Terms & Conditions

[delsa]

Could someone out there give any advice?
We have a couple of cases (1 with Tribunal Service) where the claimant has been recalled to prison whilst on licence for breaching the terms of the licence. They were returned to prison, awaiting a parole board hearing to determine if they could be re-released (in effect serving the remainder of their orgiginal sentence).
In both cases, they have requested that HB be granted on temp abs on the grounds that they are on remand.
However, as they have been recalled to serve the remainder of their sentence until a parole borad determines that they may be released, we consider that they are not on remand but sentenced (& in both cases sentenced to in excess of 13 weeks). Therefore, HB should not be payable as they are not temporarily absent.

Has anyone else had any similar cases & if so, what have you done about them?

Any suggestions? 😕

[Anonymous]

Definately not on on remand (pending trial or sentencing). We have had a couple of cases of this type, one which we paid (only 3 months of sentence to go), and one which we did not as sentence had over 1 year to serve (no appeal was subsequently received – and yes, we did send the notifs to the correct address!) 😉

[Kevin D]

No direct experience of such cases, but hopefully this may help.

Given that the clmts have actually been sentenced and the absences are likely to exceed 13 weeks, it *appears* that the correct decision has been made.

On the basis of the info available, I don’t see how the clmt’s can claim to be “on remand”.

In anticipation of a possible argument that the clmts “intend” to return to the property within 13 weeks, this CD may help. In [b:80f4874f8e]CSHB/0405/2005 (p30)[/b:80f4874f8e], the Cmmr found that “intention” must be realistic. I’m less than convinced that the clmt’s could satisfy the “realistic” requirement given that their release date is subject to the decision of a third party.

[Anonymous]

I agree with Kevin D. My dictionary defines remand as “to send someone accused of committing a crime away from court until their trial begins”.

He’s not on remand; he has been sentenced. He is simply serving more of his sentence until he’s let out again.

Cheers,

Darren

[delsa]

😛 Thanks for the advice/info.

I’ve also been in contact with Adelphi who confirm that as the claimant has been recalled to continue their original sentence, and are not awaiting sentence, they are not deemed to be on remand, but serving the original sentence. As the sentences were for more than 13 weeks, no HB is payable from the date they are recalled. Obviously the prison are not happy with this decision & have said that other local authorities are paying these types of claimants as they are deemed to be on remand!

Advised him of appeal rights – will see what happens as we have one of these cases at Tribunal in January. 😛

[Kevin D]

[quote:1df5e3f50c]Obviously the prison are not happy with this decision & have said that other local authorities are paying these types of claimants as they are deemed to be on remand! [/quote:1df5e3f50c]

delsa;

Even if other LAs are indeed paying, that doesn’t make it right. However, I wouldn’t necessarily take it as read that LAs are in fact paying as claimed by the prison service……at least not as many as suggested.

For example, in the not too distant past, a LA refused payments on 2 homes cases where clmts were consistently moving in 2-3 weeks after liability commenced [HBR 7(6)(e) cases]. The L/L responded, somewhat indignantly, that ALL other LAs in the area were paying in identical circs. The LA asked the L/L to name the other LAs. When push came to shove, the L/L could only name two other LAs…… (who, as it happens, were indeed paying incorrectly).

Regards

[Anonymous]

Hi

Any news on the outcome of this case? I have received a similar case in which the clmt has been recalled. His original release date was set as 2010 (determined in August 05). Even if he serves 1/2 his sentance, he in theory would have been in prison for more than 13 weeks. Can you let me know?

Thanks
Sara

[delsa]

Our first case was heard on monday & we recived the decision yesterday.

The chair stated that he was not on remand BUT has allowed the appeal. The chair has said that he was considered to be on temp absence as when he was recalled he hoped to be be re-released within 13 weeks (even though he was returning to serve the remainder of a 7 year sentence). The chair does not even appear to have considered that when he was recalled he was to serve the remainder of his original sentence, and that that being over 13 weeks would exclude him under regs.

We are now in talks with our team leaders about the possiblity of taking the case to Commissioners on a point of law.

Will keep you informed (but if anyone else has any experience of such cases, could you let me know).
😕 😯 😕

[Anonymous]

Delsa, I would be rushing and banging on the Commissioner’s door with that one. 😉
There is a CD (often quoted by Kevin D)not in this context, but stating that it must be realistic for them to return home as well; not just the hope, but the realistic expectation.

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

I don’t think there can be any realistic expectation in this case – unless your chair reads and believes everything in the pages of the Daily Mail 8)

[Kevin D]

Oddly enough, I fully endorse Jon’s response 😉 .

Talking of the Daily Mail, I admit to reading it. In fairness, this tends to be when eating out and finding that it is the only paper not yet “borrowed”, or being read (wonder why that is?). To be clear; I don’t buy it…… 8)

[Anonymous]

I think you have a very strong appeal case here – and you don’t even need to rely on the argument that the Tribunal misinterpreted “intention to return” in the light of the case that Jon and Kevin mention. There is another, arguably more straightforward reason why the decision is wrong in law: it completely misses Reg 7(13)(c) – absence must be unlikely to exceed 13 weeks. Assuming that there are still years to serve, rather than weeks or months, I do not see any way that the Tribunal could have reached a rational conclusion that the absence is unlikely to exceed 13 weeks – indeed, it does not sound as if the Tribunal considered the likely length of absence at all. Obviously the statement of reasons might answer these criticisms but from what you say I doubt it.

[Anonymous]

Thanks for your reply’s- let me know the outcome.
We have cancelled ours now as he has original sentance was until 2010, my maths are rusty, but even I don’t think he will be out in 13 weeks!

Thanks
Sara

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