CB v Liverpool City Council (HB) (Housing and council tax benefits : occupation of the home, two homes and temporary absence) [2015] UKUT 359 (AAC) (24 June 2015)
IN THE
UPPER TRIBUNAL Case
No. CH/144/2015
ADMINISTRATIVE
APPEALS CHAMBER
Before Judge Mark
Decision: The appeal is dismissed, but for
different reasons from those given by the First-tier Tribunal..
REASONS FOR DECISION
- This appeal
is brought with the permission of an Upper Tribunal Judge from a decision
of the First-tier Tribunal dated 23 October 2014 disallowing the appeal of
the claimant from a decision of the council dated 9 July 2014 that she was
not entitled to housing benefit for the period from 3 March to 29 May
2014.
- The
claimant was the tenant of a flat where she lived with her two children.
She was in receipt of housing benefit until 2 March 2014, but on 26
February 2014 she was sentenced to a one year term of imprisonment,
commencing that day. A prison link worker at the prison to which she was
committed helped her complete a form on 28 February 2014 in which the
prison address was given and in which she notified the council of her
imprisonment, of the earliest date on which she could be released (27
August 2014) and a Home Detention Curfew (HDC) date of 29 May 2014. The
last date was the date on which she could be released subject to a home
curfew between 7.15pm and 7.15am each night. The form confirms that the
claimant did not get any income while in prison and that she intended to
return to her home address. There is no suggestion that anybody else was
living at her home, or even visiting it, while she was in prison.
- This
information is said to have been received by the council on 4 March 2014.
According to the council’s summary of facts, on 24 March 2014 the
claimant’s entitlement to housing benefit was terminated with effect from
2 March as she was not going to return to the property within 13 weeks of
sentencing. There is no copy of any such decision on the file and no
suggestion that the claimant was notified of it except in relation to the
overpayment decision referred to in the next paragraph.
- On 25 March
2015, a benefit decision notice was issued. It was the calculation of an
overpayment of housing benefit of £72.85 for the period 3 to 9 March 2014
which was said to be recoverable from the claimant’s landlord in due
course. The reason for calculation was said to be “Cancellation”. This
appears to have been the only indication sent to the claimant that her
housing benefit had been cancelled, and it would appear from the document
itself that it was sent to her at her home. There is no evidence that it
was ever forwarded to her while in prison or that she was aware of it before
her release under curfew on 29 May 2014.
- When she
was released on curfew, it was in fact on terms that she stayed overnight
with her parents. In the written submissions made on her behalf to the
tribunal, and in the oral evidence as recorded in the record of the
proceedings, this is stated to have been because the HDC equipment
required a landline, which she did not have at her home and for access by
the Probation Service. In oral evidence, however, it is also stated that
she went to her home every day and spent time there and the written
statement of the claimant to the council dated 14 July 2014, supported by
a declaration of truth, states that she was in her own property throughout
the day.
- On 2 June
2014 the claimant made a fresh claim for housing benefit, asking on 27
June 2014 for it to be backdated to 3 March 2014. The backdating request
was refused by the council. The decision to refuse it is dated 8 July
2014 and states that the claimant had been absent from the property for
“over 13 weeks (just) and not returned to home address. therefore unable
to award B/D.” It also stated that good cause was not proved by the
claimant (file p.9). The letter informing the claimant of the decision
states that the council can only backdate benefit if the claimant had good
reason for not claiming earlier, but then states that “our decision is not
to award backdating on the grounds that you have been released on curfew
to your Fathers address, and as such have not returned to [your home].”
- On appeal,
the tribunal found that the period of 26 February 2014 to 29 May 2014 was
exactly 13 weeks. With some considerable regret, I disagree. 26 February
2014 was a Wednesday and 29 May 2014 was a Thursday. The day when the
claimant was taken to prison is to be included in calculating the period
of absence from the home and the date of release is not to be included
(see KdeS v Camden [2011] UKUT 457 (AAC). Including both Wednesday
26 February and Wednesd
- ay 28 May, but
not the date of release (29 May) the claimant was absent from home for 66
days or 13 weeks and 1 day.
- The
tribunal went on to find that the claimant stayed in her own home outside
the curfew hours and the hours when she was working, and that her
belongings and her children’s belongings continued to be kept in her home
and that she continued to maintain and clean it from her release. It
found, however, that the provisions in regulation 7(16)-(17) of the
Housing Benefit Regulations 2006 did not apply to the claimant because she
was being detained in custody following conviction, and appears to have
concluded that she was not therefore entitled to rely on the more general
provision of regulation 7(13), which provides that subject to paragraph
(17) (which, as it correctly found, did not apply) “a person shall be
treated as occupying a dwelling as his home while he is temporarily absent
therefrom for a period not exceeding 13 weeks beginning from the first day
of that absence from the home only if – (a) he intends to return to occupy
the dwelling as his home; and (b) the part of the dwelling normally
occupied by him has not been let or, as the case may be, sub-let; and (c)
the period of absence is unlikely to exceed 13 weeks.”
- It is plain
that the claimant’s home remained her home during her imprisonment in the
sense that, as required by regulation 7(1), it was the dwelling normally
occupied as her home. However, that general rule only applies subject to
the following provisions of that regulation, and it is plain that if a
person is personally absent temporarily from the dwelling then that person
must bring him or herself within one of the subsequent provisions of the
regulation. It is also plain that, on the finding of the tribunal, the
claimant did return to her home and use it as such so far as she was able
consistently with the terms of the curfew from the date of her release.
She was therefore no longer absent from it from that date onwards even
though she was prohibited from sleeping there at night.
- Given the
tribunal’s finding that the period of absence did not exceed 13 weeks, it
appears to me that the appropriate course was to consider the application
of regulation 7(13), including the question whether the claimant had good
cause for the delay in applying for backdating. It is plainly a prospective
provision which ought to have been taken into account by the council
before deciding whether to supersede, or as it put it, cancel the award of
housing benefit in March 2014. In reality the appeal before the tribunal
was as much against that earlier decision as the refusal to backdate and
it appears to me that there was probably good reason to treat the appeal
as an appeal out of time against the original supersession decision and to
extend time on the basis that there was good reason for the delay, namely
that the claimant had been in prison and had not learned until her return
of the decision which had been taken. Alternatively there were clearly
similar grounds on which the tribunal could have held that there was good
cause for the delay in claiming benefit for the period in question.
- Given the
grounds on which permission to appeal was sought, I also have some
difficulty in seeing how the judge considering the application could
possibly have considered that the statement of reasons (contained only in
the decision notice) was adequate when it totally failed to explain why
regulation 7(13) should not assist the claimant.
- Even,
however, with every possible finding of fact in favour of the claimant,
for the reasons I have given, the period before she could be released
under curfew was one day more than 13 weeks, so that regulation 7(13)
cannot assist her.
(signed) Michael Mark
Judge
of the Upper Tribunal
24
June 2015
