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Mixed age couple, temporary absence of older partner, is HB award lost?

Paul_Treloar_AgeUK
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Any help gratefully accepted as this is making my head hurt.

MAC living in rented accommodation and receiving PC and HB. Older partner goes away on 12 January and returns 7 March at which point, both awards are stopped. No special reason for being away except family visit.

Yes,, PC award should stop but is there any mileage in arguing that the HB award should continue?

Whilst the absence abroad rules for HB are roughly the same as with PC, they are framed slightly differently in that they require you to be in GB and normally occupying your home.

Obviously, the husband wasn’t for more than four weeks but the wife has been in continuous residence and never left the country and under the other provisions in the regs, they are treated as only temporarily separated as less than 52 weeks.

Does this trump the 4-week absence rules here and can we argue that HB award should have continued in payment (and thus reestablish PC award)?

Don’t have my HB reference book to hand, so any help gratefully recieved.

chacha
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Was the older, or the younger partner, the HB claimant?

Elliot Kent
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Distinct question - what are the dates of the actual decisions to stop PC and HB?

Paul_Treloar_AgeUK
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Older partner was claimant for HB.

PC and HB were stopped upon his return. He didn’t notify them he was going, only the Housing Officer unfortunately.

Elliot Kent
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Paul_Treloar_AgeUK - 18 March 2020 02:11 PM

PC and HB were stopped upon his return. He didn’t notify them he was going, only the Housing Officer unfortunately.

I suppose what I’m thinking is if there is any scope for it to be dealt with as a closed period.

Paul_Treloar_AgeUK
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Elliot Kent - 18 March 2020 02:17 PM
Paul_Treloar_AgeUK - 18 March 2020 02:11 PM

PC and HB were stopped upon his return. He didn’t notify them he was going, only the Housing Officer unfortunately.

I suppose what I’m thinking is if there is any scope for it to be dealt with as a closed period.

Can’t see how this would work here Elliot. HB award needs to have continuous entitlement for the savings provisions to apply so unless there’s an argument that it maintains through the wife’s normal occupancy under the husband’s HB award, it looks pretty bleak.l

Elliot Kent
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Yes - I am imagining a situation where the husband has been abroad from 12 January to 7 March but the decision to terminate the awards isn’t made until - say - 10 March. There would then need to be a period of disentitlement and and overpayment for that period but because the conditions of entitlement were met as at the decision date, this wouldn’t be fatal to the continuity of the award.

chacha
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Was hoping the younger partner was claimant as HB could not have been terminated even if PC had.

Were they both absent from GB for the 4+ week period?

chacha
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chacha - 18 March 2020 06:23 PM

Was hoping the younger partner was claimant as HB could not have been terminated even if PC had.

Were they both absent from GB for the 4+ week period?

Scrap that, too late in the day, was thinking of something impossible. THE CPS, for HB and PC, would probably be the only possible chance but that could mean only HB is reinstated with a gap and they would still need to claim UC, unless they have some other sufficient income.

Paul_Treloar_AgeUK
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chacha - 18 March 2020 06:23 PM

Was hoping the younger partner was claimant as HB could not have been terminated even if PC had.

Were they both absent from GB for the 4+ week period?

Younger partner stayed here but older partner was HB claimant.

My thinking is as follows.

Reg, 7(1) of the HB-SPC Regs allows

Circumstances in which a person is or is not to be treated as occupying a dwelling as his home
7.—(1) Subject to the following provisions of this regulation, a person shall be treated as occupying as his home the dwelling normally occupied as his home—

(a)by himself or, if he is a member of a family, by himself and his family; or
(b)if he is polygamously married, by himself, his partners and any child or young person for whom he or any partner of his is responsible and who is a member of that same household,
and shall not be treated as occupying any other dwelling as his home.

Reg.7(13) goes onto deal with the temporary absence:

(13C) This paragraph applies to a person who is temporarily absent from Great Britain and who occupied the main dwelling as his home, or was treated as occupying that dwelling as his home, immediately before the period of absence from Great Britain.

(13D) Subject to paragraphs (13E), (13G), (17C) and (17D) a person to whom paragraph (13C) applies shall be treated as occupying the main dwelling as his home whilst he is absent from Great Britain, for a period not exceeding 4 weeks beginning with the first day of that absence from Great Britain, provided that—

(a)the person intends to return to occupy the main dwelling as his home;
(b)the part of the main dwelling normally occupied by the person has not been let or, as the case may be, sub-let; and
(c)the period of absence outside Great Britain is unlikely to exceed 4 weeks.

LA are saying that because he was away for more than 4 weeks his HB award stops.

However, reg,21 also allows that:

Circumstances in which a person is to be treated as being or not being a member of the household
21.—(1) Subject to paragraphs (2) to (4), the claimant and any partner and, where the claimant or his partner is treated as responsible by virtue of regulation 20 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person, shall be treated as members of the same household notwithstanding that any of them is temporarily living away from the other members of his family.

Given that reg.7(1) expressly allows the continues to occupy criteria to apply to the claimant and his family and reg.21 allows the couple to remain treated as a couple during a temporary absence not exceeding 52 weeks, does that mean that despite reg.7(13) implying husband’s absence should cause the HB award to cease, the fact of the wife remaining in residence and remaining as the partner of her absent husband that the HB award should in fact continue in payment throughout?

Hoping a well-known HB coat wearer might pass this parish sometime soon.

HB Anorak
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I see what you’re saying: as long as at least one member of the aggregated “family”, which takes us to “household” and Reg 21, remains in occupation for the purpose of Reg 7 then the claimant continues to satisfy the entitlement conditions even if s/he personally is absent.  Interesting argument.  I’m not convinced though.  Here’s what I think.

HB has one claimant who must personally satisfy the entitlement conditions in s130 of the Conts and Bens Act.  Those conditions include being liable to make payments in respect of a “dwelling … which he occupies as his home”.  s137 says regulations may prescribe circumstances in which a person is or is not to be treated as occupying dwelling.

Reg 7 is made under s137 for the purpose of deciding whether a person satisfies s130.

Reg 7(1) I think is about identifying which dwelling we are dealing with: in a case where for whatever reason the claimant has access to more than one dwelling s/he is to be treated as occupying the one that is the “normal” home: the full-out words at the end of para (1) I think make that clear.  Where the claimant is a member of a “family” (which this claimant was, as a couple is a “family”) the judgement made under Reg 7(1) involves looking at where the family normally lives.  So, for example, a person who works away during the week and returns home at weekends would probably be regarded for the purpose of Reg 7(1) as occupying the family home and not their mid-week digs.

But para (1) is subject to the rest of Reg 7, which means you won’t always automatically be treated as occupying that dwelling and only that dwelling, there will be circumstances in which you are treated as occupying another dwelling as well or instead and there are circumstances in which you will no longer be treated as occupying the normal home.  That brings us to temporary absence: a “person” - an individual - is no longer treated as occupying the dwelling if his/her absence exceeds the maximum time allowed.

Reg 21 unfortunately is a red herring I think.  It is concerned with aggregation of the household members.  While absent from the household for up to 52 weeks, the claimant does not stop being a member of the same household and therefore the claimant, partner and children are still aggregated as a family.  This principally affects the income and applicable amount; it affects Reg 7 only for the limited purpose of establishing which home from a number of possible candidates is the normal home.  I cannot see how it overrides paras (13C) et seq.  In this case, the effect of Reg 21 was that the claimant remained a member of a couple by virtue of Reg 21 but he personally ceased to occupy the dwelling for the purpose of Reg 7 and so he wasn’t entitled to HB.

Although the point you have made wasn’t argued, there is JM v London Borough of Tower Hamlets [2015] UKUT 0460 (AAC) with identical facts to this case.  The claimant personally was absent from home for long enough to end his entitlement.  But any overpayment arising from that fact was to be reduced by the amount that his partner could have claimed if she had been the claimant - underlying entitlement applies to partners as well as claimants.  But we wouldn’t be looking at underlying entitlement in the first place if the presence of the partner preserved the claimant’s entitlement during his absence.

Paul_Treloar_AgeUK
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Thanks Peter, I thought I was clutching at straws. Even if the wife could establish any HB award, that’s going to be working age so savings lost.

This is properly harsh, they’re both very disabled, she’s a good 13 years from retirement and from talking to our adviser, they’re really going to struggle to maintain a UC award.