Occupation of the home

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    Chris Robbins

    This subject is becoming the bane of my life.
    I have a claim from a person who contracted for a new tenancy which commenced on 23.5.11. The tenancy was arranged by his girlfriend (who does not live with him) as he was actually in prison on remand.
    The background is that he would not be allowed bail until he could show that he had a bona fide address to which he could be bailed that was at least an hour away from where he used to live.
    The story we have is that his girlfriend arranged the tenancy and on the tenancy date moved his belongings into it in readiness for his release on bail. As his release was dependant on the police approving the arrangements, that occurred on 1.6.11 when he moved physically to the property. His claim for HB was then made on 3.6.11 with a request that we backdate his award to 23.5.11.
    While I accept that good cause for a late claim has been established, the primary question is whether he meets the conditions of entitlement in Section 130 SSCBA that his ‘occupation of the property’ commenced on 23.5.11.
    We were the respondents in a recent UT decision (CH/567/2011) where a Deputy Upper Tribunal Judge found that a person who was required to reside in a bail hostel could still be treated as ‘being in control’ of her new tenancy from the tenancy date, even though for a period she was still required to rerside at the bail hostel. That decision can be found in HB Information Issue 5/11.
    I cannot decide whether that decision gives sufficient authority to say that this claimant was ‘occupying his home’ from 23.5.11 but was simply temporarily absent from it, or whether the fact he was still in prison and therefore unable to visit the property at all (unlike my claimant in the bail hostel case) provides sufficient difference on the facts for me to say that he did not occupy the property as his home until 1.6.11.
    Any views on this from the experts out there?

    Kevin D

    You know my view Chris: CH/567/2011 was wrongly decided.

    Based on the info given, this is easily distinguishable from R(H ) 9/05 and CH/2928/2010 makes it clear that R(H ) 9/05 does not give carte blanche for belongings to count as occupancy. In the case you have, the clmt is in prison and is absolutely prevented from occupying the premises. This is very different from being a hospital patient who is not (normally) “forcibly” detained by LAW. Elements of CH/1986/2009 *may* be relevant here to the extent of the reasoning relied on when determining the causitive reason for absence.

    In an earlier thread, new.hbinfo.org.com/forums/topics/changed-address-within-period-temp-absence, I suggested that if, across the board, belongings are enough to establish “occupancy”, it makes a mockery of HBR 7. Since then, a further thought has come to mind. If, for the sake of argument, CH/567/2011 is correctly decided, my view is that it renders aspects of HBR 7 all but pointless.

    In short, it would mean “occupancy” can be satisfied merely by furniture (surely meaning CH/2928/2010 is wrongly decided), “residency” doesn’t necessarily mean personal occupation on any given day and, finally, the term “absence” is left as the only term that refers to the individual physical person.

    With specific regard to the temporary absence provisions, the term “…intends to return to occupy the dwelling as his home” is used. The term “return” implies that there must have been occupancy before the commencement of the absence in order for the provision to apply and the term “occupy” is, obviously, a direct match to the term “occupancy” (distinguished from “residency” and “absence”).

    If “furniture” is enough for “occupancy”, it means the person never needs to “occupy” the dwelling in order for the temporary absence provision to bite. If that approach is in fact right, it provides a slam dunk method for completely circumventing, say, HBR 7(8 ). Further, suppose that a person was “temporarily absent” for, say, 70 weeks. If “occupancy” really is so loose as to mean furniture is enough, what is to stop a clmt arranging for all the furniture to be removed at, say, week 50, put back in week 52 and then arguing that the 52 week clock restarts because the dwelling has been reoccupied, despite the clmt still being absent? I suppose the obviously counter-argument to this would be that there is a point at which the “person” takes over from “furniture” in the equation. Trouble is, the CD/UTDs have blurred this to the point different LAs are now taking differing approaches to something that should be absolutely uniform.

    In the event your case ends up, again, at Tribunal Chris, I’d be inclined to set out the ALL of the case law, explain all the potential anomilies/perversities created and let the Tribunal decide. If it went to the UT, I might even politely suggest a panel of Judges should deal with it to nail this once and for all.

    Of course, the DWP could knock this firmly on it’s head by a very simple rewording of HBR 7. Just make occupancy dependant upon the person and, if the circs in R(H ) 9/05 are considered exceptional, make an exception for hospital in-patients. Like the DWP are really going to do that….

    Curiously, the CTB legislation makes the distinctions much clearer. In short, any day of “absence” means no CTB UNLESS the temp absence provisions are expressly satisfied. Would it be that hard to express the HB provisions in similar terms? I don’t think so.

    Chris Robbins

    Thanks Kevin.
    I agree with you, but you express the arguments so much better….

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