Temporary Absence/Imprisonment and Prohibition Order

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  • #39416
    Junep
    Participant

    Dear all

    Scenario

    Sole tenant with two dependents
    Sole tenant arrested and held on remand from the 10.03.11 before being released from prison on the 13.05.11

    ‘Estranged’ (claimants words not mine) husband moves into property on the 10.03.11 to look after dependents rather than them being taken into care

    Prohibition Order served by the authority’s Environmental Health Department on the 14.03.11 to the ‘estranged’ husband, the landlords agents and the landlord/owners but not to the tenant as she is in prison.

    No request from tenant/claimant for temporary absence following her imprisonment but HB has been allowed until the 17.04.11, which is the default date to the 14.4.11 when the ‘estranged’ husband and the dependents were moved into temporary homeless accommodation.

    So I find myself arguing the following-

    Should I look to terminate the claimants award of HB from the 13.03.11, which is the Sunday following her arrest, as the L/A has not received any request for temporary absence or not?? So far, I think I should.

    I have to take into account that the L/A has not received any application from the ‘estranged’ husband or written request to be treated in accordance with regulation 8 where he is allowed to claim and receive HB whilst resident. I am also struggling to understand why the HB was left in payment anyway; but hey-ho.

    The tenant/claimant on her release from prison never returned to the property in question, in fact she moved into the homeless accommodation with her ‘estranged’ husband and children were still living and yes, you’ve guessed it; they have formed a partnership. When questioned about her intentions to return to the property she states due to the prohibition order she decided the following:

    (i) she would have moved back into the property if the prohibition order had not been served to buy time to save for a bond and then to eventually move. I see this as more of a ‘could of’ intention and not a definite ‘intention to return’, as she is relying on the fact that she was told she couldn’t have returned from an official point of view.

    Having established the above scenario and I need to confirm that the landlords agents are fully aware of all these events, as I now have the landlords agents stating that they should not be responsible for repayment of the HB overpayment for the period of the 18.4.11-29.5.11 (date HB paid up to at time of terminated back to the 18.4.11).

    I can see both points of view but I believe I would be correct in carrying out the following actions-

    1. I need to terminate the award of HB back to the 13.03.11, making the original overpayment period of the 18.04.11-29.05.11 now effective from the 14.03.11 to the same end date.

    2. I believe I am correct in not considering a period of temporary absence as the clmt has not requested one. Not even in response to my written request as part of an ongoing reconsideration query after receiving the recon request from the landlords agents.

    3. I believe I am correct in not allowing an award of HB in accordance with HBR8 of 2006 as the ‘estranged’ partner has not made an application for HB.

    4. That the overpayment is fully recoverable from the landlords agents as they were aware of the circumstances from the outset and failed to advice the L/A of a suspicion that an overpayment may be occurring.

    Or am I completely off target with this decision.

    Any help, advice, comments always gratefully received.
    Many thanks
    June
    :tired:

    #112046
    Anonymous
    Guest

    You don’t need to request HB for temporary absence – if you meet the criteria it is automatic (same as extended payments, unavoidable overlapping liability).

    The ex-partner has not claimed HB as far as I can tell, so why would you need to treat them as liable? Probably would not meet residency criteria anyway.

    I would say claimant remains entitled while being detained (you do not say whether she was sentenced but this doesn’t matter as total period is less than 13 weeks).

    Then maybe a week or so after the release it becomes apparent that the total absence since 10/03/11 will exceed 13 weeks since she no longer realistically intends to return to the property. So maybe end HB on 22/05/09 (give or take a Sunday).

    Any overpayment was caused by the claimant’s decision not to return to the address so I would suggest it is recoverable solely from her.

    #112047
    Anonymous
    Guest

    Then again – you might be able to demonstrate that the claimant’s intention to return ended earlier, while she was still detained. Was the prohibition order notified to claimant in prison? Does she say when she decided not to return home?

    #112049
    Chris Robbins
    Participant

    Hi June,
    I presume by ‘Prohibition Order’ you mean an order by Enviromental Health that deems the property unfit for human occupation. We call them Closing Orders here.
    If that is so I think the situation is fairly simple.
    From the date the prohibition was served there can be no enforceable liability for rent. So, if it was served on 14.3.11 no further rent is due from that date andd the HB award should be terminated accordingly. If you paid the landlords they are your sole target for recovery as they failed to inform you of the prohibition order which was a relevant change of circs. I wouldn’t even bother with the various comings and goings to and from the property.
    By the by, if the Prohibiton Order had been served later I do not understand why you think a tenant has to ‘request payment’ for a period of temporary absence. If a person is temporarily absent for less than 13 weeks with an intention to return there is no relevant change of circs that needs to be reported. The award would simply continue undisturbed. I also think in this scenario at the point she was remanded the intention must have been to return. At that point she had nowhere else to go.

    #112055
    Junep
    Participant

    Thanks to everyone who replied.

    I was unsure as to whether the temporary absence had to be requested in writing but was certain it had to be due to the claimant having to confirm her intention to return etc; but thats fine; learning something everyday. I admit I threw myself a ‘red herring’ there.

    Chris, whilst I never like to disagree with anyone’s opinion what would you do if a claimant already had a legal liability to pay rent prior to the prohibition order/closing order; would you not consider the legal libility to pay rent enforeceable and therefore subject to HB until the end of the next rental period? As is the guidance within the Shelter Guide of 2011/2012 page 30.

    Kind regards
    June

    #112056
    Anonymous
    Guest

    Regarding temporary absence – there is the general duty to notify changes in circumstances and if the LA requests information about the claimant’s intentions you would be entitled to draw inferences if the claimant does not reply. However all temporary absence achieves is to preserve the original situation – you treat the claimant as if they are still occupying the property. Where the criteria are met entitlement continues as normal. This means the claimant cannot lose out by not specifically requesting temp absence or notifying the change late since the effect is neutral – late notification rules are not engaged.

    Agree with Chris regarding the Prohibition Order but I think you might be correct regarding the rental period. Do a search on the forums for Prohibition Order as its come up a few times in the past.

    #112061
    Chris Robbins
    Participant

    Sorry June,
    My comments were based on our reaction to new claims where a Prohibition Order is in force. You are right that a liability should be viewed as enforceable to the end of whatever the rental period is (be it weekly, 4 weekly, monthly or whatever).

    #112066
    Junep
    Participant

    Following such helpful comments, I have again gone over all of the information and evidence available, made a few further enquiries and decided the following (I believe I allowed myself to consider this too deeply and tied myself up in knots).

    Your opinions, comments and advice certainly helped.

    I have therefore decided to-

    1. allow the award of temporary absence due to imprisonment (with reference to the property requiring repairs) for the period from the 14.03.11 to the 15.05.11, as this covers the period of arrest, remand, and sentenced period and falls within a total period of 13-weeks.

    2. I decided that based on the information and evidence available and acquired that the clmt did intend to return but was led by the L/A and the prohibition order that she was unable too. What I took into consideration here was that the landlords agents and owners had been instructed to make good the repairs to the property but have since not complied with that request. I think it is reasonable to assume that the clmt may have believed that whilst she was in prison, it would allow the landlord agents/owner sufficient time to repair the property. Therefore on her release having established that they hadn’t, the clmts intention to realistically return ceased.

    3. this leaves a revised overpayment of HB for the period of the 16.05.11-29.05.11 and who should be responsible for its repayment. I think I was too hasty in my original decision; deciding that as landlords agent received the monies they should repay. Committed the cardinal sin of not considering who has the duty to notify and in these cases I like to use the hierarchy of clmt first and foremost (including anyone acting as their rep etc) followed closely by the landlord etc etc.

    Again, many many thanks for all of you help and advice.

    🙂

    #112068
    Anonymous
    Guest

    Wait a minute what happened to the prohibition order? If rent was charged calendar monthly HB would have to end on 31/03/11, ie the end of the rental period.

    Could it be an official error for the Council to pay HB when a prohibition order has been made by a different department of the same Council?

    #112069
    Junep
    Participant

    Okay, but I thought that if the rental agreement was already in place prior to the prohibition order then HB could be consider up to the next rental period. Thinking out loud as typing this, as everyone gone home but I did ask as a concensus of opinion what team leaders and senior officers thought was a ‘rental period’. Was it to the end of the next period rent was due or to the end of the actual tenancy agreement, i.e. six or twelve month tenancy agreement.

    Most believed that it was the tenancy agreement; bother back to the drawing board. I will hold off on the decision and research the phrase rental period for definitions unless :bigsmile: you can point me too the right place.

    Thanks Mike, sorry to be a pain.

    Kind regards
    June
    :8)

    #112071
    Anonymous
    Guest

    I’m pretty sure rental period is the period over which rent is paid, ie weekly, fortnightly, monthly…

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