When someone's benefit comes to an end because they are likely to spend more than 13 weeks as a sentenced prisoner, can you add the rules that require benefit to be paid for 4 weeks notice period on top of this? (For example when a person is on remand for 14 weeks and is then sentenced to a further year)?

Similar question when someone enters a registered home temporarily and the stay then becomes permanent.

I seem to remember a commissioners decision on this but can't track it down.

Hi Chris,

Not sure if the following decisions may be helpful (all links to case summaries found in the briefcase area of rightsnet) -

CH/2638/2006- Determining whether temporary absence likely to exceed 13 weeks - prisoner recalled from licence

CSH/499/2006 - Whether a prisoner's 'first day of absence from home' runs from to the date they were first remanded

CSHB/405/2005 - Whether there is a difference between a desire and an intention to return to occupy the former home

Fri 22-Feb-08 03:39 PM by stainsby

See also CH/4546/2002 and CH/2641/2003

Hi Chris

Benefit is paid under temporary absence rules whilst a person is on remand and can be paid for up-to 52 weeks (as long as there is an intention to return home)

If the prisoner is sentenced (counted as a change in circumstances)

The question you have to ask yourself is "will they return home within 13 week of them leaving home ?"

Only if the answer is YES can the person continue to receive HB under temp absence rules (CH/499/2006)

A person moving from a rented dwelling to a non-rented dwelling is eligible for HB on the one he/she has left...but only if all 3 following conditions are met :

1. only for the period after he/she as moved into the new dwelling (in this case...the prison)

2. only if his/her liability for rent on the former dwelling could not reasonably be avoided AND

3. only for up to 4 weeks from the date of the move (in this case, date of sentence)



Im not sure of the commissioners decision for the above, but hope this helps anyway.

Wendy

I'm assuming this is a reference to HBR 7(7)?

If so, there is a potential problem for people "moving" into prison. HBR 7(7) relies, expressly, on a person moving into another "dwelling". Is prison a "dwelling"? If not, HBR 7(7) is of no help.

I appear to be in a minority on this, but I'm far from convinced that "prison" is a dwelling. And yes, I'm well aware the DWP GM assumes prison is a dwelling. However, the GM is not the law. And, as to case law, para 35 of Uratemp makes interesting reading about whether prison is a dwelling.

Uratemp Ventures Ltd v Collins
www.bailii.org/uk/cases/UKHL/2001/43.html

If the DWP intend "prison" to be a dwelling for HBR 7(7), it only needs a tiny amendment to that provision along the lines of 'For the purpose of this paragraph only, the meaning of dwelling shall include "prison"'. Any doubt is instantly removed. Same applies to "hospital" or any other institution the DWP sees fit to include.

Yes, I was referring to HBR 7(7) and as "dwelling" in not defined in law my interpretation of the word is where someone habitually sleeps and eats and where a person "resides".....I may be wrong in this interpretation and further guidance or amendments to the legislation would definately be welcomed.

Thank you for the link...it is definately intersting. As a benefit administrator I will continue to consider a prison as a persons "dwelling" unless DWP Guidance or amended legislation suggests otherwise.......another grey area !!

I may bring it up and request clarification from the Adelphi

Dwelling is in fact defined in s.137 of the SSCBA as meaning "...any residential accommodation...". In my view, subject to caselaw showing otherwise, prison is institutional acccommodation; not residential.

It's also worth noting that caselaw IS the law - it doesn't need to be further confirmed by regulations / guidance.

NB: It crossed my mind that the above wording may appear a bit on the "sharp" side in the cold light of text! It's not intended to be so - it's simply been put in a "matter of fact" way....

If it helps there is case law that says a prison cell was not settled accommodation to allow a person to apply as homeless from the "last settled address". I cannot see any tribunal being persuaded that prison is a dwelling.

Regards

Brian.

I notice that Findlay suggests that this reg can be used where someone goes into prison, so there may be a good chance of convincing tribunals.

Leaving aside the debate about whether prison is a home for the moment, if it is, I'm interested in whether reg 7(7) can be used for a further 4 weeks notice period after the temporary absence period has expired, for example when someone has been on remand but then gets a long sentence. Any thoughts?

I think it can, subject to the prison being considered to be a dwelling for the purposes of Reg 7(7).

You have some support from Findlay and given that one of the current authors sits both as an appeal chair and a deputy commissioner, you have a good chance of getting it past a tribunal subject to an unrecorded and unpublished caveat from Mr Commissioner Jacobs

"The authors of Findlay disagree amongst themselves, sometimes I wish I could get them all in the same room togther so they could come to some kind of agreement"