Tempoary Absence – Prisoner and HDC

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  • #22476
    JamesPickering
    Participant

    We have a case where a claimant has been sentanced to 10 Months in Prison.

    However, according to his Prison staff he will be eligible for Home Detention Curfew (HDC) after 11 weeks of his sentance and it is likely that he will qualify.

    My question is whether he is entitled under the Temporary Absence rules as he retains his intention to return. my concern is that he misbehaves in Prison or something happens and he does not become eligible after 13 weeks.

    The guidance manual talks about reviewing the claim if he does become entitled and then awarding HB under the Temporary Absence rules. This won’t do him much good though as he will have been evicted in the meantime for non-payment of rent.

    Any comments very much appreciated.

    James

    #8216
    Kevin D
    Participant

    The crux is whether the HDC means that he is still deemed to be detained in custody. I haven’t had time to check the detail, but does HBR 7 (paras 14 & 15) apply?

    new.hbinfo.org.com/menu2/hbregs06/007_06.shtml

    Regards

    #8217
    JamesPickering
    Participant

    Thanks Kevin but I think that talks mainly about any tempoary release for prisoners who are granted home leave.

    I think it means that any return home under that basis should not be counted and therefore the 13 week clock should not start running again based on this (does that make sense or does it just make sense to me).

    I blame the lenient judge 😉

    #8218
    markp
    Participant

    I think you’re right on that. The analysis in the Findlay for Old Reg 5(8ZA) covers this and would still deem the individual as detained in custody. Therefore he would still be treated under the temp absence rules for thirteen weeks from imprisonment and not each time there is any HDC release.

    My understanding anyhow.

    Do I know what I'm doing? The jury's out on that........................

    #8219
    andyrichards
    Participant

    I disagree. There is a distinction between Home Detention Curfew and temporary release. Prisoners on HDC will be entitled if the length of the absence from home is within the relevant limit. If HDC means that your claimant will be back home in 11 weeks then he is entitled.

    #8220
    JamesPickering
    Participant

    Andy,

    I agree with your comments but my problem is that the claimant will be eligible after 11 weeks but that does not mean that he will actually start on HDC because he could misbehave or be convicted of another offence whilst in prison.

    My concern is:

    a. paying HB and then he doesn’t come out
    b. not paying it meaning he loses his flat but then him coming out after 11 weeks on HDC and complaining that he is homeless as we haven’t paid the rent.

    #8221
    David
    Participant

    The absence from home rules are clear that if clmt expects to return home within 13 weeks, there is entitlement to HB. If that intention changes at any time during the 13 weeks, then the claim must end.

    I think you will need to keep in touch with the prison to see if circs. change leading to you stopping HB.

    #8222
    Anonymous
    Guest

    I agree with David and Andy. At present the intention is to return within 13 weeks therefore HB is payable.
    If the situation arose that the person was not going to return within 13 weeks, then you should stop HB as soon as it became clear that he was not going to return, on the grounds that the person can no longer be considered resident from [b:4a5f1ca627]that[/b:4a5f1ca627] date. 8)

    #8223
    JamesPickering
    Participant

    Perfect, thanks for all the posts.

    James

    #8224
    Darren W
    Participant

    I remember seeing something about this and it went something like this.

    At the moment his sentence is more then 13 weeks so he does not qualify. However should after 11 weeks he be released on HDC, then you can revist the decision and award benefit.

    Unfortunatley I cannot recall where I saw it.

    #8225
    JamesPickering
    Participant

    Darren I think that comes from the Guidance manual (see below)…

    [quote:f2888c4b93]3.216 If a prisoner later qualifies for the HDC scheme and returns home within 13 weeks their claim may be reviewed and benefit may be awarded under the standard (13 week) temporary absence rule.
    [/quote:f2888c4b93]
    Problem is if I wait and then review the claim he won’t have a home to pay rent on.

    #8226
    Anonymous
    Guest

    Darren’s comment refers to guidance that is [b:9cc8187bc9]advantageous[/b:9cc8187bc9] to the claimant: it is talking about cases where you originally expected the claimant to be absent from home for longer than 13 weeks but then that expectation changed with eligibility for HDC.

    In James’s case it is already known and expected in advance that the absence will end after 11 weeks.

    The balance of probability in this case is that the claimant will end his absence from home after 11 weeks – there is no reason to think that he will probably forfeit his eligibility for HDC. It seems more likely than not that he will come home under HDC. You cannot be 100% certain, but you don’t need to be – likelihood is sufficient.

    #8227
    Kevin D
    Participant

    I agree with Peter that the standard of proof is likelihood – i.e. balance of probability.

    So long as the intention is realistic (on the balance of probability), that should be enough. Just to clarify – “desire” is not enough. It must be intention, and such intention must be realistic.

    Regards

    #8228
    kareena2b
    Participant

    I need clarification on this- clmt goes into prison Mar05-we are unaware-NHB8 recvd and claim cancd,
    in Oct05 new claim made as he is on a TAG-(he tells us he was sentanced in June05-) but he will not be going to his home address through fear of violence (he tried robbing his neigbours)
    we have paid this-not sure if this was right.
    He gets sent back to prison on 8Oct05 and gets released 12wks later on original release date-should we pay?
    He makes new claim on his release but states still too frightened-stopping at his mums. He isentitled to benefit whilst absent-but when do I start counting from? he hasnt been home since March 05.thank you

    #8229
    Anonymous
    Guest

    You count from the first day of absence from the normal home, so I don’t see how you can continue paying for his usual home at all.

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