A person subject to a closure order (challenged) under s6 Anti Social Behaviour Act 2003, and excluded from their rented accom for (initially) 3 months...and up to 6 months....given their financial qualification for HB/CTB (on IS etc), what is the position re entitlement to these benefits whilst under exclusion? Any experience anyone??

140 people have seen this posting...and no reply...I appreciate that there may be no answer, as this type of case is v new.

However, Tenants are now returned to their homes, as the closure order was quashed by decision of the court on 6th Jan. The HB situation remains unsolved, and the police have appealed. (the tenants have not been resident now for over 2 months as a result of - what turned out to be - a defective order/now quashed, and no Hb paid leading to arears and a possible other avenue of possession for the landlord)

May interest people to know that such orders (and - importantly in this case - the preceding notices) have to be served 48 hrs prior to the hearing...and are (at least in our area) routinely served (the police have said deliberately)on a Saturday, for an order on Mon morning....that is why the orders were quashed, as the tenants had no opportunity to seek legal advice (in fact in one case the notice was served with absolutley no papers at all on the tenant). Art 6 rights trampled.

Obviously anti social behaviour (when proven) is something which needs dealing with (and landlords and police are tuning into these areas quite correctly in many cases), but - for example - in one of these cases, the tenant (a young woman) had basically been bullied and pressurised into allowing the AS behaviour to go on by a very domineering (to say the least) cohabittee). There is also an issue of innocent until proven guilty, as the burden of proof for such closure orders ("balance of probs", as they are hybrid civil cases, not criminal)is a much lesser burden than the "beyond reasonable doubt" burden. The closures were essentially for alleged drug dealing...but - it seems to me - that the Police coldn't prove this in a criminal court (if they could, why not prosecute, then go for closure order?).

Some people are being caught out big-style here (for example the innocent young children of so-called "anti social" people, or "asbotic" people, to coin a phrase...anyway, enough of a rant, but their HB position remains unclear...any ideas?

Only had a couple of minutes look, but here are some ideas:

Having been unable to find any specific provisions considering the effect on HB, it seems to me that a tribunal would have to apply the normal rules. Presuming that the liability for rent went on regardless (I presume it did), I am guessing that the HB award was superseded on the basis that the tenants were no longer occupying.

In CH/2957/2004 at para. 19, Deputy Commissioner Mark considers the effect of regulation 5(8) HB(Gen)R 1987. He concludes that:

"The net result is that, whatever the general meaning of “the dwelling normally occupied as his home” in regulation 5(1), when the claimant was temporarily absent from the property she had to be treated as if she was there to the extent that she fell within one of these provisions, but could not otherwise be treated as occupying the flat as her home during her absence."

So, given that your tenants must have been absent, you will need to bring them within paragraph 8 to show entitlement. Paragraph 8 reads:

Subject to paragraph (8C), 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 seems to me that your tenants would have intended to return to occupy the dwelling as their home after the order ended/was quashed. There is no issue as to letting or sub-letting. The remaining issue is whether the absence is likely to exceed thirteen weeks.

The Anti-Social Behaviour Act 2003 (ASBA), s. 2(4) permits the making of an order for a period not exceeding three months. Depending on the time of year, even a maximum length order might not exceed 13 weeks. If your 3 month order was made in December, on my understanding, the initial order could not have excluded them for more than thirteen weeks...

In that case, reg 8(c) would seem to turn on whether (at the date of decision) an extension of the order under ASBA s. 5 was likely (and whether such an extension would be likely to take the absence to beyond 13 weeks). I would imagine that this will be the difficult part to prove. However, if the LA have superseded, can you not put the local authority to proof and require them to show that - on the balance of probabilities - your client wasn't likely to be permitted to return within 13 weeks? Of course, you have to do all of this based on the situation as it was when the decision was made, so technically the discharging of the ASBA order couldn't be considered by the tribunal.

Maybe you could also make an application for a late revision on the grounds that you couldn't apply earlier as you were awaiting the result of the ASBA appeal? Then argue that your client is likely to return within thirteen weeks of having left. Unlikely to work, but can't hurt to try!

As I said, just ideas, but a starting point, maybe? Were there any other grounds that the HB award was nilled on?

Just off top of my head Pete (and it might be completely irrelevant)
- if they're still liable to pay rent then what abt mesne profit ?

HB nilled in the way you describe. Therein lies the issue. We had got as far as reg 5, but - as you rightly point out - in many cases an extension to the order will be applied for, rendering reg 5 apparently useless.

In this case, I don't feel we should have a problem (with the orders being quashed within 13 weeks etc) and both a temp absence and a retrospective award would cover us.

My posting was initially sent before we had a decision on the validity of the orders (and the Police were also contemplating an extension at that time).

The reg 5/13 week temp absence decision must refer and relate to the "likelihood" of the absence being 13 weeks or less....this leaves scope (I suppose) to refuse if the order is (correctly)imposed and Authority/HAssoc/Police are simply "considering" an extension, as they were in these cases.

Interesting stuff....we await the HB response to our enquiries on this subject, and will keep you posted.

Hb have agreed to "bdate", or restore entitlement, under the circs here. However, they originally nilled the award when the landlord sent them a report of tenant's non-residence (some time after the event of the original order, thus creating HB overpayment aswell). The LA are basically saying each case on its merits (which has to be right). This client's rent account appears fine now. Thanks for the help/input.

The issues here remain to be tested on a case where the order is correctly imposed (and extension sought/considered), then the 13 week temp absence and reg 5 will need to be argued anew.

Hi - I have a similar very current case where the tenant has had the 13week closure order issued last night on the grounds of drug dealing/AS behaviour, presumably after she was notified on Monday of this week.

The local authority have said they will accept her as homeless temporarily, as she has nowhere else to go and has 5 children, but that they may place her in a neighbouring local authority area.

The local authority benefits dept have said they will pay HB for the duration of the closure order, provided there is an intention to return etc, but that if she claims HB on another property they will cancel her claim.

Any ideas if this is correct? Do normal absence rules prevent HB on two properties in this way?

I do not think HB on two homes on grounds of unavoidable dual liability is necessarily precluded, but the relevant regulation was tightened up a few years ago. It is not enough for the liability to be unavoidable, it has got to be not reasonably avoidable.

This arose from a case in which HB office refused a claim because the claimant's own actions had got them into the position of having two liabilities. This decision was overturned on appeal because the regs as they stood did not allow consideration of how the point of "unavoidability" had been got to - it was simply that it was unavoidable. DWP thought this went against policy intention and changed wording of reg.

This may be an issue where your case is concerned, and in any case it could only be for 4 weeks max.