HB, temporary absence and lacking capacity

Anyone know if there is any case law, argument to be made etc that allows for HB to continue for longer than 52 weeks in the following circumstances. Tenant is in hospital and has been for nearly 2 years. HB stopped after 52 weeks. Tenant wants to return to the property but Court of Protection has found that she lacks capacity so won’t allow her to. I know that if she returned for a night the 52 weeks could start running again but she is not allowed to do this.

Any thoughts?

Capacity here should be on a decision specific basis, so if the client has the capacity to decide that she wants to return home for 24 hours in order for her HB payments to resume, then that’s probably where you need to focus your attention for the moment.

See section 7 of our Arranging for someone to make decisions on your behalf factsheet for more of the CoP.

How has she managed to retain her home if the rent hasn’t been paid for 52 weeks though, I’m quite surprised?

i should have thought it’s going to be a permanent absence…...

She has made sporadic rent payments herself - presumably from her other benefits but does have rent arrears.
She feels she does have capacity and is appealing the CofP decision - this is all taking a long time. LA want her to terminate tenancy but she doesn’t want to.

ClairemHodgson - 05 July 2017 10:15 AM

i should have thought it’s going to be a permanent absence…...

I agree it sounds like a distinct possibility, but I worked with people on continuous MH sections in a psychiatric hospital who therefore had extended stays, whereby there were still designs by medcial staff to get them home eventually. They would generally let them stay at home for a night to protect HB in the meantime, with appropriate supervision etc.

There is case law on exactly these facts. Cannot look it up just now but it didn’t go in claimant’s favour. Arguing 52w limit breached Convention rights

HB Anorak - 05 July 2017 11:29 AM

There is case law on exactly these facts. Cannot look it up just now but it didn’t go in claimant’s favour. Arguing 52w limit breached Convention rights

Is it these?

CH/2418/2015 Whether housing benefit 52-week temporary absence rule discriminates against a severely disabled claimant [2017] UKUT 114 (AAC)

[2013] EWCA Civ 1584 Whether housing benefit 52 weeks temporary absence rule discriminated against claimants detained under Mental Health Act

Both found no discrimination in having 52 week limit.