HB before/after trial periods in residential accommodation become permanent

If a person decides not to return home during the 13 week trial period and that intention is a realistic possibility, then Housing and Council Tax Benefits would cease.  If the person gives four weeks’ notice on the property in the community and informs the local authority as soon as possible, then HB and CTB (or CTR or CTS whatever it is now called) should cover the four week notice period provided that the LA is satisfied that liability for rent is unavoidable.  It would be important to act promptly and try and co-ordinate decisions and actions if possible.

So, once a person decides that the trial is going to be permanent, their HB stops unless they have a notice to quit period on the property that they have vacated, in which case HB should be paid for the notice period? It doesn’t matter if they make the decision in the 13th week, their notice period would still be paid?

Does anyone know if the outcome of SSWP vs Selby was that HB could be paid for up to 13 weeks after the the person has decided to stay in the residential accommodation permanently - for example, if for some reason they don’t surrender their tenancy straight away and therefore need HB for longer than their notice to quit period?

I understand that, ideally, the decision to stay in residential accommodation and surrendering the former tenancy should be coordinated carefully, but that rarely happens when relatives and social services are acting on behalf of the HB claimant because their capacity is diminishing. In light of this, I’d like to be really clear about what Selby established. If anyone has a copy of the judgment, please post it!

The Selby decision is in the Briefcase section of this site reported as R(H)4/06.  It is very surprising.  If I am reading it correctly the 13 week trial period in residential care is a deeming provision under which the person is to be treated as living in the property in the community so long as their intention on day one is to return home if the care home is not suitable for them.  This appears to mean that Housing Benefit should continue to be paid throughout the whole thirteen week period unless and until the liability to pay rent ceases.  (The property must not be sub-let etc).

The example given in Shelter’s Guide to HB and CTB 2012/13 appears to come to the right outcome but possibly for the wrong reasons:

‘A woman who rents her home has been on HB and CTB for a while.  She goes into a care home for a six week period to see if it suits her.  She remains eligible for HB and CTB.  In the fourth week of her trial, she decides that this is the care home for her.  She gives four weeks’ notice to her former landlord, and informs the authority of these matters promptly.  The authority is satisfied that she could not have avoided liability at her old address.  She remains eligible for HB and CTB for the additional four week period.’

Selby would say in the above example that she should be treated as occupying the property in the community for thirteen weeks or until she no longer has a liability to pay rent and there is no requirement on the local authority to consider whether she could or could not have avoided liability for rent at her old address.  So in this example she can have HB and CTB for eight weeks and not be out of pocket.

If someone were to decide to stay in care on the last day of the thirteen week period and gave notice on that day then the local authority could consider whether to allow an extra four weeks entitlement if the person could not avoid liability to pay rent.  It would be difficult to see how they could avoid this liability.

What do you think?

here’s a link to the news story on the Selby decision -

http://www.rightsnet.org.uk/news/story/Continued-HB-entitlement-on-temporary-stay-in-residential-care-becoming-per

and the judgment itself -

http://www.osscsc.gov.uk/aspx/view.aspx?id=1712

The example in the guide would work in a case where the claimant does not make a final decision to stay in the care home until less than four weeks before the end of the 13 weeks allowed by the Selby case.  CH/2641/2003 provides some support for the proposition that the 13 week trial period and the four week notice period may run consecutively.  On the specific matter of trial periods in a care home it has been overtaken by Selby, but I think it makes a wider point about giving notice while absent and that point remains valid.

Thanks for all the replies.

Having taken on board all your comments, I’m still not sure what this bit of the Selby judgment means in practice (the following extract is from para’ 9 of the judgment):

‘as soon as it is known that the claimant is remaining in residential care then the authorities are to treat the absence as permanent and end entitlement to housing benefit, but if the claimant has stayed less than 13 weeks in the home and has to pay rent in lieu of notice, then housing benefit can be paid for the shortest of four weeks; or the end of the 13-week period; or the notice period itself.’

Does it mean that HB will be paid for whichever is shortest out of the following three options applies?: (a) four weeks (b) the time from when the decision to stay permanently is made until the end of the 13 week period (c) the length of the notice period.

This would mean that HB could be paid for less than four weeks from when the decision is taken to stay in residential accommodation permanently. I guess this would mean that CH/2641/2003 would not be useful either?

Or, in contrast, does the above extract mean that HB will be paid for at least four weeks, but can be paid for longer than 4 weeks if the time between making the decision to stay permanently and the end of the 13 week period is longer than 4 weeks, or if the notice period is more than four weeks? I guess this interpretation would support CH/2641/2003 in saying that the 13 week period and a four week notice period can run consecutively - in the event that a decision to stay in the residential accommodation permanently is made right at the end of the 13 week period?

If the latter interpretation is the correct one, I would still be unsure if the right to have HB for at least 4 weeks is coming from the Selby caselaw or Reg 7 (6) (d) (HB Regs 2006) which allows HB on two homes for up to four weeks where tenancy overlap was unavoidable. This provision is not specific to only those who are trialing residential accommodation, and so i’m also wondering if the special rules which apply to those trialing residential accommodation would stop them from benefitting from this general HB-on-two-homes provision. (By the way, Selby and CH/2641/2003 refer to Reg 5 for the HB-on-two-homes provision, so they must be referring to a different version of the regs to me as I found it in Reg 7. Or I’ve just got confused somewhere along the line, which is just as likely.) One of the reasons I ask about this is that, if, for example, someone decided to stay in the residential accommodation permanently on the day after the 13 week period, could they then rely on the normal HB-on-two-homes provision to get HB for four weeks during their notice to quite period, or does the fact that special rules gave them 13 weeks to decide mean thagt they’ve had their lot if, for whatever reason, they don’t decide within the 13 weeks?

geep - 02 February 2015 12:27 PM

‘as soon as it is known that the claimant is remaining in residential care then the authorities are to treat the absence as permanent and end entitlement to housing benefit, but if the claimant has stayed less than 13 weeks in the home and has to pay rent in lieu of notice, then housing benefit can be paid for the shortest of four weeks; or the end of the 13-week period; or the notice period itself.’

Does it mean that HB will be paid for whichever is shortest out of the following three options applies?: (a) four weeks (b) the time from when the decision to stay permanently is made until the end of the 13 week period (c) the length of the notice period.

...
Or, in contrast, does the above extract mean that HB will be paid for at least four weeks, but can be paid for longer than 4 weeks if the time between making the decision to stay permanently and the end of the 13 week period is longer than 4 weeks, or if the notice period is more than four weeks? I guess this interpretation would support CH/2641/2003 in saying that the 13 week period and a four week notice period can run consecutively - in the event that a decision to stay in the residential accommodation permanently is made right at the end of the 13 week period?

‘for the shortest of four weeks; or the end of the 13-week period; or the notice period itself’  can only make sense if there can be periods of less than 4 weeks.  So it’s your first choice.

Thanks, Gareth. If Selby clarifies that the regs specific to trials of residential accomodation allow HB to be paid for less than four weeks once the decision to stay there permanantly is made,  can they can rely on Reg 7 (6) (d) (HB Regs 2006) instead, which usually allows HB to be paid on two homes for up to four weeks?

I think paragraph 9 of the Selby decision is just the Commissioner grandstanding.  He is giving examples of incorrect interpretations of the regulation and then goes on to say that he will sort out the correct interpretation for the Secretary of State.

If I am undestanding the decision correctly the thirteen week period is designed to give you some breathing space to sort your affairs out.  Here are some examples of how it should work in practice:

Example 1

I decide on day one of my thirteen week trial period that I am going to stay in care.  I hand my notice in on my rented property immediately.  Housing Benefit will cover the four week notice period and then stop.

Example 2

I decide at the start of the second week of my thirteen week trial period that I am going to stay in care.  I hand my notice in on my rented property at the start of week ten.  Housing Benefit will cover me for four weeks to the end of week thirteen.  The local authority do not have to make any decisions regarding unavoidable liability because we are still within the thirteen week ‘breathing period’.

Example 3

I decide at the start of the twelfth week of my thirteen week trial period that I am going to stay in care and hand my notice in on my property immediately.  The LA have to allow Housing Benefit for weeks twelve and thirteen.  The next two weeks rental liability fall outside the thirteen week trial period.  The LA have to make a decision whether it is unavoidable that I have to pay rent for these two weeks.  I would strongly argue that in this case it was unavoidable as I could not have handed in my notice before I made the decision to stay.

Example 4

I decide on day one of my thirteen week trial period that I am going to stay in care but do not hand in my notice on my rented property until the last day of the thirteen week trial period.  I can have Housing Benefit for the whole thirteen week period as I am treated as occupying the property in the community for the whole period.  I am however hit for rent for a further four weeks after the end of the thirteen week period.  The LA might say that I could have avoided this liability by handing in my notice at the start of week ten (or earlier) and decide not pay HB under the ‘dual liability’ provision.  I could try and make the argument that I was, for example, very unwell during the whole of the thirteen week period and had no one to help me give notice.  In this case any HB allowed after the end of the trial period would come down to a determination by the LA about whether or not I could have reasonably avoided the liability to pay rent.

If this is all correct it would be interesting to see if you could get the LA to make a decision in accordance with this interpretation. 

Thanks, that’s really helpful. As you say, the interesting part will be how LA’s will interpret all of this. Until clearer direction is given by case law or amendments to the regs, I’m going to advise that any notice period should fall within the 13 week period, just to avoid the hassle of having to argue with LA’s over whether HB is payble after the 13 week period.