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Housing Benefit following permanent move to a care home
Hi, my client was made permanent in her care home on 13/11/2023. However, she then required a Mental Capacity Assessment to determine whether she had the capacity to make decisions regarding her residency, terminating her tenancy and clearing the property. Therefore, the tenancy is ending on 10/03/2024.
The local authority has only agreed to HB for 4 weeks from 13/11/2023. Can anyone point me in the direction of caselaw, guidance or legislation that may help us get HB paid until the end of the tenancy?
Thank you
From Shelter:
“If it transpires that a period of absence is or will be longer than 52 weeks, the claimant is entitled to housing benefit up to the time at which they no longer expect to return home within 52 weeks”
You said that your client’s stay in the care home was made permanent on 13/11/2023. In my opinion, she has lost entitlement to HB from that day, because on that date she was no longer expected to return to her home.
In addition, a tenant must live in their tenancy as their only or principal home to retain ‘secure’ status (s.81 Housing Act 1985). If the tenant no longer lives at the tenancy as their only or principal home , the tenant is no longer fulfilling the ‘tenant condition’ and the tenancy essentially loses ‘secure’ status and becomes a tenancy with basic protection.
There is a presumption of loss of status if the absence is lengthy and the tenant cannot show that there a realistic prospect of returning to their home.
Your tenant’s absence may not be lengthy but there seems to be no realistic prospect of returning to her property.
So no tenancy = no liability to pay rent = no entitlement to HB.
I am sure proper experts arrive soon to correct me, if needed. But I think the offer of 4 weeks of HB looks generous.
See the decision below. It probably won’t help your client but it helpfully illustrates the issues of best evidence of permanent, and, the difference between desire and intention to return.
https://www.rightsnet.org.uk/pdfs/Scottish_decisions_2015_upload/CSHB/CSHB_0405_2005.pdf
Has she had a deprivation of liberty assessment? When we’ve had clients who are challenging these, HB has been paid for the full 52 weeks as the challenge indicates an intention to return.
Further to Rosie’s point, if the client didn’t have mental capacity to make decisions for herself and this wasn’t sorted until early February, how can a decision have been made that her placement in the care home was permanent?
In addition, a tenant must live in their tenancy as their only or principal home to retain ‘secure’ status (s.81 Housing Act 1985). If the tenant no longer lives at the tenancy as their only or principal home , the tenant is no longer fulfilling the ‘tenant condition’ and the tenancy essentially loses ‘secure’ status and becomes a tenancy with basic protection.
There is a presumption of loss of status if the absence is lengthy and the tenant cannot show that there a realistic prospect of returning to their home.Your tenant’s absence may not be lengthy but there seems to be no realistic prospect of returning to her property.
So no tenancy = no liability to pay rent = no entitlement to HB.
The loss of secure status doesn’t end the tenancy - it just means it’s not a secure tenancy any more. It is still a tenancy and there is a still a rent liability. The question of HB entitlement is really just about whether it’s a temporary absence (or when it ceased to be a temporary absence).
Further to Rosie’s point, if the client didn’t have mental capacity to make decisions for herself and this wasn’t sorted until early February, how can a decision have been made that her placement in the care home was permanent?
Exactly - I would expect there to have been a DOLs if she didn’t have capacity to consent to becoming a permanent resident.
Further to Rosie’s point, if the client didn’t have mental capacity to make decisions for herself and this wasn’t sorted until early February, how can a decision have been made that her placement in the care home was permanent?
Exactly - I would expect there to have been a DOLs if she didn’t have capacity to consent to becoming a permanent resident.
This was raised in thread https://www.rightsnet.org.uk/forums/viewthread/18597/
The Clarke judgement I cited there may be equally relevant here
Thank you for the replies.
The client was admitted to hospital on 24/09/2023 and was then discharged to the care home on 23/10/2023. She has been there ever since.
There is a DOLS in place – standard authority was granted on 10.01.2024.
So, I’m trying to get the HB to cover rent up until April as it is less than 52 weeks and there was no opportunity to end the tenancy earlier.
But that is the point - her care home stay cannot be treated as permanent where she still had a home (which presumably she might have expected to return to aside from being hospitalised) and as she didn’t have capacity to agree to be detained in the home (or indeed separately to lawfully terminate the tenancy), I can’t see how the HB department can simply take the date of admission as being the date of the permanent move.
But that is the point - her care home stay cannot be treated as permanent where she still had a home (which presumably she might have expected to return to aside from being hospitalised) and as she didn’t have capacity to agree to be detained in the home (or indeed separately to lawfully terminate the tenancy), I can’t see how the HB department can simply take the date of admission as being the date of the permanent move.
I agree. I’d say it should be the date of the DOLS provided she doesn’t intend to challenge it. That she was apparently made a permanent resident before a capacity assessment was carried out is another issue but not a benefit one.
But that is the point - her care home stay cannot be treated as permanent where she still had a home (which presumably she might have expected to return to aside from being hospitalised) and as she didn’t have capacity to agree to be detained in the home (or indeed separately to lawfully terminate the tenancy), I can’t see how the HB department can simply take the date of admission as being the date of the permanent move.
I agree. I’d say it should be the date of the DOLS provided she doesn’t intend to challenge it. That she was apparently made a permanent resident before a capacity assessment was carried out is another issue but not a benefit one.
Thank you.
Is there any legislation/guidance I could point them to?
In addition, a tenant must live in their tenancy as their only or principal home to retain ‘secure’ status (s.81 Housing Act 1985). If the tenant no longer lives at the tenancy as their only or principal home , the tenant is no longer fulfilling the ‘tenant condition’ and the tenancy essentially loses ‘secure’ status and becomes a tenancy with basic protection.
There is a presumption of loss of status if the absence is lengthy and the tenant cannot show that there a realistic prospect of returning to their home.Your tenant’s absence may not be lengthy but there seems to be no realistic prospect of returning to her property.
So no tenancy = no liability to pay rent = no entitlement to HB.
The loss of secure status doesn’t end the tenancy - it just means it’s not a secure tenancy any more. It is still a tenancy and there is a still a rent liability. The question of HB entitlement is really just about whether it’s a temporary absence (or when it ceased to be a temporary absence).
Thank you Tim. For how long such rent liability would continue, having in mind the absence is permanent and accepting for this discussion that client has no capacity to hold valid intention to return (for example clients with advanced dementia)?
While the focus of this thread has been how a person’s intention or otherwise to return home should be interpreted, don’t forget the final requirement in Reg 7(16), which is in subparagraph (d)(i):
any period of absence from the dwelling is unlikely to extend beyond or, in exceptional circumstances is unlikely substantially to extend beyond, an overall limit of 52 weeks beginning with the first day of the absence from the dwelling
If she is objectively unlikely ever to return home, that is an obstacle.
Thank you Tim. For how long such rent liability would continue, having in mind the absence is permanent and accepting for this discussion that client has no capacity to hold valid intention to return (for example clients with advanced dementia)?
It continues indefinitely. All that has happened is that the protections associated with it being secure (or assured for that matter) are lost. The contractual tenancy continues until either the landlord or tenant ends it by giving notice to quit.
While the focus of this thread has been how a person’s intention or otherwise to return home should be interpreted, don’t forget the final requirement in Reg 7(16), which is in subparagraph (d)(i):
any period of absence from the dwelling is unlikely to extend beyond or, in exceptional circumstances is unlikely substantially to extend beyond, an overall limit of 52 weeks beginning with the first day of the absence from the dwelling
If she is objectively unlikely ever to return home, that is an obstacle.
True and can leave us in a difficult position. As mentioned before we have had a few cases where the client for whom the LA acts as appointee has challenged their DOLS assessment. Leaving aside the length of time it takes to get a ruling on this, we have had at least two cases where the COP has ordered that the client is to be given a trial period back at home. If there is no money to pay for a continuing tenancy it may be impossible to sustain it. At least getting the full 52 weeks HB helps towards this. I don’t think we have enough information to be able to predict the outcome of a DOLS challenge so I wonder how the objective test would operate in such circumstances.