IN THE UPPER TRIBUNAL	Case No.  CH/1849/2010
ADMINISTRATIVE APPEALS CHAMBER

Before Judge Nicholas Paines QC

Decision:  The decision of the First-tier Tribunal involved an error of law.  I set it aside and remit the case to a the First-tier Tribunal for re-determination in accordance with my decision.

REASONS FOR DECISION

1.	In February 2008 the claimant was receiving housing benefit and council tax benefit in respect of a flat owned by his local authority.  On 29 February he was remanded in custody and on 13 June 2008 he was sentenced to 9 months’ imprisonment.  The time he had spent in custody on remand was ordered to count towards his sentence, with the result that he was released, in accordance with the legislation on prison sentences, once he had served half the sentence; this was on 14 July 2008.  However, on 17 July he was remanded in custody again and on 31 October 2008 he was sentenced to a further one year’s imprisonment, with the time he had spent in custody on remand being ordered to count towards that sentence.  
2.	He was released again, once he had served half of that sentence, on 15 January 2009.  He appears to have committed a further offence, as a result of which he was arrested on 20 January and on 21 January was recalled to prison to serve the remainder of the one year sentence.  It is not entirely clear whether he was also remanded in custody to be tried for the January offence (it is possible for a person to be remanded in custody even though they are already serving a prison sentence); on 14 May 2009 he was sentenced to 18 months’ imprisonment in respect of that offence.  The new sentence will have started from the date on which it was imposed, irrespective of the fact that the claimant was part-way through an earlier sentence.  It seems that the time he had spent in prison before being sentenced on 14 May was not ordered to count towards the new sentence, since his release date was 11 February 2009, nine months (i.e. half of the 18 month sentence) later.  This is not surprising; time spent serving a sentence for an earlier offence is often not directed to count towards a later sentence, even if the prisoner had also been on remand in custody in respect of the later offence.
3.	It appears that the claimant was released from prison on 11 February 2009,  but was recalled to prison the same day to serve the remainder of the 18 month sentence; his revised sentence end date was either 12 or 13 November 2010.  In June 2009 the local authority obtained an order for possession of the flat.   The claimant complains that he was not notified of any court hearings to do with the flat or his benefit claim and that when the flat was repossessed his belongings were dumped.  
4.	There is no issue about council tax benefit.  The claimant was exempt from it whilst he was in prison.   The issue in the appeal concerns HB.
5.	The claimant’s award of HB was terminated by a decision of the local authority on 16 June 2008, shortly after the first of the prison sentences was imposed.  He claimed again in early July 2008 and HB was awarded with effect from 21 July, shortly after his release from the first prison sentence and second remand in custody.  That award was terminated with effect from 3 November 2008, shortly after the second prison sentence, but later reinstated (the local authority says, in error).  Payment continued until 19 January 2009, when the local authority treated the claim as ‘cancelled’ because the claimant had not replied to letters.  Later, by a decision dated 18 June 2009 (which is the only decision technically under appeal) it was decided that the claimant had no entitlement to HB from 3 November 2008 to 18 January 2009, but that the overpayment was not recoverable.
6.	The claimant appealed against that decision and the appeal came before the First-tier Tribunal on 30 March 2010.  The claimant did not attend.  The tribunal was at some stage uncertain whether the claimant had received notice of the hearing, as it had been sent to his prison address even though he had been due to be released in February 2010.  It is not clear whether this doubt had come to light at the time of the hearing; and it later transpired that the claimant was, as a result of his recall, still in the prison at which the notice had been sent to him.  He denies receiving the notice, but in the circumstances it is hard to understand why he did not.  By a decision of April 2010 the First-tier Tribunal declined to set its decision aside on grounds of his non-attendance, on the basis that the outcome of the appeal had been inevitable.
7.	The tribunal appreciated that only the June 2008 decision was before it, but dealt in the statement of reasons for its decision with the claimant’s benefit entitlement from 29 February 2008, in order to reassure the claimant that the earlier decisions had been correct.  It held, correctly, that the claimant had been entitled to HB (which had been paid) during his periods on remand in custody between February and June and between July and October 2008 but not during the periods after he had been sentenced in June and October 2008.  I explain the law on this below.  However, the tribunal appears to have concluded that the claimant therefore had no HB entitlement after he received the October 2008 sentence.  It did not deal with the position following the claimant’s release on 15 January 2009, recall to prison on 21 January and further sentence on 14 May 2009. 
8.	The claimant sought permission to appeal and in September 2010 Judge Pacey gave permission to appeal on the grounds of the tribunal’s failure to deal with that aspect of the case.  He directed the local authority to make a submission; as a result, the local authority reconsidered the case and decided that the claimant was entitled to HB from 19 to 25 January 2009 as a result of his release on 15 January 2009.  As regards the consequences of the claimant’s recall to prison, the local authority submitted that the claimant was on remand in custody as well as being a serving prisoner, but that he was not entitled to HB.  
9.	Following the receipt of that submission, Mr Registrar James invited the Secretary of State to become a party to the appeal and to make a submission on the HB position of people who are both serving a prison sentence and on remand for a further offence.  The Secretary of State has done so.
The law
10.	By section 130 of the Social Security Contributions and Benefits Act 1992, a person is entitled to HB if, among other things, “he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home”.  The rules about when a person is to be treated, or not treated, as occupying a dwelling as his home are in regulation 7 of the Housing Benefit Regulations 2006.  Paragraph 13 of the regulation says that a person is to be treated as occupying a dwelling as his home if he is temporarily absent from it “for a period not exceeding 13 weeks beginning from the first day of that absence” if three conditions are satisfied: (i) the person intends to return to occupy the dwelling as his home; (ii) the part of the dwelling occupied by him has not been let or sub-let and (iii) “the period of absence is unlikely to exceed 13 weeks”.
11.	Paragraph 13 is, however, subject to paragraph 17.   Paragraph 17 applies to the people listed in paragraph 16, and says that they are to be treated as occupying the dwelling as their home during any period of absence not exceeding 52 (rather than 13) weeks.  Paragraph 16 contains similar conditions to paragraph 13 as regards intention to return to occupy the dwelling, the dwelling not being sub-let and the absence being unlikely to exceed 52 weeks.  Subject to those conditions, it covers a number of categories of people, including a person who is “detained in custody on remand pending trial or … detained pending sentence upon conviction”.   It also applies to people in hospital, on training courses, and some other categories.
12.	Paragraphs 16 and 17 are, self-evidently, more generous than paragraph 13.  A person to whom they apply can be absent for up to 52 weeks without losing their housing benefit, rather than the 13 weeks prescribed under paragraph 13.  It is also clear that, for people mentioned in paragraph 16, the 52-week rule in paragraph 17 applies instead of the 13-week rule in paragraph 13.
13.	The 52-week rule therefore applies to people detained in custody on remand pending trial or detained (after conviction) pending sentence.  Where a remand prisoner is either acquitted or sentenced to a suspended sentence or a community sentence, he will be able to return to his home and, provided his period of absence did not exceed and was not likely to exceed 52 weeks (and other relevant conditions are satisfied) he will have remained entitled to HB throughout.  It was evidently thought unsatisfactory that such a person should lose HB entitlement after the 13 weeks prescribed by paragraph 13; periods of remand in custody often last longer than 13 weeks.
14.	Paragraph 16 does not apply to any other category of prisoner apart from those on remand pending trial or detained after conviction pending sentence.  Thus, where (as in this case) a remand prisoner is convicted and sentenced to an immediate term of imprisonment, paragraph 16 stops applying to him as soon as the sentence is passed; paragraph 13 applies instead.  That means that, whereas during his period on remand the question was whether his absence had exceeded or was likely to exceed 52 weeks, after sentence is passed the question becomes whether his absence has exceeded or is likely to exceed 13 weeks.  It is therefore not uncommon for a person who has retained entitlement to HB whilst on remand to lose his entitlement as soon as he is sentenced (though, obviously, it depends on the length of the sentence).  
The tribunal’s decision
15.	That is what the local authority and the tribunal decided had happened as a result of the claimant’s sentences in June and October 2008.  They found (in the claimant’s favour) that he retained eligibility for HB under the 52-week rule whilst on remand; but by the time each of those sentences was passed, his period of absence from home had already exceeded 13 weeks (the tribunal rightly held that the periods had to be counted “from the first day of that absence” – i.e. from 29 February and from 17 July: see CSH/499/2006).  I agree that the claimant was not entitled to HB in respect of the periods between sentence being passed and his release.
16.	The tribunal did not, however, consider the position following the claimant’s  release on 15 January 2009 and his recall to prison on 20 January.  That was an error of law.  I must set the decision aside because the outcome would have been different if it had considered it: it should have found the claimant entitled to HB for at least the week following his release (as the local authority accepts).
The issue on which the Secretary of State was invited to make submissions
17.	The legal position following the claimant’s recall to prison is less clear, which is the reason why the Secretary of State was invited to become a party.  Both the local authority and the Secretary of State seem to accept that between January and May 2009 the claimant was both under recall to prison (to serve the remainder of the sentence imposed in October 2008) and on remand in custody in respect of the offence he had committed in January 2009.  That is certainly possible (and in my experience likely), but there is nothing in the papers that confirms that he was remanded in custody during that period.  
18.	The e-mail from the Prison Service (page 156), which is relied on by the Secretary of State as showing that the claimant was remanded in custody, does not use the term “remanded in custody” but merely says that he was “in custody”.  Remand on bail is as much a form of remand as remand in custody and it is possible that the claimant was remanded on “technical bail” in respect of the January 2009 office, in the knowledge that he would in fact be in prison serving the remainder of the previous sentence.  If he was remanded in custody, I consider it unlikely that that occurred before his first appearance before a court in respect of the January 2009 offence.
19.	The issue of HB law that arises (assuming that the claimant was simultaneously on remand in custody and serving a sentence) is whether the fact of his being on remand in custody makes the 52-week rule in paragraph 17 applicable although he was simultaneously serving a sentence.  The local authority and the Secretary of State have both submitted that the 13-week rule in paragraph 13 applies.  The Secretary of State distinguishes the situation of people who are simply on remand in custody (and may be released following acquittal or imposition of a non-custodial sentence) from that of a person on remand in custody who is simultaneously serving a sentence and, even if acquitted or not sentenced to immediate custody for the new offence, will not be released until the earlier sentence has been completed.
20.	I can see that the policy behind including remand prisoners in paragraph 16 may be to make the more generous 52-week rule available to, in particular, those of them that are subsequently acquitted; if so, the reason why remand prisoners who are subsequently convicted and sentenced to immediate imprisonment nevertheless benefit from the 52-week rule during the period of their remand may be simply that it is not possible or appropriate to remove their HB entitlement retrospectively following conviction.  I can understand an argument that there is not the same policy imperative for giving the benefit of the 52-week rule to remand prisoners who are simultaneously serving another sentence and will not be released from prison even if acquitted; but my task is simply to decide what the Regulations mean.  I find it impossible to interpret regulation 7(16)(c)(i) in the way the local authority and the Secretary of State contend for: the paragraph says that it applies to a person “detained in custody on remand pending trial or … detained pending sentence upon conviction”; those words apply to a person who has been remanded in custody or detained pending sentence whether or not he is simultaneously serving another sentence.   
21.	I therefore hold that regulation 7(16)(c)(i) applied to the claimant during any period between January and May 2009 during which he was in custody on remand (or, if it applies, pending sentence).  Whether he was entitled to HB during such a period depends (assuming that the other criteria of entitlement are satisfied) on whether his period of absence from his flat, counted from the first day of absence, was “unlikely to exceed 52 weeks or, in exceptional circumstances, … unlikely substantially to exceed that period” (regulation 7(16)(d)).  
Remission to the First-tier Tribunal 
22.	That is not a question that I am in a position to answer.  It is not clear to me whether (and, if so, over what period) the claimant was in custody on remand.  Whilst the claimant’s subsequent conviction and sentence support an argument that the claimant was always likely to be convicted and to receive a sentence of such a length, imposed at such a point in time, as to cause his absence to exceed 52 weeks, I do not consider that it would be right to decide that question of fact without the claimant having an opportunity to be heard.  I therefore remit the case to a differently constituted First-tier Tribunal for re-determination in accordance with the Regulations as I have interpreted them in this decision.  The tribunal need not consider the position prior to 2009.
23.	One final matter that the tribunal should dealt with is this.  The local authority’s letter conceding that the claimant was entitled to HB for one week in January 2009 (page 145) also said that the entitlement would be used to reduce the overpayment “for the same period”.  I can accept that, if the claimant has been paid benefit in respect of the same period, it does to need to be paid again, but the statement that it has been is inconsistent with the letter of 18 June 2009, which said that payment had ended on 18 January 2009.  The new tribunal should investigate whether benefit for the week now conceded to be payable has been paid or not.

Judge Nicholas Paines QC
17 June 2011