Home sweet home
David Simmons examines a recent First-tier Tribunal decision which looked at the issue of housing benefit (HB) entitlement for a long stay hospital patient who only returned to his normal home for occasional visits.
We are grateful to the Welfare Rights Service of the Camden and Islington Community Mental Health Team for sending us details of this tribunal decision, which although not binding on decision makers, provides a helpful analysis of the law and criticises official guidance to local authorities in the Housing Benefit and Council Tax Benefit Guidance Manual, which is frequently used to deny HB to long-stay hospital patients.
Facts of the case
The appellant suffers with severe mental health problems. He was a long-stay patient in psychiatric hospitals for a period of just under two years before the local authority decided that he was no longer entitled to HB because he had been absent from his home, which he rented from the council, for more than 52 weeks. He had returned home for one overnight stay within a year of becoming a patient but only subsequently made occasional visits to the property to sort through his belongings, liaise with the council about repairs and generally prepare for his eventual discharge from hospital and resumption of independent living, which his treatment was designed to facilitate.
HB is payable to a person in respect of a dwelling occupied as her/his home.1Regulation 7(1) of the Housing Benefit Regulations 2006 says this is ‘….the dwelling normally occupied as his home’. Regulation 7(16) and (17) requires a person who is ‘temporarily absent in prescribed circumstances from the dwelling he normally occupies as his home’, to be treated as remaining in occupation for up to 52 weeks of a temporary absence, beginning from the first day of that absence, as long as s/he intends to return to live in the dwelling, has not let it, and the absence is unlikely to exceed 52 weeks (or, in exceptional circumstances, substantially exceed 52 weeks). One of the prescribed circumstances is that the person is a hospital inpatient.2
The appellant appealed on the basis that he had never been absent from his home for more than 52 weeks because each visit home triggered a new period of absence. The local authority argued that the period of absence could only be broken by a night spent at the property and that the appellant was no longer entitled to HB after 52 weeks without spending a night at home. It cited official guidance to decision makers which suggested that a stay of less than 24 hours may not be sufficient to break the period of absence (see below).
The tribunal’s decision and reasoning
The tribunal judge confirmed that although the wording of regulation 7(1) appeared to allowed for temporary absences by referring to the dwelling ‘normally occupied’, it is subject to the rest of regulation 7, so that regulation 17(16) and (17) forms a ‘comprehensive code’ for determining whether HB is payable during a temporary absence due to hospitalisation or the other circumstances listed in regulation 7(16)(c). In other words, a person can only be treated as normally occupying her/his home and thereby entitled to HB while in hospital if the conditions in regulation 7(16) and (17) are satisfied (he cites paragraphs 17–19 of R(H) 9/05 in support of this).
Turning to those conditions, the judge decided that the appellant’s absence was ‘temporary’, which simply means ‘not permanent’. He was also never absent, or likely to be absent, for more than 52 weeks because his visits to the property broke his periods of absence and triggered the start of new periods of absence. He derived support for this approach from the judgment in R v Penwith District Council ex parte Burt (1990) 22 HLR 292 where it was held that a period of absence is ended by a return to the home ‘however short’ and that HB can only be terminated after a ‘literally continuous period of absence for 52 weeks’. He concluded that any physical presence in the dwelling which is not de minimus (ie, too trivial or slight to be taken into consideration – eg, returning to a property to check the post) is sufficient to bring a period of absence to an end. There is, in particular, no requirement for a person to have spent the night in the property. In the appellant’s case, all his visits involved him being physically present in the property for more than trivial periods of time and therefore triggered a new period of temporary absence.
In this context, the judge was critical of the official guidance cited by the local authority set out in paragraph A3.460 of the Housing Benefit and Council Tax Benefit Guidance Manual, which states:
‘any return to the normal home which is a genuine re-occupation of the home will end a period or temporary absence. If the period of return is short, you will need evidence to prove the stay was genuine. Whether the stay is genuine is a question of judgment. For example, a stay lasting only a few hours may not be acceptable, but one that lasts at least 24 hours may be acceptable. It all depends on the facts of the case. If the stay is not considered genuine, the temporary absence will not have stopped.’
The judge decided that the guidance was a misstatement of the law and not binding on him because regulation 7(16) and (17) treats a person as occupying a home during a temporary absence and there cannot, therefore, be a requirement for him to ‘re-occupy it’ (far less ‘genuinely’ re-occupy it) on his return. All that is required is physical presence, which is not de minimus. In this regard, the judge also disagreed with an obiter direction in paragraph 18 of CH/3014/2005, that it is necessary to return to occupy a property as the home to end a period of absence. The judge also points out that the direction confirmed that a return for a ‘very short period’ would suffice, that the official guidance did not refer to the need for an overnight (or 24 hour) stay and that it was held in R(H) 9/05 that a person could occupy premises containing her/his belongings and furniture without living or spending the night there.
The decision confirms that it is possible to break a temporary period of absence from accommodation normally occupied as the home and trigger a new period of absence by a return visit which is anything more than de minimus. The reasoning applies to both the 52 week absence rule in regulation 7(16) and (17) and the 13-week absence rule in regulation 7(13).
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