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Temporary absence of over 13 weeks - intention to return within 13 weeks
Hi, does anyone have any links to tribunal and appeal case results regarding the above? Many thanks.
There are loads. What’s the specific issue?
Client’s mother abroad seriously ill. At short notice client called and goes to see her. Mother passes away in days after arrival. Due to religious beliefs (3mth ceremony/mourning) ends up staying 12 weeks 5/6 days then attempts to fly back. No seats on open ticket until 20 days later. Original return ticket proves initial intention to return within 5 weeks as mother not expected to pass away. HB argue no intention to return after staying to carry out religious duties. He has visa that expired within 13 weeks that had to be renewed after no seat available. He is trying to get the airline to confirm this and that between 12 weeks 5/6 days and his return he was stuck due to reasons beyond his control. Tribunal TBC.
If I have understood things correctly;
1. Initial intention to return after 5 weeks - no problems with this.
2. Mother dies, client’s intention to return then becomes one to return within 13 weeks - just about. *See below for more on this.
3. From after the 12 weeks and 5/6 days point when the client knows he isn’t going to make it back within 13 weeks he cannot/does not have an intention to return within 13 weeks - he’s no longer entitled to HB.
The way the law is drafted requires that the absence is unlikely to to exceed 13 weeks - at any point - for HB entitlement to continue. So a person who goes abroad on holiday for 6 weeks, falls in love with a member of the hotel staff in the fourth and when, in the fifth, discovers their future intended spouse will need a visa to return with them to the UK, discovers that this will take a minimum of a further 16 weeks to arrange and so decides to stay with them until the visa has been processed, is only entitled to HB up to the 5th week.
Your client’s attempting to obtain evidence that he was unavoidably detained after 12 weeks and 5/6 days is only going to be of limited value - he is not going to be entitled to HB from the 12 week and 5/6/ days point regardless, though the evidence might help to go to show that it was not his intention to return at the point he did all along.
* To succed at tribunal for the period from the date of the mother’s death up to the 12 weeks and 5/6 day point, I think the evidence that your client needs to obtain from the airline should be focused on his attempting to fly home at that 12 week and 5/6 day point.
BUT
1. Depending on exactly where he was in the world (and whether it was 12 weeks and 5 days or 12 weeks and 6) you may need some evidence that even had he been able to board the plane that this would have still brought him back to the UK within the 13 weeks.
2. Perhaps even more crucially, the main issue here (particularly if the tribunal properly applies its mind to the correct legal test) is not what your client’s intention may have been but what was the actual likelihood as to the length of his absence.
Whilst your client’s intending to return at the end of the mourning period might just about have enabled him to get back to the UK within 13 weeks, his actually being able to return may have been very unlikely in fact - i.e. most ‘open’ tickets will allow/require the traveller to book/confirm their return flight some weeks before the specific return flight they wish to catch. In many cases, the prospects of using an open ticket to catch one’s intended flight when one just turns up at the airport on spec will be practically nil - so it might be reasonable for a tribunal to find as fact that once the mother died and your client did nothing about securing his return flight that his absence was likely to exceed 13 weeks (i.e. no entitlement from her date of death). On the other hand, it might be your client was just very unlucky and that 95 times out of a 100 he’d have managed to get on the plane (because it’s not usually full) even just turning up on spec.
It’s not really caselaw you need here I think (the regulations are pretty unambiguous) but good evidence - what were the realistic prospects of your client being able to get on the plane without having booked his return previously?
[ Edited: 15 Sep 2014 at 03:10 pm by past caring ]love the holiday romance explanation, a similar appoach should be adapted by CPAG in their books.
If you did want some caselaw, on the point about how realistic was the intention to return, there’s CSHB/405/2005
‘A ‘desire’ to do something is quite distinct from an ‘intention’ to do so. An intention involves the aim or purpose of carrying out what is intended, whereas a desire may be no more than a wish or hope, however remote, to do something; so far as ‘intends to return to occupy the dwelling as his home’ in regulation 5 is concerned, in my judgement this must encompass, moreover, not simply a subjective purpose to do so but also that, objectively, such a return is a realistic possibility.’
If you did want some caselaw, on the point about how realistic was the intention to return, there’s CSHB/405/2005
‘A ‘desire’ to do something is quite distinct from an ‘intention’ to do so. An intention involves the aim or purpose of carrying out what is intended, whereas a desire may be no more than a wish or hope, however remote, to do something; so far as ‘intends to return to occupy the dwelling as his home’ in regulation 5 is concerned, in my judgement this must encompass, moreover, not simply a subjective purpose to do so but also that, objectively, such a return is a realistic possibility.’
It’s often used in care home cases. The intention is abandoned when social services decide that there is no realistic possibility of the person returning home and that the placement should be permanent.
Thank you all. I think that getting the HB paid to the 12wk 5/6 days is the best I can hope for so will approach it that way. I have some evidence but hope to have more from the airline.
If you did want some caselaw, on the point about how realistic was the intention to return, there’s CSHB/405/2005
‘A ‘desire’ to do something is quite distinct from an ‘intention’ to do so. An intention involves the aim or purpose of carrying out what is intended, whereas a desire may be no more than a wish or hope, however remote, to do something; so far as ‘intends to return to occupy the dwelling as his home’ in regulation 5 is concerned, in my judgement this must encompass, moreover, not simply a subjective purpose to do so but also that, objectively, such a return is a realistic possibility.’
It’s often used in care home cases. The intention is abandoned when social services decide that there is no realistic possibility of the person returning home and that the placement should be permanent.
I have always challenged this approach in the sense that if that it is the intention of the claimant which is relevant and not that of social services. Very often benefits cease because a well meaning staff member blithely announces to the benefit authorities that whilst a placement is temporary with a view to permanent there is no realistic prospect of the person ever going home. That has nothing to do with the intentions of the claimant at that point in time and has often been completely undone by the claimant confounding expectations and doing exactly that. Have seen quite a few presenting officers told off and told to relay to decision makers that the intentions of the claimant are the only relevant factor.
That’s true, but needs to be qualified slightly to say the objectively realistic intentions of the claimant: if it’s plain to see that s/he isn’t going anywhere that has an effect on how “unlikely” it is that the absence will exceed 13/52 weeks: that’s the word used in the Regs. Entirely agree it’s not up to social workers or relatives to make these decisions irrespective of the claimant’s wishes, but the Regs do nevetheless require his/her return home within the time limit to be likely, (or strictly speaking his/her non-return to be unlikely if that means something different).
I agree that the “intention” of social workers or any other person for that matter, is in itself, irrelevant and I could have phrased it better. However, I wouldn’t say that the intention of the claimant is decisive. The intention of the claimant is only a starting point.
As the commissioner pointed out in CSHB/405/2005:
“31. The whole tenor of regulation 5 supports the laudable policy that one who leaves his home, for example, on holiday, or as a hospital or care home patient, remains entitled to HB while the absence can be categorised as sufficiently temporary having regard to the particular situation. But if the matter solely depended upon a subjective wish, then however unrealistic is the occupier’s desire to return to his former home, and even in a situation where circumstances beyond his control now prevent such return, he can expect to be paid HB (which may be, as in the present case, a not inconsiderable sum of public money) unnecessarily for up to 52 weeks. This cannot be right. As Mr Commissioner Turnbull points out at paragraph 12 of CH/1854/2004 with reference to paragraph (7B) and (7C):
“… That [i.e. continuing HB for up to 13 weeks after a person has become a permanent resident of a home] would be inconsistent with the tenor of, for example, reg. 5(5)(d), which provides that, in the case where a person moves from one dwelling to another, he can be treated as occupying both dwellings, but only for a period not exceeding 4 weeks and only if he could not reasonably have avoided liability in respect of two dwellings.”
In essence, as far as the care home example goes, the intention to return slips away once permanent residence has been established.
Thank you all for your advice. We won. Appeal was allowed and entitlement to HB for first 11 weeks and 5 days up to the date appellant first discovered the first ticket home was after 13 weeks. ‘On the balance of probabilities there was an intention to return and the absence was unlikely to exceed 13 weeks up to that point’.