Mixed-age couple, temporary absence and closed supersession
Hi folks, have got an enquiry which I would appreciate any thoughts as to how we might argue this one.
Couple were receiving pension-age HB on 14.05,19 and in July 2021 they also manage to establish a PC award despite some fierce resistance from DWP. All good.
However, it’s now come to light that they went abroad in October 2020 and due to a car accident and hospital stay, they ended up being away for 31 days, so exceeding the 28 days allowed.
Local authority have written to them revising the award and saying the break in claim means that it’s now a working age HB award (because of an SDP being in payment?!) and that there is an overpayment due to application of bedroom tax and they’ve also cancelled the claim from 09.10.20 (when they went abroad) to 15.11.20 (the Sunday before the Monday when they returned to the UK).
I’m going to advise flagging the guidance in LA Welfare Direct 6/2020 as being applicable at that point in time:
2. Temporary absence from home outside Great Britain
1. We are aware that there are claimants who travelled outside Great Britain (GB), expecting to return within their allowable period of absence under the Housing Benefit regulations, but have been prevented from returning due to travel restrictions outside GB. Easements are now in place which allow people to remain entitled to HB where they have been temporarily prevented from returning to GB due to COVID-19 travel restrictions.
2.. Regulation 7 of the Housing Benefit Regulations 2006 (SI 2006/213) and the Housing Benefit (persons who have attained the qualifying age for state pension credit) regulations 2006 (SI 2006/214) has not been amended. Therefore, the usual rules on not subletting and having an intention to return still continue to apply to any period of temporary absence.
Will also advise that the clients argue that the absence was never intended to exceed 28 days and that the HB award should be reinstated for the first 28 days of absence 09.10.20 to 05.11.20 which would effectively leave us with a nil entitlement decision for w/c 09.11.20.
Is there any mileage do you think in arguing that, if they don’t exercise their discretion to allow the longer absence, given it is fairly minor anyway, that they can do a closed-period supersession for the week in question and that pension-age HB award should be reinstated?
My worry is that if we can’t argue for reinstatement of the pension-age HB award, then arguably the decision to award PC from July 2021 is also incorrect and they could in fact have two significant overpayments rather than one.
Any thoughts gratefully received.
If it was the HB claimant personally who was injured, and if they can produce medical approval for any post-hospital convalescence (letter or referral or something like that), shouldn’t this be a case where they would have been entitled to 26 weeks’ absence from GB anyway? If the car accident and hospitalisation occurred before the original 28 days were up, and then the reason for absence changed to one that allows a longer period, they are continuously treated as occupying the home in GB. It would be more difficult if they had overshot the 28 days before the car accident, but that seems unlikely if they returned just three days later.
On the assumption that they were initially being treated in hospital, and then convalescing out of hospital before being able to travel, their absence fell under Reg 7(16)(c)(ii) and then (iii), which entitles them to 26 weeks by virtue of para (17C). There is the requirement for their convalescence to be “medically approved” though.
For some reason the term “residential accommodation” in subpara (c)(iii) seems to cause confusion, so cite the definition in para (18). Two comments in that regard:
- the policy intention is that care/convalescence etc outside a hospital or care home setting requires medical approval, whereas care/treatment in a care home or hospital can be assumed to be taking place for a good reason
- it is impossible for any setting outside the UK (not sure about Northern Ireland, but if they weren’t in NI not a problem) to satisfy the definition of “residential accommodation”, therefore wherever they were was not residential accommodation and could potentially satisfy (c)(iii). That is because the terms used in the definition all have themselves further definitions which limit them to British institutions.
Seems to me there is a chance of preserving the continuous award under the pensioner regs.
If not, well the good news is it looks as if they have done a closed period supersession fortunately. Bedroom tax is an interesting one though: are they saying this is one of those cases where Article 8 of the No 31 Order (SDP gateway still applied in October 2020) requires the older partner to be treated as working age? Because the break in entitlement would otherwise have led to HB terminating? That raises the question whether the fiction of treating the older partner as working age should be carried beyond HB Reg 5 and into Reg A13. Most people on here think not - Article 8 says the deeming fiction applies to HB Reg 5, it doesn’t say anything about treating them as working age for any other purpose.[ Edited: 29 Nov 2021 at 10:07 pm by HB Anorak ]
Thanks Peter, I must admit I was a bit lazy on the hospital side of things because as I’d remembered it, the 26 week absence was only if you went abroad specifically because of the need for hospital treatment but ”(ii)resident in a hospital or similar institution as a patient;” certainly seems to be drafted broadly enough that a stay of a couple of nights before the 4 weeks allowed ordinarily might be enough.
And obviously I think you’re correct that they have already done a closed period supersession but the HB award has been converted to working-age - I was grasping at straws for that to allow for the pension-age HB award to resume but having done some more reading, I can see there would have to be an entitlement under those regs to allow that to happen and without the 26 week extension (or some extra-statutory shenanigans), then that probably isn’t possible.
I might suggest they at least make the argument on the bedroom tax if so, to see whether they accept that Art.8 of CO31 only mentions reg.5 and therefore reg.A13 should be taken at face value and the reduction shouldn’t apply.
Thanks again, that’s been really helpful to think through some of this. There are some other aspects to the case that make this less than straightforward but this is good for the moment.
Just to update, when it was impressed upon the client the serious nature of this situation, he went away and managed to find the return ferry tickets originally booked to show the intention to return within 28 days and council as a result exercised their discretion and reinstated HB award under pension-age regs.
So we didn’t need to go into any other arguments but thanks again Peter.