I have a client from Somalia who is resident in the UK having come to the UK in 1991. She has a British Passport. She married in Kenya in 2000 and returned to the UK to give birth to their son and began receiving income support, child tax credit and housing and council tax benefit.
Her husband who is also from Somalia entered the UK in May 2008. I believe he entered the UK illegally as I was informed he had no visa, no passport or any other entrance papers. In September 2007 he filled Form FLR(M) for further leave to remain by married partners, and has heard nothing from the Home Office. His immigration solicitor has in August 2008, chased the matter with the Home Office and is awaiting a response.
My client did not inform the Council's Benefit Service or tax credit that her husband had joined her. She also possibly did not iform income support until the begining of this year.
Her husband is not entitled to benefits and is not able to work as he has "No Recourse to Public Funds.
She has been receiving a single person's allowance of income support/JSA through-out this period.
In January 2008, my client gave birth to her second son and informed income support of the changes in her circumstances and tax credit of the birth of her son. In April 2008 her Income support was stopped and she was advised to apply for JSA as her husband could be looking after the children She applied for JSA and is on this benefit.
In May 2008, my client's husband applied for a National Insurance Number but was refused one as he did not have a passport.
In the meantime DWP informed housing benefit about the fact that my client was no longer in receipt of Income support and In June 2008 Housing Benefit Section asked for details of her husband, his income, status and his NI No. Client could not comply with the NI No and submitted proof that he was refused one.
This resulted in Housing Benefit Section assessing for a Nil award in housing and council tax benefit from May 2007 on the grounds that
a) she failed to inform them of her husband moving in with her in May 2007
b)she failed to provide them with his national insurance number and based their decision on Commissioners decision CH/1231/2004 & the Court of Appeal decision 8 May 2006 of Secretary of State for Work & Pensions and Scott Wilson. However, my client's husband has not refused to get a national insurance number nor is he waiting for the outcome but has already tried unsuccessfully to get a natinal insurance number.. I therefore wonder if there is any case law which would be more appropriate to his case.

My client has appealed the housing benefit decision and has a tribunal hearing on 14 October 2008. I would welcome advice on how to argue her case. I can see that as a last resort one could ask for her husband to be considered as a non-dependant as then his immigration status does not come into question and we could the apply for discretionary housing payments for the shortfall in her benefits.

If the appeal were to be unsuccessful, and short of asking my client's husband to live elsewhere and jeopardise his immigration application, what other sources of income could she apply for to pay her rent and council tax benefit

Wilson does not require the partners N. I. only sufficient identity proof for him to be able to get one.

Also, It can be argued that he has only been refused an N. I. " at this time" as he is still waiting for a home office decision.

Have a look at CIS/0345/2003 Mr Commissioner Jacobs wrote:

"The tribunal will find helpful this passage from the Secretary of State’s written observations to the Commissioner. Those observations were written by an officer from the Adjudication and Constitutional Issues Branch in Leeds. The officer wrote:

‘It is to be hoped that the Secretary of State’s representatives in the claimant’s local social security office will in the meantime reconsider its refusal to provide to the tribunal the evidence on which its refusal of the claimant’s claim under section 1(1B) of the Social Security Act 1998 .

If not, the new tribunal will, in my submission, be at liberty firstly to direct the Secretary of State to produce the evidence in question and secondly, in the event of a refusal to comply with that direction, to consider whether the Secretary of State is thereby seeking to shelter from scrutiny an indefensible decision.”

A refusal of a NINO by the DWP without giving adequate reasons may not be fatal to a claim for benefit if the Tribunal can still find S1(1B) satisifed. Wilson does not preclude this

Never seen CH/1231/2004, you must insist that the LA provide a copy of it in the bundle.

I cannot see how you could argue that the partner is a non dependant either, if he is living as part of her household

Whilst you might still want to insist that the LA provide a copy in the appeal papers bundle, CH/1231/2004 is available in the commissioners decisions on rightsnet area of toolkit.

Here is the direct link to it -

http://www.rightsnet.org.uk/pdfs/CH_1231_2004.doc

Come to think of it I have seen the decision and in my view, given that the claimants appeal was allowed, its more likely to support you rather than the Council