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Neutral Citation Number:	2010 UKUT 7 AAC
Reported Number:
File Number:	CH 1986 2009
Appellant:	Torbay Borough Council
Respondent:	RF
Judge/Commissioner:	Judge N J Wikeley
Date Of Decision:	14/01/2010
Date Added:	28/01/2010
Main Category:	Housing and council tax benefits
Main Subcategory:	occupation of the home, two homes and temporary absence
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2010] AACR 26. Housing benefit – occupation of the home and temporary absence – convicted prisoner serving 15 weeks in prison – meaning of “undergoing medical treatment in accommodation other than residential accommodation” The claimant was in prison for 15 weeks following conviction. It was clear from the date of sentencing that the actual period to be served was likely to be between 14 and 17 weeks. Throughout this period he suffered from Crohn’s Disease and was on medication. The local authority decided that he was not entitled to housing benefit for the period of absence because he did not meet the conditions of regulation 7(13)(c) of the Housing Benefit Regulations 2006, which provides that a claimant is to be treated as occupying a dwelling as his home where the period of absence is unlikely to exceed 13 weeks. The First-tier Tribunal agreed that that was correct and that neither the tribunal nor the local authority had any discretion in the matter if those conditions were not met. However the tribunal found that he was undergoing medical treatment in accommodation other than residential accommodation and therefore fell within one of the categories of person within regulation 7(16)(c) who could under regulation 7(17) retain entitlement to housing benefit for absences of up to 52 weeks. The local authority appealed to the Upper Tribunal. Held, allowing the appeal, that: 1. the statutory language of regulation 7(13)(c), unlike that of regulation 7(16)(d), excludes any discretion to pay for up to 13 weeks where the absence is unlikely to be substantially longer (paragraphs 12 to 16); 2. the tribunal erred in law in that it adopted an unduly literalist interpretation of the narrow terms of regulation 7(16)(c) without having regard to the wider context of the regulation, which requires that there must be a connection between the reason for the absence from home and being within one of the specified categories of claimant in regulation 7(16)(c) (paragraphs 20 and 21); 3. the word “while” in regulation 7(16)(b) does not appear in the parallel provision in regulation 7(13)(b), and was added here to demonstrate the need for some causality between the absence and the prescribed status, a requirement which is irrelevant under the blanket 13-week rule, which potentially applies to all housing benefit claimants temporarily away from home for whatever reason (paragraph 23); 4. the fact that special provision is made for remand prisoners, who may qualify under the 52-week rule (see regulation 7(16)(c)(i)) and also for prisoners on temporary release, is a strong indication that convicted prisoners are meant to be excluded (paragraph 24); 5. when the temporary absence rules were changed, the Social Security Advisory Committee recommended that the there should be a discretion to pay for up to 13 weeks where the absence is unlikely to be substantially longer and that convicted prisoners with special needs should have protection for up to 52 weeks, but the Government rejected both those recommendations and the current regulations carry that policy intent into effect (paragraphs 28 to 31); 6. the First-tier Tribunal misinterpreted and so misapplied regulation 7(16)(c)(iii) and its decision must be set aside (paragraph 32).
Decision(s) to Download:	[2010] AACR 26 bv.doc