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Neutral Citation Number:
Reported Number:	R(H)4/06
File Number:	CH 1854 2004
Appellant:
Respondent:
Judge/Commissioner:	Judge C. Turnbull
Date Of Decision:	13/02/2006
Date Added:	24/01/2005
Main Category:	Housing and council tax benefits
Main Subcategory:	occupation of the home, two homes and temporary absence
Secondary Category:
Secondary Subcategory:
Notes:	Housing benefit - dwelling normally occupied as claimant’s home - entry into residential accommodation on a trial basis - position where residence becomes permanent The claimant was a private tenant in receipt of housing benefit from the respondent Council. On 22 July 2003 he moved into a residential care home on a trial basis with the intention of returning to his rented accommodation if the residential accommodation did not suit his needs. On 25 August 2003 the claimant’s daughter-in-law wrote informing the Council that the claimant had become a permanent resident in the home on 19 August, and that the tenancy of his property would expire on 3 September. On 29 August 2003 the Council (a) superseded and terminated the Claimant’s entitlement to housing benefit with effect from 19 August 2003 and (b) decided that there was a recoverable overpayment of £28.47 in respect of the period 19 to 24 August 2003. Regulation 5(7B) and (7C) of the Housing Benefit (General) Regulations 1987 provides that a person who enters residential accommodation on a trial basis shall be treated as occupying the dwelling normally occupied as the home for up to 13 weeks. The claimant died on 7 September 2003. His appointee appealed against the decisions of 29 August 2003, contending that as the claimant had remained liable for rent on his former property until 3 September 2003, entitlement to housing benefit should have continued until then. The tribunal accepted that contention and allowed the appeal. The Council appealed to the Commissioner. The Commissioner decided that the supersession should have taken effect only from 25 August 2003, the first day of the benefit week following the date on which the relevant change of circumstances had occurred. The Secretary of State appealed to the Court of Appeal. Held, allowing the appeal, that: 1. paragraph 7B, which prescribes the conditions which have to apply before paragraph 7C comes into effect, requires that the intention to return to the dwelling normally occupied as the home must be present at the moment the claimant enters the residential accommodation (paragraphs 13 to 15); 2. paragraph 7C is a deeming provision and treats the claimant as occupying his home despite being absent, and he is therefore treated as still occupying his old home even though he has manifested the intention of not returning to it after his right to exclusive possession has ended by operation of his notice to quit (paragraphs 16 to 17); 3. the deceased remained entitled to housing benefit until the notice to quit expired (paragraph 18).
Decision(s) to Download:	R(H) 4_06 ws.doc