Terms & Conditions

[Anonymous]

We have an appeal in which the question has been raised re whether or not the Claimant having been found guilty and sentenced to imprisonment then has a right to 4 week entitlement from the date of sentence. the argument being that, he did not expect to be sentenced and therefore could not have known he would no longer be liable for rent.

Please let me know if you give the run on or not and your reasons for so/or not doing.

Thanks
Monica

[maz]

Reg 7 would apply to sentenced prisoners

(7) Where—
(a) a person has moved into a dwelling for which he is not liable to make payments (“the new dwelling”); and
(b) immediately before that move, he was liable to make payments for the dwelling he previously occupied as his home (“the former dwelling”); and
(c) that liability continues after he has moved into the new dwelling, he shall be treated as occupying the former dwelling as his home for a period not exceeding 4 benefit weeks if he could not reasonably have avoided liability in respect of that former dwelling.

[Anonymous]

Monica, check the temp absence rules. If he was on remand prior to sentence, he is on the 52 wk rule. Immediately he gets sentenced he switches to 13 wk rule and if total absence will likely exceed 13 wks, benefit stops. No 4 extra weeks. Nothing!
Also, is a prison a “dwelling” in HB Regs?
Don’t think Reg 7 would apply in these circs.
Of course, I might be wrong…

[Anonymous]

Thanks for your feedback, we had never received such an Appeal before and everyone in our team had a different opinion, however, I tend towards that posted by nickatsefton so will proceed with that. Monica

[Darren Broughton]

I’d agree with Maz here – Reg 7 can apply to prisoners. Below is extract from A29/2004 which introduced the regulation change –

[i:70f63a0766][b:70f63a0766]Period of notice[/b:70f63a0766]

26 We are aware that in some circumstances HB is not payable even though liability during the period of notice is unavoidable. This has led to problems for various groups of people who have moved unexpectedly to a new dwelling where they do not have a liability to make payments, have had to give up their tenancy on their home but still have a rent liability on that former home to cover the period of notice. For example such cases could be:

· people in hospital, who initially expected to return home within 52 weeks but whose condition deteriorates and either their stay becomes permanent or they are discharged to a care home

· people suddenly taken into hospital on a permanent basis

· [b:70f63a0766]prisoners sentenced to a custodial term of more than 13 weeks[/b:70f63a0766]

27 Regulations have been made to allow HB to be payable from 4 October 2004 for the period of notice of up to four weeks if the liability on the former home could not reasonably have been avoided, and the customer was otherwise entitled to HB for that period. In cases when the period of notice spans this date, benefit will only be payable from 4 October to the end of the 4th week from the first day of the notice period.[/i:70f63a0766]

[Anonymous]

It seems to me that Monica is happy in principle to accept that prison or hospital is a “dwelling” for the purposes of Reg 7(7). I also accept that – it is quite clearly the main reason why that paragraph was inserted in the first place and I think you would be wilfully awkward to argue otherwise. But I know that some highly respected commentators believe this is an example of the legislation failing dismally to achieve its intended purpose, and that the main target groups of prisoners and hospital patients are not covered. But I don’t think that is Monica’s main concern: what she is not so sure about is whether the notice period in such cases was reasonably avoidable. She is thinking along the lines of “if you can’t do the time, don’t do the crime”.

I think the principle of innocent until proved guilty applies here: I don’t think you can reasonably expect someone to give up their home as soon as they are arrested or remanded in custody in the expectation that they will probably be convicted and have to move out anyway. I think it is reasonable to keep your tenancy going until you know for certain that you are going down, and therefore not give notice until that point.

It would be more difficult to justify the run-on from the date of sentence in a case where you were convicted on Date 1 and remanded for sentencing until Date 2. Depending on what you have done, you might reasonably expect from Date 1 onwards that you have a very slim chance of still requiring the dwelling after Date 2, and so it is not reasonable to allow HB for any longer than 4 weeks after Date 1. But it depends very much on the facts of the case, and the temporary absence rule does seem to contemplate that people convicted but not yet sentenced will keep their home on for longer – because they come into the 52 week category, while sentenced prisoners only get 13.

So my answer to Monica is – yes, I would say so for the reasons given above.

Incidentally, the issue of giving notice while already absent and perhaps getting HB for up to four weeks longer than the maximum temporary absence period has never been nailed 100% in any Commissioner’s decision, but CH/2641/2003 comes pretty close to saying that 4 weeks’ notice and 13/52 weeks’ temporary absence are completely separate reasons for treating a person as occupying a dwelling, and there is no reason why they cannot apply consecutively.

[Author]

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