My client had left her property due to domestic violence and moved in with her mother , who lives in another LA area, referring here as LA2. the client returned to her property three months later but her LA has withdrawn her HB/CTB for the period of absence after they received information that the client had applied for a Council House in LA2 which was refused due to unsatisfactory references. The reason given by her LA for withdrawing her benefits for that three month is that she did not have an intention to return to her property otherwise she wouldn't have applied for a Council House with another LA.

Has the LA acted correctly in withdrawing her benefits for the period of absence on the grounds that she did not have an intention to return she sinply becuase she applied for a council house in another LA area.

Any opinion on this one would be helpful or does anyone know any commissioner case law that is similar in circumstances.


Thanks

Cmmr / Judges have increasingly pointed out the danger(s) of arguing facts by way of analogy from CDs/judgements.

However, this may help. Based on the facts stated, the relevant legislation appears to be HBR 7(16)(x)&(17). In short, the clmt is treated as still occupying the dwelling for a maximum of 52 weeks (not 3 months) if ALL of the following is satisfied:

a) the clmt must intend to return to the dwelling within 52 weeks (such intention being positively satisfied, genuine and realistic; a desire is insufficient).

b) the dwelling must not be sublet during any part of the temporary absence

c) the clmt must have "...left the dwelling he occupies as his home through fear of violence, in that dwelling, or by a person who was formerly a member of the family of the person first mentioned..."


If the clmt did in fact intend to return (assuming the other requirements are met), HB is payable irrespective of whether s/he sought accommodation elsewhere. The "intention" must be judged on a week-by-week basis. For example, if the clmt didn't intend to return during weeks 1-3, no HB is payable for those weeks. But, if circumstances were such that the clmt changed his/her mind and intended to return from week 4, HB is payable from week 4.

If the clmt did not, initially, intend to return, HBR 7(10) may apply and HB may still be payable for upto 4 weeks so long as the liability was unavoidable.





relying on the facts relevant in decisions

what the LA is saying is that my client did not have a positive intention to return to the property for the three months she was absenced from the property otherwise she would not have applied for a Council House in another LA area. Basically what the LA said is that my client only returned to her property because the other LA had refused her application for a Council House in their area.

What counts are the actual (true) intentions of your client throughout. Has the LA drawn an incorrect conclusion from the evidence available? If so, there is nothing to lose by appealing to a FtT.

"......Has the LA acted correctly in withdrawing her benefits for the period of absence on the grounds that she did not have an intention to return she sinply becuase she applied for a council house in another LA area....".

Look at it from another direction - had your client been successful in obtaining a tenancy in her new location, then she would not have returned to her original residence - therefore by merely making an application for rehousing elsewhere she was signifying at that point in time (and at least until the application was refused) that she no desire or inclination to return..... I can't see how the original LA could have interpreted that in any other way.........

Can see the point that Mike is making but surely it's a bit narrow to say that applying for a new home = no intention to return. It is surely quite reasonable that someone will return - say to collect belongings and they would only need a short stay to actually have returned.

Think Kevin has it right - it is the actual true intention that counts and it will always be dodgy to make assumptions.

Hi... what kind of accommodation did she apply for.in that other LHA and did she explain her situation.... if she told them she was fleeing domestic violence then the Housing Application (Housing Act 1996 part vi) would have been a Homeless Application (Housing Act 1996 part vii) which would have have been an application for "temporary accommodation".... which would leave the intention to return still valid.

This would be a particular defence if she was staying in overcrowded condidtions with family