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Temporary absence - when does the 13 weeks start?
Client was sentenced and imprisoned on 9 Dec 2010. Released and returned home 11 March 2011. LA considers that the first day of absence was 9 December and seems a bit muddled as to whether they contend that the day of release counts as a day of absence. Anyway, they contend that the absence exceeded 13 weeks.
I don’t think that 9 December should count as a day of absence - nor 11 March for that matter, thus making the absence exactly 13 weeks - thus not exceeding 13 weeks. Any thoughts?
If I can convince the Tribunal on this point I still have to convince it that from the outset the absence was unlikely to exceed 13 weeks.
See para 10 of CSH/0499/2006
I think the first day of absence would be the day he left the property and the date he rturned to the property speaks for itself with regard to date the 13 week ends. So, sadly, my dates of time absent would be 09/12/10 to 10/03/2011. Shame it was not a leap year.
On the specific point of what counts as the first day of absence, CSH/0499/2006 conflicts with other legal authority. For example, see R(S) 1/66 where the day of return from abroad was not considered to be a day of absence. If a Tribunal accepts the principle properly applies to HB, the latter decision should be preferred on the grounds it has “reported” status. [*Edited to add*: However, note the caution @ para 16 of R(S) 1/66 where the Cmmr says: “...it cannot be assumed that the same result would necessarily follow under some other differently worded section or regulation.”]
Notwithstanding the above point, was it clear from the outset that absence would not exceed 13 weeks? If not, HB would only be payable from the point in time that it became clear that absence would not exceed 13 weeks AND the clmt’s intention to return was realistic (i.e. not barred by practicality such as being imprisoned) .
[ Edited: 19 Jul 2011 at 05:57 pm by Kevin D ]CSH/499/2006 is not authority for any particular method of establishing the precise moment at which absence from home begins.
Agreed and I did not say it was. Was just pointing out the start/end dates as far as the Judge was concerned.