Temporary Absence – Local Authority Error?

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  • #23213
    Stalbansbenefits
    Participant

    Do you ever get two-thirds the way through an appeal and then start doubting your decision?

    Claimant held on prison on remand. He (or rather his social worker) lets us know, indicates that the claimant intends to return, property not sub-let etc.

    We write to claimant c/o his prison informing him that his benefit will continue as long as it appears his absence will not exceed 52 weeks etc. In the meantime, he has actually transferred to a mental health hospital (again Social Worker notifies us), so letter is returned ‘not known at this address’.

    As claimant is receiving medical care etc, we leave benefit in payment. [b:12a4b73a17]18 months[/b:12a4b73a17] later we discover claimant is still in hospital and during this period has not returned home at all.

    Benefit is terminated from date 52 weeks on from date of first absence, claimant appeals against overpayment.

    What I am now thinking is, given we were aware tenant was in hospital we should have ‘kept an eye’ on the case to ensure his absence didn’t exceed 52 weeks. Given that we didn’t, it is was caused by LA error.

    My second thought is the claimant didn’t contribute to this error – although claimant has a responsibility to notify us of changes which he might reasonably be expected to realise might affect his benefit, it is reasonable to expect this claimant to understand the rules on temporary absence and Housing Benefit and therefore notify us after 52 weeks of absence? – Probably not, especially considering he never received the letter we sent regarding this matter.

    Any thoughts??

    #11500
    Anonymous
    Guest

    I think I agree with you that the Council doesn’t seem to have a strong case.

    To stand any chance at all, you would need to establish that the claimant or someone else with a duty to disclose was put on notice about the significance of the 52-week milestone so that it was reasonable to expect them to contact you and say “I am still absent”. Even if you get over that hurdle, you still have a problem for three reasons as I see it.

    First, there was no change of circumstance to disclose at the 52-week stage – the claimant was absent in week 51 and still absent in week 52 so that makes it hard to say that the claimant primarily caused the overpayment to happen. Maybe he failed to stop it happening, but I think that’s a weaker statement.

    Second, even if the claimant is in some way guilty of a failure to act, common sense a la Sier says that the Council knew all along that HB cannot be paid for longer than 52 weeks in any circumstances, so what on earth would be the point of the claimant getting in touch? Nothing he could say would change the simple legal fact that his benefit must end at that point. By far the more dominant cause of the overpayment was the Council’s quite separate and independent failure to attach some kind of automatic diary event to the case.

    Finally, that being the main cause of the overpayment, I don’t think you can say he contributed to [i:ab95514448]your error[/i:ab95514448]. The claimant had nothing to do with the Council’s failure to set a diary event.

    If this werre my case I think I would be revising the overpayment decision without troubling the Tribunal.

    #11501
    Kevin D
    Participant

    This is the old chestnut about predictable changes.

    At first glance, CH/0687/2006 should be very helpful in looking at the kind of predictable changes an LA should act on, and those it does not need to.

    BUT, I understand that leave has been sought to appeal against CH/0687/2006, so caution is needed.

    All sorts of thoughts come to mind, so, in no particular order:

    1) Was the O/P really caused by an official error? OR,

    2) Was the “common-sense” cause the clmt’s failure to notify you of the change? (Sier?)

    3) The notification sent to the Prison was, presumably, sent to the clmt’s last known address. There is no error in that action.

    4) If the O/P is recoverable, is this one of those cases where the LA should exercise discretion and choose not to recover?

    Tough case – rather you than me…. *helpfully* 🙂

    #11502
    petedavies
    Participant

    Not quite sure how helpful this is going to be, probably less than useless but still…

    …A number of people at my current authority recently attended some appeals training provided by an external consultant.

    One of the peripheral issues that came up related to the overall time bar on appeals and when an appeal can be accepted, even if outside the regulatory timescale.

    It was not something I was aware of but if somebody is sectioned under the mental health legislation “The clock stops on everything”.

    The training providor had an appeal accepted under this proviso but has been unable to provide any further information at all. Whether ‘everything’ relates to litigation or, literally everything (including the period of absence) I do not know. I have not been able to find anything although, to be honest, I have not looked aprticularly hard.

    As far as the OP is concerned, I’m pretty much with Peter B – it is arguable that the change in the situation from remand to treatment would be a reportable CiC but the cause was the Council paying beyond the 52 week limit. The only duty the claimant would have had as far as I can see would be to notify the L.A. on return to the property.

    #11503
    Anonymous
    Guest

    I am representing in CH/687/2006, but whatever the eventual outcome of that case, I dont think it has any bearing, other than to note what the deputy Commissioenr said about a dependants 19th birthday and tax credits.

    In the present case, I doubt very much that the change from remand to treatment would have any bearing on HB/CTB because under both scenarios, the maximum absence is 52 weeks before entitlment to HB ends.

    I cited CH/1237/2004 in my application for leave to support an argument that the LA should have kept the case under review and there may be an official error if the LA fails to do so

    The Deputy Commissioner held in CH/1237/2004 that where a claimant is temporarily absent from his home, ongoing entitlement to HB falls to be determined on a week by week basis.

    I think that continuing to pay for 18 months is these circumstances is an official error and therefore the overpayments are unlikely to be recoverable.

    #11504
    Kevin D
    Participant

    There is another CD, [b:554bf55288]CH/0501/2006[/b:554bf55288], where it was found that temp absence should be determined on a week by week basis.

    Having had a quick look at both CDs, I’m not convinced that they have the effect of requiring an LA to REVIEW cases on a week by week basis. It could be argued that the CDs are simply pointing out that the length of absence is to be judged on a week by week basis; not that the claim must be under a pro-active week by week review by the LA. But, as stated, I’ve only taken a quick look at the CDs in question.

    Regards

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