Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  CH/378/2011

ADMINISTRATIVE APPEALS CHAMBER

 

BeforeE A JUPP Upper Tribunal Judge: E A Jupp

 

Decision: The decision of the First-tier tribunal given on 28 April 2010 under Registration No. 242/10/00949 did not involve a material error in law.  Accordingly, the claimant’s appeal is dismissed.

 

 

REASONS FOR DECISION

 

1. The claimant is a single parent who was awarded housing benefit (HB) in respect of a property from 23 January 2006.  From 19 March 2007 to 2 August 2009 the award was on the basis of her earnings, child benefit and tax credit.  From 13 May 2005 her income was too high for her to qualify for council tax benefit (CTB).

 

2. On 31 July 2009 (Friday) and 1 August 2009 the local authority received notice from the Department for Work and Pensions that the claimant was entitled to income support from 29 July 2009; on 3 August 2009 it superseded the HB award from that date to take account of the change in income.

 

3. However, on 5 August 2009 the authority received an HCTB7 notice from the Prison Service that the claimant had been received into custody on 31 July 2009, convicted and sentenced on that date to one year in prison.  The “earliest release date” and the Home Detention Curfew Date (HDC) were stated to be 31 October 2009 and 29 January 2010 respectively. 

 

4. On 10 August 2009 the authority decided that the claimant was not entitled to housing benefit from 3 August 2009, the Monday after the change of circumstances.  It also decided that there was a recoverable overpayment of £157.40 for the period 3 August 2009 to 16 August 2009. 

 

5. On 17 September 2009 the authority received a further HCTB7 notice from the prison where the claimant was detained, dated 16 September 2009.  It gave the same details for the reception date, the conviction date and the sentence date as in the previous form.  It also confirmed the term of imprisonment as one year.  However, unlike the previous form, it stated the earliest release date as 29 January 2010 and the HDC date was stated to be 31 October 2009 (i.e. these two dates had been reversed in the second form). 

 

6. The claimant left custody on Monday 2 November 2009, and was awarded income‑support from 3 November 2009 and HB and CTB from 9 November 2009.

 

7. On 6 November 2009 the claimant applied for her HB and CTB claim to be backdated to 31 July 2009, on the grounds that she was in custody from 31 July 2009 to 31 October 2009.  She provided a “Release Dates Notification Slip” which gave her conditional release date as 29 January 2010 and the HDC date as 31 October 2009 (not 16 September 2009 as stated in the authority’s submission).

 

8. On 13 November 2009 the authority wrote to the claimant, initially to her prison address although by that time she had been released, advising that the payment of HB and CTB could not be backdated as she had not shown good cause for the delay in submitting her claim.  On 9 December 2009 the decision was sent to the correct address and the claimant appealed by e‑mail on 4 January 2010.  The authority reconsidered its decision and accepted that the claimant did not need to establish good cause for the delay in claiming, as she had in fact made a timeous claim in July/August 2009.

 

9. However the authority still refused to award benefit to the claimant as it decided that under regulation 7(13) of the Housing Benefit Regulations 2006, the claimant could not be treated as continuing to occupy her home whilst temporarily absent as she had been absent from her home for slightly more than 13 weeks, stating :

 

“Also, looking at the period of your sentence (one year), the earliest date you were eligible for the Home Detention Curfew (31 October 2009) and the conditional release date of 29 January 2010, I find that it was unlikely from the start of your absence that your absence would be 13 weeks or less  Even if it was likely you would be released on Saturday 31 October 2009 your absence would have been 13 weeks and one day.”

 

The appeal proceeded.

 

10. The tribunal was held on 28 April 2010, the claimant being present.  The tribunal dismissed her appeal because it accepted that she had been absent from her home for slightly more than 13 weeks. Through her representatives, the Camden Law Centre, the claimant sought permission to appeal on the grounds that:

 

“ 6. The Tribunal has erred in law by treating the fact that the appellant was, in the event, absent from her home for more than thirteen weeks as determinative of the case.  In fact, the effect of reg 7(13) is different.  It permits a claimant to qualify for HB for up to thirteen weeks from the first day of absence, provided that, for each day, all the conditions set out in sub-paras (a) to (c) are fulfilled, including the requirement that ‘the period of absence is unlikely to exceed 13 weeks’.  So if, when the claimant leaves the property, the period of absence is unlikely to exceed thirteen weeks but in the event the claimant is away for longer, the claimant may qualify for HB up to the date when it could not longer be said that the period of absence was unlikely to exceed thirteen weeks:  see CH/1237/2004 para 15 and the notes in CPAG’s Housing Benefit and Council Tax Benefit Legislation (22^nd edn) p243.

 

7. The question for consideration, therefore, is whether, at the time that the appellant was sentenced, the ‘absence was unlikely to exceed 13 weeks’.  For most of the period of time that the appellant was serving her sentence, it was to be expected that she would be released on October 31^st, which was thirteen weeks and one day after July 31^st.  So the issue is whether both July 31^st (when she presumably left the flat in the morning to go to court) and October 31^st (when she would have presumably returned to the flat if she had in fact been released on that date) count in the computation of the thirteen weeks under sub‑para (c). 

 

8. On the proper construction of reg 7(13), neither date is included in the calculation of the thirteen week period, for the following reasons. 

 

(1) Generally, in computing periods of time for legal purposes, no account is taken of fractions of a day:  Halsbury’s Laws of England (5^th edn) vol 97 para 345.

 

(2) The question, therefore, is whether the part days on July 31st and October 31^st are included or excluded.  This is to be determined with regard ‘to the context and for the purposes for which the computation has to be made’:  para 329. 

 

(3) As a matter of common sense, a person is not absent from a property for a particular day unless he is not within the property at any point during the day.  People will usually leave a property at some point in a particular day to go elsewhere, but one would not speak of them being absent from the property on that day.

 

(4) This impression is reinforced by para A3.460 of the Housing Benefit Guidance Manual which suggests that a return to the property for twenty-four hours may break a period of temporary absence.  If someone returned at noon and left at noon on the following day, it is implicit in that guidance that a part‑day during which the claimant spends some time in occupation can be ignored.

 

(5) The decision in CSH/499/2006 is not authority against this proposition.  Although the Commissioner held that the “ ‘the first day of that absence from the home’ is, as a matter of fact” the date on which the claimant was imprisoned, it does not appear that the issue was argued before him, since the point at issue in the case was whether a prisoner who was deemed to occupy his home under what is now reg 7(16)(b) while he was on remand had to be treated a being in occupation for that period in considering whether he could take advantage of reg 7(13) in relation to a subsequent period after he was sentenced.  The Commissioner held that since he was not in fact in occupation prior to sentence, the period prior to that time counted as a period of absence for the purposes of reg 7(13):  see para 10 of the decision.

 

9. In the first alternative, even if ‘the first day of that absence from the home’ in the appellant’s case is July 31^st 2009, it does not follow that the last day of that absence is October 31^st 2009.

 

10. In the second alternative, while the words ‘13 weeks beginning from the first day of that absence from the home’ qualify the time from which deemed occupation begins, they do not qualify sub‑para (c), so that even if the thirteen weeks of deemed entitlement commences on July 31^st, the period of expected absence does not start until August 1^st.”

 

11. A tribunal judge gave permission to appeal on the ground that the case should be considered by the Upper Tribunal. 

 

12. The Secretary of State then accepted an invitation to be a party to this appeal.  He has confined his submission to addressing the calculation of time limits for the period of the claimant's detention in legal custody.  He submits that it is the calculation of the period spent in prison by the claimant that is relevant and the effect of the award should be considered only once that period is established.  Regulation 17(13)(c) refers to the period of the succeeding 13 weeks as “beginning from the first day of that absence from the home.”  He adds:

 

“ 6. In this matter I would refer to Commissioners decision CIS/550/93.  In that decision the Commissioner considered the rules as to the reckoning of periods of time that are set out in paragraph 26 of volume 37 of Halsbury’s ‘Laws of England’.  This says that, where a period of time after or from a specified date is prescribed as the period within which a specified act is to be done, the day of that date is to be excluded in reckoning that period, and the act is to be done on or before the last day of that period.  On the other hand, where the act is expressly required by rule or order to be done within a period beginning on a specified date, the period begins on that date and the act must be done on or before the last day of the period. 

 

7. The appellant[’s] representative also refers to ‘Halsbury’s Laws of England’ and argues that parts of a day should be excluded.  I submit however that the absence in this [case] began on the day that she was imprisoned and was, in effect removed from the home.  I further submit that under the analysis in ‘Halsbury’ in paragraph 6 above, that day began on 31/07/2009. 

 

8. I further submit that, as a result any period would, as suggested by the appellant’s representative end on the day of release, that being the day when the claimant was in effect, free to return to her home.  I submit however that the day in question was not 31/10/2009 (the HDC) but was in fact 02/11/2009, that being the date that she was actually released from prison.  I submit in this matter that the facts in this case is that the claimant was sentenced to 1 year in prison on 31/07/2009 and that detention or sentence can only be deemed to have ended either at the end of the sentence passed (30/07/2010) or at the point that the claimant was actually released for detention under licence or in this case under an HDC.  I submit that notwithstanding the delay following the HDC eligibility date the claimant clearly continued to be detained in custody until 02/11/2009. 

 

9. In this matter I would refer to section 246 of the Criminal Justice Act 2003, which provides;

 

‘Power to release prisoners on licence before required to do so

 

(1) Subject to subsections (2) to (4), the Secretary of State may –

 

(a) release on licence under this section a fixed‑term prisoner, other than an intermittent custody prisoner, at any time during the period of 135 days ending with the day on which the prisoner will have served the requisite custodial period.’

 

I submit therefore that the date of eligibility for release on licence (HDC) is not a date where automatic release occurs but is in fact a date where a claimant becomes eligible to be considered for release at any period thereafter.  I submit therefore that the release took effect therefore on 02/11/2009 and the claimant was actually detained for the purpose of regulation 7(13) until that date and that, as a result the 13 week period was in fact exceeded as a result.”

 

He does not address the claimant's stated expectation of release on 31 October 2009 as being a basis for her entitlement to HB and CTB until such time as that date was no longer the likely date of release.

 

13. In response, the authority submits that the period of absence was always likely to exceed 13 weeks because of the effect of paragraph 3.2.4 of Prison Service Order No. 6700 (which sets out the rules for the operation of the Home Detention Curfew Scheme introduced following the Crime and Disorder Act 1998.  This states:

 

“Prisoners must not be released on Home Detention Curfew before they have served the requisite period.  Where a prisoner’s HDC eligibility date falls on a Saturday or Sunday, therefore, the prisoner must not be released on HDC until the Monday after the weekend.  The prisoner must not be released on the preceding Friday.  Similarly prisoners due to be released on a bank holiday must not be released until the day following.”

 

14. On that basis the authority submits that it was never to be expected that the claimant would in fact be released on 31 October 2009 but that she would be released on Monday 2 November 2009.

 

15. The authority submits that the length of an expected period of absence is an objective test, not determined by the beliefs of the appellant.  It accepts that the earliest possible date of release should be taken as the date on which the claimant was likely to return home.  Despite the fact that a release on this Scheme is subject to a risk assessment, it was more likely than not that the risk assessment would not be a bar to release, given the “Key Points in the Prison Service Order”.

 

16. It is then submitted that if the Upper Tribunal accepts that the earliest date the claimant could have returned home was Monday 2 November 2009 the appeal can be determined without consideration of whether either the day of leaving home or the day of returning home must be included in the computation of the 13 weeks.  However, if it is necessary to consider such a matter, the authority considers that the day of leaving home should be included in the periods of absence but not the date of return, citing in support the decision in CSH/499/2006 which decision specifically referred to regulation 5(8) of the Housing Benefit Regulations 1987, the equivalent of the present regulation 7(13).  The decision has been followed in CH/2638/2006 and CH/1237/2004.  The submission adds:

 

“ 12. It is submitted that there is little to be gained from reference to the general rule in Halsbury’s Laws of England (5^th edition) vol 97 para 345.  Where, as in this case, a statutory instrument makes specific provision for the day on which a period is to begin, a decision is to be made in accordance with the specific provision rather than a general rule.  Moreover, the provision is in no way at variance with the general rule.  It is in line with the general rule stated in paragraph 345 that in cases in which the day of the date of an instrument of lease is included in the term it is immaterial that the tenant’s enjoyment cannot begin with the beginning of the day.

 

13. It is submitted that the second alternative submitted in paragraph 10 of the application for leave to appeal is an incorrect interpretation of the relevant paragraph (paragraph 13 of regulation 7).  The paragraph consists of one sentence with three conditions.  It refers initially to ‘a period’ (indefinite article) and then to ‘the period’ (definite article).  ‘The period’ is referring back to ‘a period’ identified earlier in the sentence.”

 

17. Also, the authority compares a different provision in other regulations made for the computation of a period of a claimant's absence from home.  Regulation 8(3)(b) of the Council Tax Benefit Regulations 2006 refers to a period of absence not exceeding 13 weeks “beginning with the first whole day of absence from the dwelling”, which is different from the wording in regulation 7(13) of the Housing Benefit Regulations.

 

18. The authority submits that the tribunal’s reasons may have been inadequate in not making clear that the issue was not whether the claimant had actually been absent for more than 13 weeks but whether the period of absence was likely to exceed 13 weeks, a distinction which the authority had made plain in its letter of reconsideration to the claimant and in its submission to the tribunal  Although this was an error, as was identified in paragraph 6 in the claimant's application for permission to appeal, it was not material to the eventual outcome.

 

19. Further, although paragraph 9 of the statement of reasons concludes:  “… she had in fact been away from her home for more than 13 weeks albeit by one day”, this was factually incorrect; the absence extended for more than one day over the 13 weeks.  The error might have arisen from the authority’s submission to the tribunal.  – but that submission was conditional, namely:  “even if it was determined that it was likely that [the claimant] would return home on Saturday 31/10/09 her absence would still have exceeded 13 weeks by one day.”

 

20. In my judgment the authority’s submission is correct.  The fact that the claimant herself expected to be released on 31 October 2009, based on the information given to her does not assist her.  In some circumstances it will be appropriate to take into account a claimant's own expectations, or they may even be determinative, but this is not one of them. 

In CH/2638/2008 Mr Commissioner Levenson, as he then was, said:

 

“18. The first date of absence was 16^th June 2005 (see CSH/0499/2006). Was the absence likely to exceed 13 weeks? I agree with the conclusions of the Deputy Commissioner in CH/1237/2004 (which has also been approved by Commissioners in other decisions) to the effect that (in the case before me) the period of likely absence has to be calculated from the date the claimant left the house, that if at any point it becomes clear that an absence not originally expected to exceed 13 weeks is in fact likely to exceed 13 weeks, an award may be superseded for change of circumstances, and that the test of likelihood is objective and the claimant’s own view is relevant but not determinative. The tribunal in the present case erred in law in treating the claimant’s own prediction of his release date as determinative.”

 

It is very unfortunate that the claimant was given an HDC date which fell on a Saturday, and this could surely have been avoided by checking before the issue of the notice, as it must be a not infrequent event.  Nonetheless, given the mandatory wording of paragraph 3.2.4 of the Prison Service Order No 6700, there was never any possibility that the claimant would be released on that day.  This is not a situation where the expectation at the outset was that the claimant would return to her home within the 13 week period, and that she would thus have had entitlement until it was known that her absence would exceed that period.  Inevitably, therefore, her absence from home was always likely to exceed 13 weeks.  

 

22. Had it been necessary to do so to decide the matter, I should have rejected the submission on behalf of the claimant as to the calculation of the start of the period of absence.  Notwithstanding the submission on behalf of the claimant regarding the decision in CSH/499/2006 Mr Commissioner May as he then was, held that:

 

“10. For the purposes of the new claim which has been made, the calculation of temporary absence is dependent on the application of regulation 5(8).  For the purpose of that paragraph of the regulations “the first day of that absence from the home” is as a matter of fact, 7 March 2005 [the date the claimant in that case was remanded into custody]”

 

That appeal was decided on regulation 5(8) of the Housing Benefit (General) Regulations 1987, which is in the same wording as regulation 7(13) of the 2006 Regulations and, as stated, it has been followed in Commissioners’ decisions CH/2638/2006 and CH/1237/2004, with which I respectfully agree.

 

23. The authority has drawn attention to the variation between the equivalent provisions for HB and CTB in the legislation.  The wording of regulation 4C(3)(c) of the Council Tax Benefit (General) Regulations 1992 is “a period not exceeding 13 weeks beginning from the first day of absence from the home” and regulation 8(3)(b) of the Council Tax Benefit Regulations 2006 refers to “a period of absence not exceeding 13 weeks beginning with the first whole day of absence from the dwelling”.

 

24. The equivalent wording of regulation 5(8) of the Housing Benefit (General) Regulations 1987 is “a period not exceeding 13 weeks beginning from the first day of that absence from home” and regulation 7(13) of the Housing Benefit Regulations 2006 refers to “a period not exceeding 13 weeks beginning from the first day of that absence from the home”  (emphasis added). 

 

25. Both the HB and the CTB Regulations were amended in 2006 and must have been the subject of scrutiny at the same time.  Had there been any intention to make the period of absence affected by the HB Regulations to run from the beginning of the first whole day of absence, then the draftsman would have surely made the necessary amendment.  It may be that the wording differs because HB is a weekly benefit and CTB is a daily benefit, but nonetheless the HB legislation does not contain the same wording as the CTB regulations do. In my view the difference is telling and supports the view that the day a claimant leaves his or her home is to be included.  Conversely, the day of return must then be excluded.  In the event, in this case the claimant's absence exceeded 13 weeks, however the calculation was made.

 

26. Although the tribunal did make an error of law, as identified by both the claimant's counsel and the authority in not considering whether the claimant's period of absence was likely to exceed 13 weeks, this does not amount to a material error of law in the decision, which could only be against her.

 

27.  I make this decision with some regret, recognising that the claimant has suffered from the capriciousness of the calendar when such calculations are made, in circumstances where it would have been hoped that the claimant might be able to look to benefit to help her to “get back on her feet”.

 

28. For the reasons given, the claimant's appeal cannot succeed and is dismissed

 

 

 

 

(Signed on the original) E A Jupp

Judge of the Upper Tribunal

 

(Dated) 8 November 2011