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Temporary absence - hospital stays and capacity

 

Lostdog
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In relation to claimants residing in supported accommodation for people with mental health issues:

Claimants are often in and out of hospital, sometimes for long periods of temp absence.  In the majority of cases it is agreed by support staff and hospital staff that the property should be left open to them to return and there is an intention for claimant to return.  All concerned want to ensure the claimant’s accommodation (and HB claim) is not put at risk.

At point of admitting to hospital they would be unwell and there may be issues around capacity to sign/ability to understand what they’re signing, but no appointeeship set up.  Sometimes they might be taken against their will and sectioned.

LA is requesting that any statement of intention to return for HB purposes must be made by the claimant (not the support worker).  Given the above scenario, this is problematic. 

LA suggest we need to organise appointees for people if this is likely to happen and that maybe it could be incorporated into a general authority to disclose form.  Organising speculative appointees in case of loss of capacity doesn’t seem feasible. 

I am considering adding the following to our authority to disclose form:
“I further authorise support staff to inform the housing benefit department of any temporary absence, this to include making an assessment of likely duration of absence and intention to return.  This will include any period spent in hospital.  I would request that the Housing Benefit department accept this assessment in relation to my benefit claim.”

Do you think this should suffice to enable the LA to accept support staff’s word on temp absence and intention to return?  If not, any other ideas?

Thanks

     
chacha
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Lostdog - 08 August 2017 04:08 PM

I am considering adding the following to our authority to disclose form: “I further authorise support staff to inform the housing benefit department of any temporary absence, this to include making an assessment of likely duration of absence and intention to return.  This will include any period spent in hospital.  I would request that the Housing Benefit department accept this assessment in relation to my benefit claim.”

I don’t think it’s that simple, but see paragraph 30 of the case below, the LA can’t say the request has to come from the claimant (In fact there is no need for a request as it’s just part of determining HB entitlement, so if they are aware of the absence the have to consider entitlement). The crux, is a how realistic an intention is. 

https://www.rightsnet.org.uk/pdfs/Scottish_decisions_2015_upload/CSHB/CSHB_0405_2005.pdf


So, in these type of cases, unless there is clearly no way the person will be returning, I would be expecting HB for up to 52 weeks.


Also see R(S)1/93

      [ Edited: 8 Aug 2017 at 04:42 pm by chacha ]
Lostdog
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Thanks chacha.

I’m not sure how para 30 directly relates to whether the statement of intention to return (within 52 weeks) can come from a party other than the claimant.  This appears to be the stumbling block, at least from the LA’s point of view.  I can see that once they are made aware (potentially by the landlord) they then have to come to a view to determine ongoing HB entitlement, but their current position is that in order to pay the claim they must obtain evidence of intention to return from the claimant.

I’m struggling to find R(S)1/93 - it may be my lack of knowledge within Rightsnet!

     
ClairemHodgson
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Lostdog - 08 August 2017 05:38 PM

Thanks chacha.

I’m struggling to find R(S)1/93 - i

http://administrativeappeals.decisions.tribunals.gov.uk//Aspx/view.aspx?id=547

     
Lostdog
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Thanks Claire.

Again, I’m not sure how this counters the LA’s assertion that a statement of intention to return must come from the claimant only.  Do tell me if I’m missing something!

Any other thoughts very welcome.

Thanks

     
Paul_Treloar_AgeUK
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Lostdog - 08 August 2017 05:38 PM

Thanks chacha.

I’m not sure how para 30 directly relates to whether the statement of intention to return (within 52 weeks) can come from a party other than the claimant.  This appears to be the stumbling block, at least from the LA’s point of view.  I can see that once they are made aware (potentially by the landlord) they then have to come to a view to determine ongoing HB entitlement, but their current position is that in order to pay the claim they must obtain evidence of intention to return from the claimant.

I’m struggling to find R(S)1/93 - it may be my lack of knowledge within Rightsnet!

Isn’t it para.27 that has the more relevant finding in your case?

“In no way was it perverse for the tribunal to prefer information recorded contemporaneously and from an authoritative source as more correctly representing the tenant’s intention in the relevant period”

The relevant regulation simply states that the claimant must intend to return home, it doesn’t say that the claimant themself must do the notifying - I know it’s dancing on the head of a pin but from what you describe, this does seem unecessarily obstructive from the LA.

     
Lostdog
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Thanks Paul.  Yes, para 27 seems more relevant, but perhaps the lack of specifics within the regulation itself is the best place to start.  Appreciate your advice on this.

     
chacha
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@ Para 33

“ A ‘desire’ to do something is quite distinct from an ‘intention’ to do so. An intention involves the aim or
purpose of carrying out what is intended, whereas a desire may be no more than a wish or hope, however
remote, to do something; ……………”

This statement applies, conversely, to a claimant or the “appropriate party” making the decision, in these situations. I have pointed to this because I know it has been argued that, because the claimant is unable to show any desire or intent at a particular point, then there can’t be a realistic intention to return. Which is obviously rubbish, but like I said, the same can be said for an appointee/appropriate person in cases like these, hence the difficulty of creating something that says “I give permission to someone else to declare my intention”.

It may not be exactly helpful but at least it is quite clear, in my view, that no one can predetermine anything so the LA can’t insist on the request being made by the claimant.

Depending on the circumstances of any particular absence it’s entirely possible that one or the other party mentioned above would be able to show intention, for whatever reason, so it really doesn’t matter how the intention is shown. The LA can’t say “it has to be the claimant” because the claimant may not actually be able to make the decision due to MH issues. The purpose of the whole exercise is to hold on to HB entitlement and to their home temporarily, so the individual doesn’t lose the home.

The appropriate person should be able to ensure that desire and intent, in difficult circumstances, are realistic and can evidence the case as such.

How to make it easier to show a realistic intention to return in the most difficult of these cases? Sorry, I’m not sure I know, but I do know a LA can’t apply this as a policy, unfortunately a form to state that a representative can definitely have permission with regard to showing an intention, alone, will also probably not be enough in some cases (As also shows in para 27 pointed out above).

     
MartinB
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Ok, you are clearly trying to do the right thing, (irrespective of any legal nicety) by preventing homelessness occurring.

Therefore I think it might well be worth contacting your LA HPU, and notifying them, or contacting their Homelessness Strategy officer, as really the idea of a Authority homelessness strategy is that these type of glitches/problems are actually ironed out…........

There are large costs to the Hospital, and Social care of not being able to discharge from hospital into appropriate accommodation. There will be large costs to the Local Authority in terms of more homeless acceptances…...........

Unless I am missing something (that unfortunately, is entirely always possible Lostdog) this should be raised as a strategic type homelessness concern.

     
Dan Manville
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Hi Lostdog

If you’re dealing with people detained on section then they’ll probably be on Social Services radar and if you were acting in chorus with the Social Work team it’ll likely make your life easier; they’ll have ties back to the Revs & Bens team and may be able to iron out any issues.

The last thing a Social Worker wants is for a tenancy to be disrupted as it makes discharge planning so much more complex so I’d guess; at least if you speak to the right SW, that they’ll be happy to assist.

     
Lostdog
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Thank you everyone for your responses.  The LA have maintained their position that any intention to return should be signed by the claimant.  I shall continue my quest!

     
ClairemHodgson
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Lostdog - 16 August 2017 04:16 PM

Thank you everyone for your responses.  The LA have maintained their position that any intention to return should be signed by the claimant.  I shall continue my quest!

bizarre

i understand your client has mental health issues, which is one thing

what would your LA say if, for example, your client was in hospital having had a traumatic injury to both hands and so was physically unable to sign anything?

result is the same, person unable to sign.

seems to me your LA’s position is untenable…..to the point of irrationality?

     
HB Anorak
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You really shouldn’t have to wheel out a Tribunal over a petty point like this, but if that’s what it takes ...

If the Council is digging its heels in, there is no point arguing at pre-decision stage.  You need a firm decision that the claimant is no longer entitled to HB - this can be appealed immediately.  My grounds for appeal would be:

- the claimant’s intention to return, and the time within which he is likely to return, are findings of fact or constituent determinations upon which the outcome decision relies
- where for whatever reason the claimant is unable to express directly what s/he intends, his/her intention must be inferred from other evidence
- as a matter of law that intention does not have to be expressed by the claimant: inferring it from other evidence is sufficient
- anyway, the case law tells us that the claimant’s directly expressed intention does not have to be relied on where other evidence suggests it is unrealistic.  In this case, we don’t have the claimant’s expressed intention but we might well have other evidence as to what that intention might realistically be
- as a matter of common sense, where there is no reason to suppose that the claimant has formed a positive intention not to return, it would be reasonable to assume by default that s/he does indeed intend to return.  The Council is adopting a perverse position along the lines of “the claimant is in a coma, so how do we know he wasn’t on the verge of giving notice just before the bus hit him, eh?  Unless he tells us he wasn’t on his way to the housing office to surrender his tenancy, we cannot be sure that wasn’t the case”.  In the absence of some positive reason for thinking the claimant does not intend to return home, why would anyone think he doesn’t?  Then it’s just a question of realistic likelihood and duration of absence

      [ Edited: 17 Aug 2017 at 10:23 am by HB Anorak ]
Lostdog
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Thanks Claire and HB Anorak.  This is very helpful. 
At this stage we are trying to work with the LA to come to a pragmatic agreement.  I hope not to be going down the tribunal route!

     
chacha
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Lostdog - 17 August 2017 05:05 PM

Thanks Claire and HB Anorak.  This is very helpful. 
At this stage we are trying to work with the LA to come to a pragmatic agreement.  I hope not to be going down the tribunal route!

Probably make a complaint, about the procedure itself?

Unless they have already made such a decision?