Absence abroad for 31 days - Housing Benefit appeal
Hi, I met a client on Friday who is waiting on a decision regarding his absence abroad for 31 days. Client went to Portugal to visit his mother from 29/10 to 28/11/18 which is 31 days (no bereavement, medical treatment etc). He informed HB in person before he went and his return date and was told that his HB would be OK. On his return however he was notified that his HB was suspended.
Any chance that HB can use their discretion and allow payment despite being just a few days over? If not, as he’s now in a full UC area will he need to claim UC? Client didn’t have any letters with him so not sure if claim is suspended or has been stopped. Obviously if suspended it can be reinstated but if stopped…UC :(
Due to see client once he gets the decision letter.
I think day of leaving UK and day of returning are not counted as days overseas so your client has only been overseas for 29 days but obviously this still takes him over the permitted 28 days. He can make a complaint about being misadvised before departing - had he been advised correctly by the local authority he would have had the opportunity to shorten his absence. As to whether HB is stopped or suspended hopefully somebody else can confirm that.
Thanks. Apparently the day you leave and the day you return are counted but will be using the incorrect advice if we need to take it further.
“In calculating the period of absence the first day of absence is included and the day of return is excluded.” which would be 30 days. Academic to your client’s case but interesting to know.
Housing manual has this:
3.483 There is no discretion attached to the 13 weeks rule. If an absence is likely to last longer than 13 weeks from the start benefit cannot be paid from the first day of absence or relevant payday.
Presumably therefore same applies to the 4 week rule for absences abroad and local authority has no discretion.
Thanks. Not looking hopeful then for discretion! If client had been given the correct advice he said that he would have come back a few days earlier.
There’s no doubt that he’s outside the 4-week time limit so I cannot see that an appeal would have any merit or could you include the incorrect advice? Good for good cause but how would that play with being away longer than the law allows? I don’t think the client could cope mentally on UC.
Appreciate your thoughts.
This is a long shot based on an interpretation of the HB Regs that is not correct in my opinion, but a Tribunal might go for it.
Reg 7(16)(d) says:
(d) in the case of–
(i) absence within Great Britain, any period of absence from the dwelling is unlikely to extend beyond or, in exceptional circumstances is unlikely substantially to extend beyond, an overall limit of 52 weeks beginning with the first day of the absence from the dwelling;
(ii) absence from Great Britain by a person to whom any of sub-paragraphs (c)(ii), (iii), (vii) or (x) apply, any period of absence from Great Britain is unlikely to exceed or, in exceptional circumstances is unlikely substantially to exceed, 26 weeks beginning with the first day of the absence from Great Britain; or
(iii) absence from Great Britain by a person to whom paragraph (ii) of this sub-paragraph does not apply, any period of absence from Great Britain is unlikely to exceed or, in exceptional circumstances is unlikely substantially to exceed, 4 weeks beginning with the first day of absence from Great Britain.
If this applies to your client, he could still be treated as occupying the dwelling for four weeks and, depending what day of the week he came back, might have continuous HB entitlement as the end of the award would have effect as a change of circumstance from the following Monday … by which time he is back home and entitled again so no need to end the award after all. In other words, you want days 29 and 30 to fall in the middle of a benefit week.
But there are two obstacles in your way and I think one of them is insurmountable.
First “exceptional circumstances” - HB can continue for up to 4 weeks provided the anticipated absence will not “substantially” exceed 4 weeks only in exceptional circumstances. How do you spin this as exceptional circumstances? Is it exceptional to have a relative abroad and pay them a visit now and then? Not impossible, but then you have the second problem: I think (16)(d) only applies where the absence was for one of the reasons in (16)(c): it’s the appearance of the word “and” between the four subparagraphs that is fatal to your case I think.
That means the rigid four-week rule applies. Because it was known in advance that his absence from GB was likely to exceed four weeks, HB must end immediately. If you appeal to the Tribunal you are going to have to argue that the proper construction of Reg 7(16)(d)(iii) is as a stand-alone provision. I don’t think it’s a strong case.
On the exceptional circumstances point, I’d argue that being told by the HB authority that you could go for 31 days without affecting your HB was exceptional circumstances. I’d certainly hope it’s exceptional for the HB authority to give wrong advice.
But yes, it does seem clear that you must fulfil sub-paragraphs (a) and (b) and (c) and (d) - all or nothing.[ Edited: 17 Jan 2019 at 11:13 am by Timothy Seaside ]
Thank you! As well as seeing his sick mother he did see a specialist regarding a leg injury that happened when he was last in Portugal but he wasn’t going specifically for medical treatment so could at a stretch use this as an exceptional circ.