IN THE UPPER TRIBUNAL	Case No.  CH/144/2015
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Mark

Decision:  The appeal is dismissed, but for different reasons from those given by the First-tier Tribunal..  

REASONS FOR DECISION

1.	This appeal is brought with the permission of an Upper Tribunal Judge from a decision of the First-tier Tribunal dated 23 October 2014 disallowing the appeal of the claimant from a decision of the council dated 9 July 2014 that she was not entitled to housing benefit for the period from 3 March to 29 May 2014.

2.	The claimant was the tenant of a flat where she lived with her two children.  She was in receipt of housing benefit until 2 March 2014, but on 26 February 2014 she was sentenced to a one year term of imprisonment, commencing that day.  A prison link worker at the prison to which she was committed helped her complete a form on 28 February 2014 in which the prison address was given and in which she notified the council of her imprisonment, of the earliest date on which she could be released (27 August 2014) and a Home Detention Curfew (HDC) date of 29 May 2014.  The last date was the date on which she could be released subject to a home curfew between 7.15pm and 7.15am each night.  The form confirms that the claimant did not get any income while in prison and that she intended to return to her home address.  There is no suggestion that anybody else was living at her home, or even visiting it, while she was in prison.

3.	This information is said to have been received by the council on 4 March 2014.  According to the council’s summary of facts, on 24 March 2014 the claimant’s entitlement to housing benefit was terminated with effect from 2 March as she was not going to return to the property within 13 weeks of sentencing.  There is no copy of any such decision on the file and no suggestion that the claimant was notified of it except in relation to the overpayment decision referred to in the next paragraph.

4.	On 25 March 2015, a benefit decision notice was issued.  It was the calculation of an overpayment of housing benefit of £72.85 for the period 3 to 9 March 2014 which was said to be recoverable from the claimant’s landlord in due course.  The reason for calculation was said to be “Cancellation”.  This appears to have been the only indication sent to the claimant that her housing benefit had been cancelled, and it would appear from the document itself that it was sent to her at her home.  There is no evidence that it was ever forwarded to her while in prison or that she was aware of it before her release under curfew on 29 May 2014.

5.	When she was released on curfew, it was in fact on terms that she stayed overnight with her parents.  In the written submissions made on her behalf to the tribunal, and in the oral evidence as recorded in the record of the proceedings, this is stated to have been because the HDC equipment required a landline, which she did not have at her home and for access by the Probation Service.  In oral evidence, however, it is also stated that she went to her home every day and spent time there and the written statement of the claimant to the council dated 14 July 2014, supported by a declaration of truth, states that she was in her own property throughout the day.

6.	On 2 June 2014 the claimant made a fresh claim for housing benefit, asking  on 27 June 2014 for it to be backdated to 3 March 2014.  The backdating request was refused by the council.  The decision to refuse it is dated 8 July 2014 and states that the claimant had been absent from the property for “over 13 weeks (just) and not returned to home address. therefore unable to award B/D.”  It also stated that good cause was not proved by the claimant (file p.9).  The letter informing the claimant of the decision states that the council can only backdate benefit if the claimant had good reason for not claiming earlier, but then states that “our decision is not to award backdating on the grounds that you have been released on curfew to your Fathers address, and as such have not returned to [your home].” 

7.	On appeal, the tribunal found that the period of 26 February 2014 to 29 May 2014 was exactly 13 weeks.  With some considerable regret, I disagree.  26 February 2014 was a Wednesday and 29 May 2014 was a Thursday.  The day when the claimant was taken to prison is to be included in calculating the period of absence from the home and the date of release is not to be included (see KdeS v Camden [2011] UKUT 457 (AAC).  Including both Wednesday 26 February and Wednesd

8.	ay 28 May, but not the date of release (29 May) the claimant was absent from home for 66 days or 13 weeks and 1 day.

9.	The tribunal went on to find that the claimant stayed in her own home outside the curfew hours and the hours when she was working, and that her belongings and her children’s belongings continued to be kept in her home and that she continued to maintain and clean it from her release.  It found, however, that the provisions in regulation 7(16)-(17) of the Housing Benefit Regulations 2006 did not apply to the claimant because she was being detained in custody following conviction, and appears to have concluded that she was not therefore entitled to rely on the more general provision of regulation 7(13), which provides that subject to paragraph (17) (which, as it correctly found, did not apply) “a person shall be treated as occupying a dwelling as his home while he is temporarily absent therefrom for a period not exceeding 13 weeks beginning from the first day of that absence from the home only if – (a) he intends to return to occupy the dwelling as his home; and (b) the part of the dwelling normally occupied by him has not been let or, as the case may be, sub-let; and (c) the period of absence is unlikely to exceed 13 weeks.”

10.	It is plain that the claimant’s home remained her home during her imprisonment in the sense that, as required by regulation 7(1), it was the dwelling normally occupied as her home.  However, that general rule only applies subject to the following provisions of that regulation, and it is plain that if a person is personally absent temporarily from the dwelling then that person must bring him or herself within one of the subsequent provisions of the regulation.  It is also plain that, on the finding of the tribunal, the claimant did return to her home and use it as such so far as she was able consistently with the terms of the curfew from the date of her release.  She was therefore no longer absent from it from that date onwards even though she was prohibited from sleeping there at night.

11.	Given the tribunal’s finding that the period of absence did not exceed 13 weeks, it appears to me that the appropriate course was to consider the application of regulation 7(13), including the question whether the claimant had good cause for the delay in applying for backdating.  It is plainly a prospective provision which ought to have been taken into account by the council before deciding whether to supersede, or as it put it, cancel the award of housing benefit in March 2014.  In reality the appeal before the tribunal was as much against that earlier decision as the refusal to backdate and it appears to me that there was probably good reason to treat the appeal as an appeal out of time against the original supersession decision and to extend time on the basis that there was good reason for the delay, namely that the claimant had been in prison and had not learned until her return of the decision which had been taken.  Alternatively there were clearly similar grounds on which the tribunal could have held that there was good cause for the delay in claiming benefit for the period in question.

12.	Given the grounds on which permission to appeal was sought, I also have some difficulty in seeing how the judge considering the application could possibly have considered that the statement of reasons (contained only in the decision notice) was adequate when it totally failed to explain why regulation 7(13) should not assist the claimant.

13.	Even, however, with every possible finding of fact in favour of the claimant, for the reasons I have given, the period before she could be released under curfew was one day more than 13 weeks, so that regulation 7(13) cannot assist her.

(signed)	Michael Mark
		Judge of the Upper Tribunal

		24 June 2015