KdeS v London Borough of Camden (HB) [2011] UKUT 457 (AAC)

“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.”

“ 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 .”

“ 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.”

“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.”

“ 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.”

“… 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.”

“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.”

“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]”