to treat them as non-deps from the date they moved in as they could not be said to normally reside elsewhere.

    #9602
    Anonymous
    Guest

    Opps, sorry for some reason I had “75” in my head and not 65. Yes we can disregard them for 26 weeks.Hopefully they will have moved out by then!!!

    #9603
    Anonymous
    Guest

    [quote:2780292ee5]they could not be said to normally reside elsewhere[/quote:2780292ee5]

    To be picky, what the definition of a non-dep says is ‘normally resides [i:2780292ee5]with the claimant[/i:2780292ee5]’, which is not quite the same thing. I think situations like this really are ‘a piece of string’.

    For example, a few years ago a friend of mine and his wife took in another friend and his wife whose house had been severely damaged by flooding. They stayed there for 18 months, but I would argue that at no point did they normally reside with my friend. They normally lived in their own home, and intended to go back to their own home as soon as possible. Similarly in this case, the daughter normally resides in her own home, not with the claimant, and intends to live in her new home when the sale goes through. Staying with mum and dad is a nice easy option, but it doesn’t mean that she normally resides with them. What do you expect her to do, live in an hotel?

    #9604
    Anonymous
    Guest

    Whilst I appreciate what you say, Andy, in that it is a very subjective perception of a person’s situation, I think there is a difference in this case, and the one you use as an illustration (where I agree with you that a non-dep deduction should not be applied). 😉

    Difference is that the people in your example did own another property which they (implicitly) intended to return to after the completion of repairs. Therefore no problem as accepting it as normal home.
    In this case, as I understand the couple do not appear to have a permanent “normal place of residence” as they are waiting for their purchase to go through. It could be argued that this is their “temporary” “normal residence” untilm that happens, in just the same way that if they had chosen to live in rented accomodation during this period, this would have been the place they lived, and therefore they would be able to apply for HB. 8)
    So its not what I expect them to do, it’s what they have chosen to do, perhaps? :15:

    #9605
    Anonymous
    Guest

    I see where you’re coming from, Jon, but I still don’t think you can say the daughter ‘normally resides with the claimant’. That is the test, not ‘does the prospective non-dependant have another home to go to?’. If there is no intention of permanence, as in this case, the daughter cannot be said to normally reside with her parents…she’ll be off as soon as her purchase is completed.

    #9606
    Anonymous
    Guest

    There’s an argument for saying that the Regs do not require permanence for a person to be a non-dep. There are two places to look:

    – HB Reg 3(1) defines a non-dependant as someone who normally resides with the claimant
    – HB Reg 55(7)(a) says there is no non-dep deduction where “although he resides with the claimant, it appears to the appropriate authority that his normal home is elsewhere”

    This means it mus be possible for someone to normally reside with the claimant and yet have their normal home elsewhere. This, I think, means that the “normally resides” test in Reg 3 is a lower threshold: I would read it as saying “on a normal day, would it be normal to find this person hanging around the place?” If yes, the person is a non-dep, but there is no deduction if they have their own normal home elsewhere.

    In the Brentwood case, for the time being it is normal for them to be residing with the claimant. So I’d go with Jon on this one – I think they are non-deps who do attract a deduction (or will do after 26 weeks).

    #9607
    Mark
    Participant

    Unusually, I don’t agree with Peter on this one. In CH4004 2004 someone who had no other place to live and lived with the claimant for over 2 months was found not to be “normally residing” with the claimant and therefore not a non-dependant. That case is different to the one being discussed here but none-the-less it breaks Peter’s “normally hanging around the place” principle.

    I prefer to see 55(7)(a) as a ‘belt and braces’ provision. It’s hard to imagine a situation where someone can be treated as normally residing with the claimant but also having their normal home elsewhere at the same time. It’s kinda contradictory. I suspect that any nil deduction case because of 55(7)(a) is probably better covered by 3(1) in the first place.

    #9608
    Anonymous
    Guest

    I had a query recently from a CAB advisor about temporary absence for non-deps.

    She asked if a claimants student non-dep lives away from home during term time but returns for holidays, where does the non-dep “normally reside”? The advisor was wondering about the rent officer considering over-accomodation.

    Although the non-dep was away from the claimants home for 35 weeks a year I said the non-dep normally resided with the claimant as a) The non-dep considered “home” to be with his Mum and b) the halls of residence cannot be considered to really anyones “home”.

    So far, so good. However I was then asked what if the non-dep took a gap year and took off to see the world. Where would the non-dep normally reside?

    My answer was based on the 13 week rule absence rule (although I can’t back it up under specific regulations). I said if a non-dep would be absent for more than 13 weeks they didn’t normally reside with Mum.

    Mum would therefore be over-accomodated.

    Was I right or does anyone have other ideas?

    #9609
    Anonymous
    Guest

    Fair enough. Extract from Mark’s case:

    [i:30f2c19397]”Normally Residing With

    13. It is clear that for a limited period the claimant’s cousin was residing with her (which is further explained in regulation 3(4) of the 1987 regulations), but was he “normally” residing with her. The extra word must mean something but the tribunal does not appear from the record of proceedings to have considered this point (although in the absence of a full statement it is not possible to know whether it was actually considered). It is a matter of fact and degree, but it seems to me that in the particular circumstances of this case – the deportation, destitution, the highly temporary nature of the arrangement, the fact that the cousin had to sleep on the sofa, the fact that he appears to have left as soon as he could arrange things with various official bodies – no reasonable tribunal could have found that the cousin was “normally” residing with the claimant.” [/i:30f2c19397]

    #9610
    Anonymous
    Guest

    Anyone got any ideas about my question?

    #9611
    Anonymous
    Guest

    There is case law (Marchant and Swale) that supports the application of Reg 7 to decide not just whether the claimant satisfies the threshold requirement of occupying the dwelling as his/her home, but also to decide any issue in which the concept of occupation is relevant – principally the number of occupiers for rent officer purposes.

    If you apply Reg 7 to the student, there is a provision that has always been there from the days when students were not excluded from HB. Reg 7(3) says that a student who uses two homes and is liable to make payments in respect of one of them but not the other should be treated as if s/he occupies the one s/he has to pay for. The purpose of this rule is to prevent Councils from refusing HB to a student for their term time address merely on the ground that their normal home is with Mum and Dad.

    These days, Reg 7(3) only applies to students who would not otherwise be excluded from HB. This, I think, is because the Reg was drafted on the assumption that there would be no point making special provision for students who don’t qualify for HB anyway. The lawyers who drafted the Reg were thinking in terms of the person being the claimant – they were not thinking about the implications of applying Reg 7 to other household members. It was the Marchant case that introduced the idea of looking at Reg 7 from the perspective of other household members apart from the claimant.

    If the student is able to claim HB for his/her term time accommodation, I think Marchant dovetails very nicely – the HB scheme would only make provision for that student in one place at a time.

    If the student is not able to claim HB because s/he is excluded from benefit as a full time student, then Reg 7(3) does not strictly apply and you have a bit of room for manoeuvre – you could take the view that the non-dep retains his normal home with his parents at all times.

    I think I agree with you about the gap year – again because you are applying Reg 7 from the perspective of the non-dep, which is consistent with Marchant.

    #9612
    Anonymous
    Guest

    The concept was considered in CSIS/100/1993 and again in CIS/14850/1996.

    The Commissioners in both cases held that “normally residing” had connotations of permanence, although it was not possible to list all the factors that had to be taken into account, it was a matter of fact and degree.

    They did agree that the length of time the person resided with the claimant may be a factor to be taken into account but it was not conclusive.

    Marchant was essentially concerned with occupiers who were also asked to be considered members of the claimants household. I dont think Marchant can be applied to non deps who by definition are not members of the claimants household.

    I have never understood the inherently contraditcory notion that a non dep can reside with the claimant but his normal home is elsewhere as again by defintion, that person is not a non dep in that he would not be “normally residing” with the claimant.

    The intentions of the parties when residence was taken up will also be relevant.

    For what its worth, I dont think that the people in the case we are discussing are non deps and I would be confident to represent them at a Tribunal if they were my clients.

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