Terms & Conditions

[Chris Cook]

We currently have a case where the claimant went into hospital in March 2006 following a fall. Her next of kin is not involved but her Grandson is.

The grandson arranged for the claimant to go to a hospital nearer where he lives with the intention that the claimant should take up some sort of residential care in the area, when better.

Claimant went into a home for a week but her health deteriorated badly.

She was then admitted back to hospital and is currently still there, although now improving and awaiting to go into residential care.

During this period the Grandson came up to our area and has completely emptied the flat of his grandmother.(6 weeks ago)

We have now become aware that there are 2 lots of social services dealing with this lady. Our local SS has a financial meeting taking place next week to discuss funding.

No one that we are aware of has been appointed to act for this lady in any official manner during her illness.

Questions I have are as follows:

Benefits (HB & PC) were not informed of the claimants absence until 4 months after she left the property, so does this create any problems with temporary absence regs for HB?

Claimant has played no part in the decisions made on her behalf, so who should we be communicating with?

Claimant is aged 95, unable to write but has moments of lucidity, who should be acting on her behalf?

The fact that the flat was cleared by the grandson but he was then “advised” by one of the Social Services Team not to terminate the tenancy as it may cause difficulties, does this count as an act of contrivance by SS to carry on getting benefit paid on an empty flat where it would seem there could be no intention to return (although claimant could return to area if SS do not fund place)?

If a Social Worker acted on her behalf as an appointee is there any conflict of interest, in respect of not making a decision for intention to return?

Any advice would be gratefully received.

Chris Cook

[Kevin D]

HBR 82 applies – see paras 2, 3, or 5.

new.hbinfo.org.com/menu2/hbregs06/082_06.shtml

It’s a common mistake for LAs to accept letters from relatives / other 3rd parties as being enough to treat them as if FORMALLY acting on behalf of the clmt. It isn’t.

The only persons who can LEGALLY be treated as if they are the clmt are those in HBR 82.

A self-appointed appointee is in fact no appointee at all. HBR 82(3) makes it clear that it is the LA’s decision about who is an appointee. The only other circumstances that someone else can be an appointee is under HBR 82(5). In all other cases, only those in HBR 82(2) can be treated as if they are the clmt.

This is important. For example, if a clmt has no one as an appointee etc, any good cause for a backdate claim or any issue of being expected to realise in official error overpayment cases must be considered in terms of the claimant – not a third party (barring misrepresentation etc). If a third party IS a formal appointee etc (under HBR 82), it is the third party’s actions / knowledge etc that must be considered.

My advice is to steer clear of trying to “insist” someone should be acting for her – that is a matter for the clmt and/or other parties. Simply make a decision on the HB claim based on the evidence and information you have relating to occupancy. I would also still send the notifs to the clmt. At a pinch, you might be able to justify addressing the notifs to the clmt, but sending the notifs to a c/o address (e.g. Social Services / the son etc).

The above may appear, at first glance, to be stunningly unsympathetic and unhelpful. However, I’d argue that this approach actually protects the clmt for as long as she doesn’t have an appointee on the grounds that if she can’t handle her affairs, she will tend to benefit from any judgement calls / discretionary decisions that are made on the claim. If a lucid and capable third party is responsible, those same calls and decisions are likely to be much less helpful to the clmt.

Regards

[Chris Cook]

Kevin, thank you for the above.

In respect of your advice how would you look at the payment of HB on her empty flat currently?

Is this covered under Temporary Absence Regs as we have not been informed by the claimant of any of the above but we are now aware she has been in and out of hospital since March 06 (currently in)?

We will not get any answer from the claimant about her intention to return from the information we have been given by the grandson.

Is there scope to suspend/cancel benefit at present?

Any further comments would be welcome.

Chris Cook

[Kevin D]

Chris,

If the facts you have stated were on my desk right now, I’d decide as follows:

1) temp absence upto the date the furniture was still there. Your comment “in and out of hospital” suggests there has been an intention to return.

2) from the date the flat was emptied (or at least the following Monday), no further entitlement on the grounds that there is no intention to return. It is hard to imagine that the clmt has an intention to return to a home with absolutely zero furniture.

[[b:57d1c88eb6]Edit[/b:57d1c88eb6]]. A “desire” to return home is not enough – it must be an intention and the intention must be realistic [[b:57d1c88eb6]CSHB/0405/2005[/b:57d1c88eb6]].

In the event of an “appeal”, it’s worth remembering that any appeal MUST be signed by the [u:57d1c88eb6]clmt[/u:57d1c88eb6]. It isn’t enough for the son, or Social Services to sign it. A 3rd party can only sign an appeal if they fall within paras 2, 3 or 5 of HBR 82.

Regards

[Author]

Posts