Temporary Absence - Occupying as a home

In short, no, she does not have to stay overnight in the property.  There was a case way way back (have no idea of case reference) that held that any period of return in which the claimant occupies the dwelling as a home, no matter the length of time, is enough to end the period of temp absence.  I don’t think she can walk in the door, have a glass of water and walk out expecting another 13 weeks HB, but if she was going home, perhaps cleaning, cooking, eating for a few examples, then perhaps this might be enough to constitute a period of return.

Hope that helps-sorry I can’t remember the details, but I believe it is referenced in Zebedee/Ward.

I think the relevant case is R V Penwith.

In the case of R v Penwith DC HBRB [1988] 22 HLR 292;para A3/3.460 GM ex parte Burt it was held that the 13 week and 52 week time limits refer to absences which are continuous. If the claimant returns to, and occupies the dwelling as a home , even for a short time, the allowable period of temporary absence starts again. The DWP suggests (GM A3.460) that a stay at home lasting for example, only a few hours may not break the absence but one that lasts 24 hours may do so.

From experience I would say the claimant would need a very good explanation for the absense, with as much evidence as possible, including; statements/letters/medical evidence/bills and even benefit letters to prove that was her main address.

Hope that helps

MNM - 16 November 2012 03:11 PM

I think the relevant case is R V Penwith.

In the case of R v Penwith DC HBRB [1988] 22 HLR 292;para A3/3.460 GM ex parte Burt it was held that the 13 week and 52 week time limits refer to absences which are continuous. If the claimant returns to, and occupies the dwelling as a home , even for a short time, the allowable period of temporary absence starts again. The DWP suggests (GM A3.460) that a stay at home lasting for example, only a few hours may not break the absence but one that lasts 24 hours may do so.

From experience I would say the claimant would need a very good explanation for the absense, with as much evidence as possible, including; statements/letters/medical evidence/bills and even benefit letters to prove that was her main address.

Hope that helps

That’s the one.

Just found this as well, it’s well worth a read;

http://www.cpag.org.uk/content/home-sweet-home

Thank you for all of this - I have tribunal next week, so I’ll let you know how we get on!

In Burt, Mr Justice ( as then was) Simon-Brown said:

“Not without hesitation in the light of Mr. Drabble’s characteristically able argument, I
have concluded that regulation 5(8) is indeed to be construed as Miss Findlay for the
applicant here contends, namely, so as to prevent a period of absence being held to
continue despite periods of return, however short. In my judgment, if, in a case
such as this, the authority wish to terminate the occupier’s eligibility for housing
benefit on the footing that he or she is essentially absent from the dwelling in
question, then, where there has not been a literally continuous period of absence for
52 weeks (or, I would add parenthetically, a shorter period if requirement 5(8) be
not satisfied) they can only do so by operation of regulation 5(1), i.e. on the basis that
the claimant does not normally occupy that dwelling as his or her home and
that his or her absences are accordingly not in any real sense temporary. It is
regulation 5(1) that enshrines the governing principle, namely, that a person is to be
treated as satisfying the requirement of occupation only in respect of a dwelling
“normally occupied as his home”

I have attached a copy of Burt for you

Thank you - I represented at the tribunal on Monday and will get a written decision - I’ll let you know the outcome