Hi all,

I wonder if anybody can point me in the right direction. I have a client who was held in hospital under s2 Mental Health Act. During the section he was taken out by his Social Worker and signed up for a social landlord tenancy. He still had an agreement with a support provider.

Of course the new tenancy started right away. Upon his release two weeks later he went back to the original tenancy as he was still having his stuff moved and struggling to cope. His Social Worker had been verbally told that he would get the benefit on two homes but when pushed to determine the matter they used the old "he had not moved in" which it could be argued he had not.

I was wondering if I argured that as he was sectioned he should have been treated as is he had moved in as it was beyond his control. The fact he went back to the old place an discharge is I dont think a big issue as he was finding it difficult to cope with the initial changes.

Can anybody point me in the direction of any authority that might assist my argument.

Cheers.

....."Of course the new tenancy started right away. Upon his release two weeks later he went back to the original tenancy as he was still having his stuff moved and struggling to cope"....

When did his belongings start to be moved into the property, how many weeks did he continue to apend in hospital after signing the Tenancy agreement and when did the notice on the previous tenancy end?

To settle the arguement over the definition of "moving in" there is a Commssioners decision which may well cover his situation, although there was not a previous tenancy to consider:

CH 2957/2004 Deputy Commissioner Mark - in para 10 he says:-

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10. It is plain that the claimant was not, from 15 March 2004, occupying any other dwelling as her home and there is no dispute that if she had gone to her new home and stayed there from 15 March that that new home would have been, from that date, normally occupied by her as her dwelling. In my judgment, at the latest when the claimant’s agents went into the flat and put in her furniture they were taking occupation of it for her and so long as her furniture remained there, she was in occupation of it. Further, it is clear as a matter of ordinary language that the flat was her home. She had no other home and could not be described as homeless. If asked in the hospital on 15 March 2004 for her home address, she would or should have given the address of her flat. It had become her home or residence even though she was not there. She had no other reason to occupy it. The flat was a dwelling which she was occupying as her home in the ordinary use of the word. It was not a temporary home but her new permanent home and it was therefore one which, from the moment she occupied it she was occupying as her home in the same way as if she had turned up in person. It might have been different if there had been some other reason for her absence, but when the reason for her absence was that she needed medical treatment in hospital that reason is in no way inconsistent with the conclusion that she was occupying the flat as her home from 15 March 2004 in the normal sense in which that expression is used.

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Cheers Mike your a star - the fight can now start.

Regards

Brian.

If you really want to impress them (and short circuit the need for a long winded argeument/appeal etc), point them in the direction of their own HB/CTB cicular A12/2005, which refers specifically to this CD, and in which the DWP said they did not intend to appeal it, and that they would be revising their guidance accordingly....makes for a nice day when a plan comes together .....

I haven't got time to make a full reply, so hope this won't be too out of context.

I think Cmmr Mark's decision is easily distinguishable. In the CD, the clmt had no other home. In the case mentioned in this thread, the issue relates to the 2-homes provision. Therefore, in my view, the clmt's actual whereabouts becomes a far more important issue than in Cmmr Mark's decision. In turn, while still being a factor, the "furniture" is much less determinative.

Regards

Cmm Mark's decision was only cited as a means of countering the LA's definition of "moving in" - which is as you say only part of the problem.

The reason I was asking about the period of time over which the sequence of events occurred was that I believe there is a four week rule - I can't look it up at the mo as I'm not in the office .....

Thanks for all the info. I have been off on leave but have returned ready for the fight!!!!!!!!!!

Regards

Brian