i'll try to keep this as brief as i can

a tenant has full immigration status but his wife hasnt been given "leave to remain as partner of a spouse of UK resident)and doesnt have a NiNo, although she applied for immigration status approx 18 months ago(home office confirm to me that claim still being looked at)

he claimed HB but claim was refused as he couldnt provide wifes NiNo or passport (home office still have it)although he tried to explain the problem and why he couldnt provide required details, the claim was cancelled.

the DWP advise me that HB should have issued a DC1 1LA, but they confirm to me that they didnt, not were they required to.

am i right to belive that if tenant's wife has no recourse to benefits then HB could/should have processed the claim for him as a single person?

many thanks

See CH/3801/2004 which held that the fact that a spouse who had no recourse to public funds had no NI number was irrelevant for HB purposes. Because the spouse was excluded from entitlement to benefit she was not a person for whom the claimant was making a claim.

I haven't seen the decision, only a summary in the Journal of Welfare Benefits Law. You should be able to get a copy of the decision from OSSC, or you cpould try Simon Ennals at French & Co in Nottingham who was the claimant's rep.

Thu 08-Sep-05 11:45 PM by shawn

CH/3801/2004 is on the Commissioners website

the case that you suggested seems to pretty much back up what im thinking. ive quoted it a supporting evidence to my argument with HB and im waiting for their response

many thanks

after a four month period of trying to get HB to make a decision on this matter, they have finally agreed to cough up 4 1/2 k HB back to may 03, which will clear my clients rent arrears in full

many thanks for providing the case to help the argument

i shall be pursuing the matter as a complaint as my client has had bailiffs knocking at his door for "unpaid" c. tax and hes had to sit through two eviction hearing which has understandably caused him a great deal of stress. i would have thought the least HB could do would be to send a letter of apolgy to him. actually i wouldnt mind one myself as HB have completely ignored every letter ive written to them over the 4 month period, and have never communicated with me at all over the matter!

I would ask the LA to compensate. I took a similar case to the Ombudsman and the compenstaion amounted to £600 plus court costs.

The housing association used a solicitor at the time for the posession hearings and the costs mounted up to more than £1000

thats my viewpoint as well stainsby and im going for the compensation approach. the poor bloke had bailiffs knocking on his door and genuinely believed he may be evicted, and that must have been very stressful especially as his wife was poregnant through this period. it cant be nice thinking youre going to be evicted with a child on the way


HB's way of apology was to say "we shall take every care to ensure this doesnt happen again" which i think is pretty lame, and given that ive already written to his MP and theyre aware of that, you'd think theyd want to at least appear contrite.
id have thought a "sorry we scared the sh*t out of you by sending the bailiffs round" would be more like it tho highly unlikely i know!

thanks.

when its eventually resolved i'll post it on here

HB couple claims are (potentially) one of the few areas where the partner of a claimant will be having additional recourse to public funds by their partner's claim.

Such claims attract a couple rate of benefit. If the claimant and partner have more cash a week than the single person applicable amount (ie not on IS or JSA usually) then they will be getting more HB as a couple than the claimant would as a single person... additional recourse.

As they are not getting the HB by virtue of regs made under Sec 115 I&A act then they are not covered by the (otherwise helpful) saving in the immigration rules, from 15/03/2005 a new paragraph has been added. This states:
· 6B -
'A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.'


Not a problem for benefits but could be if no recourse to funds is part of the immigration conditions.

A bit ridiculous as there is no other way for the claimant to get only that HB he would get on his own- claimant forced by legislation to either have additional recourse or to not claim at all.

Johnny,

To answer your question directly, NO HB can't process as a single person claim. If a couple claim, then the claim lives or dies by it's status as a claim from a couple. There is no provision in the HB/CTB regs to 'split' a household into those having a NINo and those that don't.

This is another area of joined up thinking from HM Government, where the HB/CTB rules are completely different from the other main means-tested benefits (IS/JSA), where couples are split for Applicable allowance calculations with frivolous and joyous abandonment.

In practice this means that where the claimant has no NINo., the partner can not get HB/CTB. So you have to consider carefully whom should claim, to make sure that the NINo. carrying person applies (it's the same with F/T student cases, you get the non-student partner to claim if there is one).

However, if DC1LA has been completed and the DWP knock it back, and refuse to allocate a NINo., you are in a different area altogether, and HB can not be paid even if the claimant has a NINo. CH/3801/04 will not apply in those situations. This has swings and roundabouts arguments to it, as it depends on the reason the DWP refuse to allocate one (they are obliged to allocate one, if the non-uk national is a partner in a HB claim, so that the claim will not fall foul of S1) but only if the partner attends interview etc. This is another joined up area of government thinking - People with no right to work/recourse to public funds can't get a NINo. But, but put that person in a HB claim as a partner, and behold, the DWP is obliged to give one. Quality thinking joined up thinking again!

Martin,

I am not sure if you are saying that the additional HB that would be awarded as a result of couple status is a de-facto 'additional recourse' but if you were, that is not entirely correct (though I am willing to be corrected). HB is not paid to the partner. In HB there is but one claimant, never two. The money legally belongs to the HB claimant, not their partner. The partner can not demand it as of right, so it cannot be theirs. The immigration status of the partner is simply irrelevant in the decision to award HB/CTB, so long as a NINo. has been allocated, or has been applied for, (though HB would be suspended, with a view to termination if the DWP refuse to award a NINo. - For a valid reason!!!). Does this make sense? I Hope so, if not post back and I'll try and be clearer!!!

Apols for using the forum with this message...but I'm stuffed for other options....

John,

No other means of contacting you at the moment Any chance you can mail me to re-establish contact?

( k e v i n . p r o @ i c 2 4 . n e t )

Rightsnet: If this is not acceptable, I repeat my apology - I would understand if this is deleted.

Regards

HBSpecialist: whether or not claiming HB in the circumstances I described is an additional recourse to funds is technically an immigration and not a benefit law question.

Even if it is additional recourse to funds that has absolutely no bearing on whether the couple are entitled in benefit law to the HB amount in question. The law requires them to be paid it even if the partner's immigration conditions are to have no recourse to funds.

The fact that they have that entitlement in law similarly, in this case, has no bearing on whether it is additional recourse to funds.

"Additional recourse to funds" says nothing about whether the person subject to control actually gets the money or has a legal right to it (which seems to be what you suggest). My understanding is that the question is simply: by that person's presence has there been an additional cost to public funds. The answer in the case I described is yes. They would have got less had the partner not been there.

Because of this, partner's of claimants in the situation I described should seek advice from their immigration lawyer prior to the HB/CTB claim being made.

From the latest HB Direct.
Commissioners’ decision CH/3801/2004 concerned a claim to HB from a man whose partner is subject to immigration
control and whose admittance to the UK was on the proviso she would have no recourse to public funds. The Commissioner
held that the partner was not a person for whom benefit was being claimed, nor did she have to satisfy the National
Insurance Number requirements in Section 1(1B) of the Social Security Administration Act 1992 - the result being the
claimant could continue to receive HB as if he were a single person. This runs contrary to policy and published guidance.
The Court of Appeal has granted the Secretary of State leave to appeal the Commissioner’s decision. Pending the
outcome of this appeal, if you have ‘look-alike’ cases you should consider the staying provisions outlined in paragraphs
C11.939 et seq of the Housing Benefit Guidance Manual.

just to finish this thread off. the council offered and my client accepted £550 to refund his court costs and some compensation on top.
many thanks to everyone who participated in this thread, it all helped me a great deal

johnny