Forum Home → Discussion → Housing costs → Thread
Temporary Absence - Occupying as a home
forum member
Edinburgh Housing Advice Partnership (EHAP)
Total Posts: 22
Joined: 23 March 2011
I am assisting a pension-aged client who is trying to claim HB/CTB, but has been refused as she has been temporary absent for more than 13 weeks. Her argument is that she returns regularly to her tenancy (several times per month). But, the LA say no as she never stays overnight. Can anyone point me in the right direction for some authority on whether “occupying as a home” must be overnight. Thanks
forum member
Community4 Floating Support, Wiltshire
Total Posts: 8
Joined: 15 November 2012
In short, no, she does not have to stay overnight in the property. There was a case way way back (have no idea of case reference) that held that any period of return in which the claimant occupies the dwelling as a home, no matter the length of time, is enough to end the period of temp absence. I don’t think she can walk in the door, have a glass of water and walk out expecting another 13 weeks HB, but if she was going home, perhaps cleaning, cooking, eating for a few examples, then perhaps this might be enough to constitute a period of return.
Hope that helps-sorry I can’t remember the details, but I believe it is referenced in Zebedee/Ward.
forum member
Solicitor, French & Co Solicitors, Nottingham
Total Posts: 140
Joined: 6 November 2012
I think the relevant case is R V Penwith.
In the case of R v Penwith DC HBRB [1988] 22 HLR 292;para A3/3.460 GM ex parte Burt it was held that the 13 week and 52 week time limits refer to absences which are continuous. If the claimant returns to, and occupies the dwelling as a home , even for a short time, the allowable period of temporary absence starts again. The DWP suggests (GM A3.460) that a stay at home lasting for example, only a few hours may not break the absence but one that lasts 24 hours may do so.
From experience I would say the claimant would need a very good explanation for the absense, with as much evidence as possible, including; statements/letters/medical evidence/bills and even benefit letters to prove that was her main address.
Hope that helps
forum member
Community4 Floating Support, Wiltshire
Total Posts: 8
Joined: 15 November 2012
MNM - 16 November 2012 03:11 PMI think the relevant case is R V Penwith.
In the case of R v Penwith DC HBRB [1988] 22 HLR 292;para A3/3.460 GM ex parte Burt it was held that the 13 week and 52 week time limits refer to absences which are continuous. If the claimant returns to, and occupies the dwelling as a home , even for a short time, the allowable period of temporary absence starts again. The DWP suggests (GM A3.460) that a stay at home lasting for example, only a few hours may not break the absence but one that lasts 24 hours may do so.
From experience I would say the claimant would need a very good explanation for the absense, with as much evidence as possible, including; statements/letters/medical evidence/bills and even benefit letters to prove that was her main address.
Hope that helps
That’s the one.
Just found this as well, it’s well worth a read;
http://www.cpag.org.uk/content/home-sweet-home
forum member
Edinburgh Housing Advice Partnership (EHAP)
Total Posts: 22
Joined: 23 March 2011
Thank you for all of this - I have tribunal next week, so I’ll let you know how we get on!
forum member
Welfare rights adviser - Plumstead Community Law Centre
Total Posts: 628
Joined: 17 June 2010
In Burt, Mr Justice ( as then was) Simon-Brown said:
“Not without hesitation in the light of Mr. Drabble’s characteristically able argument, I
have concluded that regulation 5(8) is indeed to be construed as Miss Findlay for the
applicant here contends, namely, so as to prevent a period of absence being held to
continue despite periods of return, however short. In my judgment, if, in a case
such as this, the authority wish to terminate the occupier’s eligibility for housing
benefit on the footing that he or she is essentially absent from the dwelling in
question, then, where there has not been a literally continuous period of absence for
52 weeks (or, I would add parenthetically, a shorter period if requirement 5(8) be
not satisfied) they can only do so by operation of regulation 5(1), i.e. on the basis that
the claimant does not normally occupy that dwelling as his or her home and
that his or her absences are accordingly not in any real sense temporary. It is
regulation 5(1) that enshrines the governing principle, namely, that a person is to be
treated as satisfying the requirement of occupation only in respect of a dwelling
“normally occupied as his home”
I have attached a copy of Burt for you
[ Edited: 27 Nov 2012 at 06:16 pm by Stainsby ]File Attachments
- R v Penwith DC HBRB ex p Burt QBD.pdf (File Size: 37KB - Downloads: 3242)
forum member
Edinburgh Housing Advice Partnership (EHAP)
Total Posts: 22
Joined: 23 March 2011
Thank you - I represented at the tribunal on Monday and will get a written decision - I’ll let you know the outcome