My client has been very poorly. He was dischaged from hospital after an emergency op over a year ago and moved into his parents' home as it's much more convenient for him (downstairs toilet, parents caring for him etc).

He'd been discharged with no community care assessment of needs (which we're now dealing with) and couldn't manage at home.

He therefore claimed IS from his parents'home and some months later completed an NHB1A form in which he stated he intended to stay at his parents for about 12 months to recuperate. He's actually been there longer as he's still in poor health.

His IS has been overpaid because of capital (own property). He certainly doesn't want to sell as he intends to move back in. However he can't do this yet until Social Services has agreed to carry out adaptations etc and this is dragging on.

Is there any way round this?

First 12 months of absence arguably covered by Sch 3 para 3(11) & (12) of the IS regs - "treated as" occupying home whilst temporarily absent for up to 52 weeks whilst undergoing "medically approved convalesence". Cannot see anything in the wording of the schedule to suggest that medical approval granted retrospectively might not suffice - worth a shot at least.

Beyond that point you've got Sch 10 para 28 of the regs - value of property you intend to occupy as your home is disregarded for six months (or such longer period as is reasonable) whilst you carry out repairs or alterations in order to make it fit for occupation. Six months commences from the date you first take "steps" to effect repairs or alterations. Pursuing social services is, I think, a "step".

Thanks v much. Problem is he was with his parents in excess of 52 weeks before he started taking steps (pursuing Social Services) after we'd advised him. However IS regs Sch 3 gives us a bit of a lifeline with the wording "..is unlikely to exceptionally exceed...(52 weeks).
I'm going for it anyway as I think there's some benefit in proceeding.

You might want to look at the home being disregarded under schedule 10, paragraph 1 of the IS Regs, “the dwelling occupied as the home”. This has been read as the dwelling usually occupied as the home. As usual each case will turn on its own facts. The length of his absence may cause difficulties but this should not be a factor decisive in itself. All the circumstances must be considered as a whole.

Nice one Paul - I'm now going to add an "...in the alternative..." to this very late appeal. The DM's going to smell desperation but I don't care if it gets my client a result.

Blimey I just want some straightforward 'benefit checks' for a couple of days. Why do all the ones which take lots of research all come in at once eh!