Temp absence/no intention to return

Currently, there are 0 users and 1 guest visiting this topic.
Viewing 14 posts - 1 through 14 (of 14 total)
  • Author
    Posts
  • #31909
    Lee Horwell
    Participant

    Wondering if anyone can help with this query.

    Couple claim in payment, then claimant passed away 4/5/10. Partner went into temporary residential care on the same day, as she was deemed incapable of looking after herself (I’m still trying to ascertain from the Social Worker whether there was any possibility of her returning home with an appropriate care package).

    We’ve determined that as there does not appear to be an intention to return to the property (or it’s unlikely that any intention to return could be realised) that temporary absence rules do not apply, therefore, no further HB can be paid.

    Unfortunately, it seems that someone has advised the family that HB can be paid for 13 weeks, so the tenancy has not been terminated for 3 months.

    It seems really unfair that no HB can be awarded, but I think it’s pretty clear cut that temp absence rules are not applicable.

    Can anyone see any way of paying any additional HB under unavoidable liability, bearing in mind that she wasn’t the original customer?

    Any help would be really appreciated 😕

    #89220
    Kay_Tade
    Participant

    1) Did she ever make a claim? If not there is nothing to consider at all. 😳

    2) If she did make a claim then I would say that in itself is an intent to return to the property but that’s a moot point without knowing 1 above.

    #89221
    twil
    Participant

    Hi

    Think the person was thinking of the trial period, claimant can go into a care home for up to 13 weeks on a trial basis to see if they like it or that it is suitable for their needs.

    Theresa

    #89222
    Lee Horwell
    Participant

    She did make a claim, but on the form a relative indicated that she was unable to live alone; – however, this was completed two months after her husband passed away.

    #89223
    Kay_Tade
    Participant

    As the claimant is of pension age, assuming that is, then you would be going back three months.

    Was the claim prompted by the knowledge of temporary absence? If so when was this? When was the decision not to return made? Was there ever any intention to return?

    I think the Social care worker should know all of this and then the time line should help make up your mind either way.

    #89224
    Lee Horwell
    Participant

    Thanks Kay

    As soon as her husband passed away we were notified of this and also that she had gone into residential care.

    As far as we know, there was never any intention to return as indicated on the original claim form (or at least, not one that could have been realised anyway) as per Social Services and the Care home.

    It seems that the main reason the tenancy was left open was because the family were misadvised that HB could be paid under temp absence rules, even though there appears to be no intention to return to the property – customer suffers from progressive dementia.

    #89225
    Kay_Tade
    Participant

    If you think you can show that there was no intention to return then I would say Temp absence rules can’t be engaged. I guess the onus is on the claimant to show there was an intent.

    #42200
    Lee Horwell
    Participant

    Thanks for that.

    Can anyone see any way that I can use unavoidable liability in this case, linking from the husband’s claim before he passed away?

    #89226
    Kevin D
    Participant

    On the specific issue of occupancy, I agree that if there was no realistic intention to return to the dwelling, HB cannot be paid under the temporary absence rules. HBR 7(11) makes it clear there must be an intention to return and case law has established that such an intention must be realistic.

    The only possibility, subject to there being a valid claim, would be 4 weeks under HBR 7(7), but only if all of the critria in sub paras a to c are satisfied.

    #89227
    Lee Horwell
    Participant

    Thanks Kevin, that’s what I was wondering.

    However, as the original customer had passed away, can I link the 4 weeks onto the original claim following Mr’s date of death – Mrs was still liable even though she wasn’t occupying as her home and had no apparent intention to return?

    Her claim was refused due to non-occupancy (due to the lack of intention to return).

    Just trying to find any loophole so I can at least pay something!

    #42203
    Anonymous
    Guest

    The solution would be to revise the decision on her claim and award her HB for four weeks under Reg 7(7).

    It’s a pity those representing her weren’t better briefed about the residential care trial period rules before they started blabbing. The case of “Selby and Another” highlighted a subtle difference between the trial period rules and the general temporary absence rules: for a trial period in residential care, you only need to have an intention of returning at the point qwhen the trial begins. If at any point during the next 13 weeks you are minded to make it permanent, you are still covered for the full 13 weeks. Whilst the intention to return must be a realistic one, it doesn’t have to last very long. Once people realise that, they should be able to find a way of saying the right thing.

    #89228
    Lee Horwell
    Participant

    Thank you very much, Peter,

    At least 4 weeks HB is better than none at all (although I don’t think they’ll be overly chuffed to still have 3 months rent still outstanding)

    #89229
    Anonymous
    Guest

    Hiya Lee

    I am pretty sure that for the four week ‘run on’ to be awarded where the claimant has moved into a residential home, the rule can only be applied following an award of HB during a trial period – The fact that the claimant had no intention to return to the property means that we can’t pay initially based on temporary absence, which in turn means we can’t pay the additional 4 weeks.

    There is a case study – see Zebedee 2010/2011 page 38 DWP vs Selby R(H) 4/06

    Hope this helps

    Helen
    x

    #42206
    Anonymous
    Guest

    Actually just occurred to me it’s 7(6)(d) rather than 7(7), as there will be a iability to make payments for the care home.

    Either way, in my opinion HB under one of those provisions does not depend on the person having been previously treated as occupying while temporarily absent. It is perfectly possible to go directly from actual physical occupation to a four-week notice period under 7(6) or (7), without being temporarily absent first. Reg 7(6)(d) & (7) are there for anybody – you don’t have to be moving into a care home.

    The point about Selby and the associated commentary in Zeb is that if you begin a trial period in a care home, then decide to make it permanent and give whatever notice you need to give to your former landoord, all within 13 weeks, the trial period rule covers you without it being necessary to rely on paras (6) and (7). Whereas if you give notice to your former landlord while not currently undergouing a trial period in a care home, you do have to rely on (6) or (7). The claimant in this case was not undergoing a trial period in a care home because, we are told, it was and was intended to be permanent from the outset, so she has to rely on Reg 7(6)(d) and can only get four weeks of HB.

Viewing 14 posts - 1 through 14 (of 14 total)
  • You must be logged in to reply to this topic.