Hi,

I have a situation regarding an elderly resident that I am seeking clarification on. Situation is that resident is renting a flat in sheltered accomodation from a housing association. She is receiving HB at the moment.

She spends most nights of the week (normally 5-6 nights per week) stopping at her daughters house. The scheme manager has advised that this situation has been ongoing for a long period of time. Resident in question hasn't actually stayed in her flat now for over two weeks.

If she is spending so many nights away from her flat, is this potentially going to cause problems with her housing benefit claim, i.e. could the local authority make the decision that she doesn't actually live in the property and her main place of residence is at her daughters house?

Any advice, as always would be gratefully received, particularly if anyone is able to point me in the direction of the relevant regs to support this.

Cheers

John

The obvious question is "why?". Depending on the reason(s) for the "absence(s)", any of the following is possible:

1) the clmt continues to occupy the flat as her normal home; or

2) there are periods of temporary absence, with any returns being (genuinely) to occupy the flat as the normal home; or

3) the clmt's "normal home" is with her daughter.

Without knowing the reason(s), it's impossible to advise further at this time.

The HB regulation relates to a dwelling ‘normally occupied’ by the claimant.

There are some rules by where a person can leave the dwelling and still claim HB.

A person can do so for 13 weeks for certain reason including absence due to domestic reasons.

This rule can be extended to 52 weeks for more extreme circumstances. These are both based on the assumption that the claimant is intending to return after the break and that they do not sub let the property out.

Regulation 5(1) of the Housing Benefit (General) Regulations 1987 provides that a person shall be treated as occupying as his home the dwelling "normally occupied as his home", but that phrase is not defined.

See Case: R(H)9/05.

Regards

Have some further information from the scheme manager as to why the resident spends so much time at her daughters.

Apparently the resident spends most nights at her daughers home because she is a very nervous person and is frightened about being in the flat on her own at night time. She does return to the property during the day

Regards

John

Again this could be a reason for a possible break from the home. Though you have to consider whether the DM would accept this and the break can only be for a max of 52 weeks I believe.

The question; is the dwelling ‘normally occupied’ by the claimant by going there through the day?

Can she not look for alternative accommodation or go on a list whilst she is staying at her daughters?

Regards

"Normally occupied" is only part of the test. "As the home" completes the test.

Barring HBR 7(6), the clmt cannot be treated as occupying more than one dwelling as her home at any one time.

Thanks for the responses so far.

I'm aware that "normally occupied as the home" means more than actually paying rent on the property, it means being physically present.

I am having a bit of difficulty trying to find a more detailed description of this. Does it mean that for someone to be deemed to be normally occupying the home they have to spend nights in the property or is the fact that they are there during the day suffice?

She is paying rent for the flat where she is during the day, then goes to her daughters where she spends most nights because of her nervous disposition. Daughter doesn't charge her anything for stopping with her.

Again, any advice or thoughts on this would be gratefully received.

Regards

John

Hi,

To pitch in my tuppence worth....

If the tenant is using the property as her home for everything (eating, mail, etc) except sleeping I would argue that she is 'physically present' every day.

Of course, problems then arise if she's there less and less during the daytime but it doesn't sound like that's been an issue so far. I'd be surprised if there's any case law on this purely because those people who are found to not live at their tenancies are rarely if ever there at all whereas it sounds like your tenant/client does use the property as her home for all but one activity.

Mairi

Physically present won't be enough. The requirement is to occupy the dwelling as "the home".