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52 week rule. Query about ‘intending to return home’ and who decides this

JAS1
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Advice Worker, Gaddum Centre

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Father of client is in a care home after being in hospital for 14 weeks.

Would HB only come to an end if the care home placement is made permanent? The father initially intended to return home but has since become more unwell.

Who decides whether the person ‘intends to return’ home (so meeting the criterea for the 52 week rule)? In this case the father has become so delirious he can not say himself one way or another but he may improve and go home after all.

Thanks very much

HB Anorak
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He is allowed a 13-week trial period in residential care within a total period of absence of up to 52 weeks.  There does not have to be a continuing intention to return home throughout the trial period: he needs to have entered the care home with the intention of returning home if it didn’t work out, but the Regs recognise a person’s realistic intentions may be in a state of transition at such times.  See Secretary of State for W&P v Selby Council & Another

Paul_Treloar_AgeUK
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You can continue to be paid HB for up tp 52 weeks during a temporary absence if you are in hospital or a care home receiving care, provided you intend to return home. This period can be extended in “exceptional circumstances” which the Shelter handbook states includes situations like an unexpected relapse.

If they do ask questions, it might also be worthwhile exploring whether the father is receiving any funding for his case home place from the local authority as there are different rules for short-term, temporary and permanent care home placements.

JAS1
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Thanks guys.

Anorak -

I don’t know if he entered intending to return actually. Apparently he lost hope and just said he would never go home, but that was once he became delirious with a water infection so wasn’t thinking straight. Thanks for the case law ref, appreciate it!

Paul -

There won’t be any need to extend it I hope, the son wants to take over the tenancy soonish if possible, they lived at the same home. However I was just wondering whether the father could carry on claiming HB over the next few weeks or if social services decide he is now a permanent resident and not safe to return home HB will immediately stop. Or if HB decide he doesn’t ‘intend to return home’ it could also then stop. He is not in a position to state whether he intends to or not himself.

Basically, I’m trying to avoid a situation where HB ends and the son (my client) is liable for rent all of a sudden and has to apply for UC. We are waiting on an SDP application and I want him on SDP before he goes over to UC to increase chance of protecting this when the new regs regarding SDP/UC transitional protection come in (if I understand things correctly)

Hope this makes some sort of sense!

[ Edited: 25 Oct 2018 at 06:15 pm by JAS1 ]
Stainsby
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I agree with Anorak re Selby, but there is another potentially useful housing law case that may assist

In Hammersmith and Fullham LBC v Clarke, Mrs Clarke (JC) sent a letter signed by her but written by her social worker, to the council’s “right to buy” section stating that she had decided to become a permanent resident at the nursing home though when she had made a previous application for the right to buy, it had been her intention to live at the house in W12. The council took this to mean that JC had terminated the tenancy agreement and on 9 February 1999 served a notice to quit. The defendants did not vacate and on 2 September 1999 proceedings for possession were started.

Hammersmith’s application was dismissed and the Council appealed.

The Court of Appeal dismissed the appeal and held that

In assessing whether a tenant intended to live at a dwelling house in order to determine whether it was occupied as his only or principal home for the purposes of s.81 Housing Act 1981, the court would focus not on fleeting changes of mind but on the enduring intention, particularly in the case of a vulnerable tenant suffering from depression.

[ Edited: 28 Nov 2018 at 06:21 pm by Stainsby ]

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Mike Hughes
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The thing to watch on this sort of case is who speaks to DWP. This is all about the intent of the claimant and not necessarily whether it’s a realistic intent. However, over the years I have had numerous cases where a kindly social worker or relative is asked (or volunteers) information about intent and a HB cessation decision inevitably gets based on that. All it takes is one “Well he says he wants to go home but realistically he’s never coming out” type comment from a relative and that’s the end of HB and the beginning of an appeal. When I used to have a community care hat (many years ago now) I used to spend considerable time ensuring the social worker had at minimum an email reminding them that it’s not their view of intent or the likely outcome of a placement and then working my way through the likely culprits amongst the relatives. Inevitably, brother would say he would be handling the finances then sister would take a phone call and…

JAS1
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Cheers Stainsby and good point Mike