Can anyone please help

Woman with 17 year old daughter (in full-time non advanced education)goes into hospital for an operation, she will come out of hospital in about three months but cannot return to her home. Social Services are looking to move her to somewhere more suitable.

So she isn't entitled to H.B because she isn't planning to return home.

While she is in hospital her daughter is dividing her time between her home and the grandmother.

When she comes out of hospital to her own home her daughter will move with her.

Sould I suggest that the daughter applies for H.B in the mothers absence on the basis that she may be treated as liable for the rent, or is there a better approach.

Based on the info given, my view is that the daughter cannot be treated as liable - see CSHB/0606/2005.

I dont think CSHB/0606/2005 applieshere because in the case before the Commissioner, the landlord was the claimants father, butthere is no indication of a special relationship with the landlord in the present case.

I would go ahead with a claim from the daughter

There is another matter here and that is the notion of intention to return. Is it possible that Social Services are narrowly looking at their care budget or exerting pressure to prevent her returning home for some other reason?

I raise this only because of the circumstancees considered by the Court of Appeal in Hammersmith and Fulham LBC v Clarke 20 Nov 2000.

Mrs Clarke entered a nursing home after sufferign a stroke. She apparently signed a document indicating to her social workers that she would stay in the nursing home peramanently.

Hammersimith obtained a possession order on the ground that she no longer occupied the flat as her normal home and had no intetnion to return. The Court of Appeal held that fleeting changes of mind were not sufficient to indicate that there was no intention to return, and that Mrs Clarke was in no fit state to make such a decision at the time she allegedly signed the documents with her social workers.

Your client needs to keep all her options open at this stage

We have recently had a similar case to this - client was admitted to hospital following a stroke - social services and family between them decided client wouldn't be able to return to original home, and told HB dept that. They accepted this as vacating, and cancelled HB/CTB claim.
Somewhat later, Client somewhat better, states that he had'nt had a part in any decisions - hadn't authorised anyone to act on his behalf and had'nt personally given any notice to terminate his tenancy with the HA or his claim with the LA.
Outcome was that HB/CTB was reinstated. 7 to 8 weeks later client was in a far better position to gauge his needs etc, and then reached a well informed decision that he would indeed need alternative (Grd floor) accomodation, and negotiated a tenancy swop with the HA, and a care package with the SS.

Should also have pointed out that the decision to return home or not should not be made until it becomes clear how disabled the patient is - some stroke patients in particular stage quite remarkable recoveries ............

I am truly grateful for all these replies.

Unfortunately however this client is quite lucid and insists that she will not return. I have never worked for Social Services but I imagine that, were it otherwise, they wouldn't be putting themselves out to find more suitable accommodation. I did work in Housing and there is always a shortage of any kind of accommodation which may be desirable.

The trouble is that, as soon as she tells this to Housing Benefit they will stop paying the rent and the teenage daughter will become homeless. Hence my original query.

If the patient is quite lucid, then all the better - just try and ensure that no notice is given to the landlord or LA until suitable alternative accomodation has been found and agreed....you could point out that to do otherwise would be hugely detrimental to her daughter

Mike is right. It's easy to forsee a situation where the client is ready for discharge from hospital, but accommodation more suitable than that she has presently has not yet been found/offered. Surely, it's entirely possible she might return home in such circumstances, albeit temporarily?

Thanks to stainsby, the Court of Appeal judgment he highlighted in his posting - Hammersmith and Fulham LBC v Clarke (2000) is now available on rightsnet -

http://www.rightsnet.org.uk/pdfs/HammersmithvClarke2000.pdf

To reply to the original query, it seems surprising that this question - broadly claimant absent and not returning, other family members staying in home until they can move to new home together - hasn't arisen before.

Maybe it is because the temporary absence rules (Reg.7(13) and (16)), which require an intention to return, are just rules deeming a person to be occupying. If they have never ceased occupying, these rules have no application.

Reg.7(1) gives the main rule. A person is treated as occupying the dwelling normally occupies as his home 'by himself and his family'. Assuming the daughter's continuing membership of the family is not in dispute, when did 7(1) cease to be satisfied? The home has been 'normally occupied' by the mother and daughter throughout.

Having said that it will probably be simpler and easier, if Housing Benefit is refused to the mother under 7(13), for the daughter to claim using Reg.8(1)(c)(ii) to establish liability. And there may be caselaw on this I don't know about.

Richard Atkinson

Thank you Richard

that's really clear and very useful.

Thanks also to everyone else who replied, season's greetings to you all

But if the mother gives up the tenancy, how can the daughter claim HB herself in respect of it.

what does mother think daughter is going to do?

I haven't looked this up but I believe it is possible to get H.B, even if you are not a tenant, provided it is clear that you are responsible for the rent.

The daughter can't get a tenancy because she is under 18 and I should imagine that the landlord will be anxious to avoid any questions of a Succesion being granted.

However, my reading of the last posting was not that the mother should give up the tenancy, but that she may be disallowed H.B because she isn't returning home. In that case the daughter may claim H.B even though the mother would still be the tenant.

My main concern was to reassure the claimant that there is no danger from informing both the landlord and the H.B. department of her situation.

The words of Mr Commissioner Jacobs at para 31 of CH/0318/2005 may provide the answer to the question of how the daughter could claim HB even if mother gives up the tenancy

"31. I reject the argument that only lawful residence is within the housing benefit scheme. Regulation 10 expressly provides that housing benefit is payable in respect of what are in effect damages for trespass. The housing benefit scheme expressly accepts the possibility that the claimant’s presence in the accommodation may not be lawful. I therefore reject any argument in so far as it is based on the fact that the claimant was not entitled to be where he was. "

While acknowledging the points made by Derek Stainsby and Richard, I'm still far from convinced that the daughter can be treated as liable.

In the CD cited earlier - CSHB/0606/2005 - the tenant was originally entitled to HB, then became disentitled (due to a change in the law). The tenant's daughter then made a claim for HB. It was contended that, even thought the tenant continued to be ACTUALLY liable, the daughter should be TREATED as liable and HBR 8(1)(c) was relied on. The Cmmr did not agree.

In my view, the circumstances in CSHB/0606/2005 are not so easily distinguishable as Derek suggests.

CSHB/0606/2005: www.osscsc.gov.uk/aspx/view.aspx?id=1935

The circumstances in CSHB/0606/2005 seem very remote from those described here. The Tribunal decison upheld by the Commissioner was that there was no true liability for rent on the mother. Since the tenancy in the circumstances here seems to be a perfectly normal commercial one, and will not have been ended by any of the circumstances described, this question is not likely to be at issue. The Tribunal also held in CSHB/0606/2005 that it was not reasonable for the daughter to make the payments in any event - but that was very much down to the very unusual circumstances. I can't see this blocking a Reg.8(1)(c) in this case.

I'm also still not convinced that normal occupation by the claimant and family has ceased.

Anyway the actual question is whether it's safe to tell HB. You could tell them about the absence of the mother and continuing occupation by the daughter, and plans to move elsewhere. Up to them then. They either stop mum's HB, in which case daughter claims, or they don't. No need to tell the landlord until they know they're moving out but watch notice requirements in the tenancy.

Richard Atkinson

...."Anyway the actual question is whether it's safe to tell HB. You could tell them about the absence of the mother and continuing occupation by the daughter, and plans to move elsewhere. Up to them then. They either stop mum's HB, in which case daughter claims, or they don't"

If you tell any HB section that there is no intention to return, they they will stop Benefit, causing increasing rent arrears. They will then probably not accept a benefit claim from the Daughter on the grounds that (a) she's under age, and (b) she's not the tenant and therefore not liable to pay rent, leaving the family to argue with the LA for some indefinate period.

As already stated, the easiest way to avoid all this anxst is to say nothing until suitable alternative accomodation has been arranged...why make life more complicated than it need be, that's what my old four foot granny use to say .........

...mind you, she also told me not to mess about with girls, (but failed to say why) so she wasn't right all the time.....

Um, isn't there a duty for the clmt to notify the LA of this change of circs?

reviewing this thread again, it seems to me that daughter could do with some independent advice.

if mother decides to give up the tenancy in due course, daughter has no where to live, unless the landlord lets her take over the tenancy.

in the meantime, daughter needs to know that the rent is being paid whilst she continues whatever she is doing (is she a student still? whatever, she's still a minor until her 18th birthday).

so she needs independent advice on her situation and what she can do about it as and when she loses her present accommodation.

i imagine she therefore also needs social work involvement as well as welfare benefit involvement.