52 weeks’ absence is allowed where the claimant is “detained in custody on remand pending trial” or “detained pending sentence upon conviction”.
Otherwise, a person in prison is only entitled to HB if his/her total absence from home is unlikely to exceed 13 weeks.
It comes down to whether a sentenced prisoner who is appealing his/her sentence can be described as “detained pending sentence upon conviction” - does the appeal mean you revert to pre-sentence status? I would imagine not, but I don’t know enough about the criminal justice system to say for certain. Nothing to lose by appealing I suppose. But the Council will say that (i) the claimant’s circumstances never placed him in one of the groups entitled to 52 weeks’ absence and (ii) it was never likely at any stage that his absence from home would not exceed 13 weeks.
On the likely duration of absence point, hindsight is a wonderful thing and we can see that the absence plainly did exceed 13 weeks. But the HB test is whether, from week to week during the absence, it was unlikely that it would: how did things appear at that time and in particular did the appeal raise that likelihood? There might have been an unexpected delay in the appeal process for example: see CH/2638/2006 (attached)
Incidentally the attached decision is wrong in one respect: the Commissioner says that the claimant was entitled to HB throughout the whole of an absence that in the event lasted longer than 13 weeks. That is incorrect - it would have to stop after 13 weeks, the issue in the case is whether the claimant was entitled to any HB at all from the outset.
