Partner and children temporary absent v passported benefit as single person issue

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  • #45303
    Julie whiston
    Participant

    Hi

    1,Claimant and married partner in receipt of a passported benefit (income support) as a couple.

    2,Claimants partner and children go overseas, with an intention to return , they are absent from the property for a couple of days over 52 weeks.

    3, DWP remove partner from passported benefit claim from date she first went overseas and award the claimant a passported benefit as a single person from when the partners period of temporary  absence started until they latter reclaimed (ESA IR ) as a couple a after partner and children returned.

    Myself I would have said that DWP should have superseded the original Income Support decision and only removed the partner from when it became clear that absence would exceed 52 weeks rather than remove the partner from the Income Support claim back from the start of the absence but a passported benefit having been awarded to the claimant as a single person we are now prohibited from continuing to assess  HB as a couple during the partners absence.

    However it appears to me that there is the possibility that the Local Authority could make its own decision on whether the children continued to be a member of the claimants household for up to 52 weeks during the temporary absence. There are quite a few children in this case so it has big implications for the claimants eligible rent

    However  it was the temporarily absent partner who received the Child Benefit for the children. I am therefore concerned that the customer may fall foul of reg 20 (2). Does the fact that the partner is not treated as a member of the household during the temporary absence due to the passported benefit as a single person issue constitute a question mark over which household the children were living under reg 20 (2). Therefore  resulting in the child benefit test having to be applied, or can I lawfully conclude that the children should remain on the HB claim up to the benefit week in which it became clear the absence would exceed 52 weeks on the basis they were still normally living with the claimant but just temporary absent therefore the Child Benefit test does not arise as reg 20(1) continues to apply.

    #127393
    d-stainsby
    Participant

    Regulation 16 of the IS Regs is in exactly the same termas as HB Reg 21. In particular sub paragraph 2 of Reg 21 provides:

    “(2) Paragraph (1) shall not apply to a person who is living away from the other
    members of his family where–
    (a) that person does not intend to resume living with the other members of his family; or
    (b) his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of his absence) and the absence is unlikely to be substantially more than 52 weeks.”

    The matter is to be determined on a week by week basis (CH/1237/2004)

    You obviously need some more information as to why the absence exceeded 52 weeks, but remember that the 52 weeks in Reg 21 is not necessarily a maximum [cf Reg 7(17) which does provide a maximum of 52 weeks,] and so you could treat them all as members of the same household throughout the period of temporary absence, provided you find at least some exceptional circumstances to justify it.

    I would encourage the person to appeal the IS decision because the DM appears to have taken a far to narrow interpretation of what the regulations actually provide.

    It seems to me that you are not in this case bound by the IS decision and are free to make your own along the lines that I have suggested. Authority can be found in the words of Upper Tribunal Judge Wikely at paragraph 25 of CH/1987/2009

    “25. In R(H) 9/04, as noted above, Mr Deputy Commissioner Paines QC ruled that the effect of ex p. Menear is that a local authority housing benefit decision-maker is bound by a DWP decision on income and capital issues. However, the housing benefit decision-maker was not bound by a DWP decision as to family status – if that point was challenged by the claimant, the local authority had to reach its own conclusion on the issue “especially in a case where, as here, it is unlikely that the DWP’s position represents a considered view” (at paragraph 37). However, a “considered” DWP decision on a point other than income and capital, and so where the DWP and the local authority had parallel decision-making powers, was likely to be satisfactory evidence of a particular state of affairs, at least in the absence of evidence to the contrary (at paragraph 39). The force of the distinction being made here is not, in my view, affected by Mr Deputy Commissioner Paines QC’s partial recantation of some of his comments in R(H) 9/04 in his later decision in CH/411/2007, which deals with the particular point about the status of decisions as to whether a claimant is a “person from abroad” (see further Hillingdon LBC v MJ [2010] AACR 4, originally decided as CH/3079/2009, at paragraphs 20-23).

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