Hi,

has anyone ready CH 3801 2004 yet? (if not it can be accessed at http://www.bailii.org/ew/cases/EWCA/Civ/2006/882.html). The question was about how to treat a claim where the claimant has a NINO, but the partner doesn't. The commissioners decision isn't particularly clear in terms of answering the question - does anyone have any thoughts on this?

My guidance is stating that where the partner has no recourse to public funds, HB can still be paid, but no applicable amount should be given for the customer without a NINO / recourse to public funds.

Is this correct?

Any comments, views or similar cases would be grately appreciated.

In short, CH/3801/2004 has been overturned.

Provision of NINOs is compulsory for both claimants AND partners.

The Court of Appeal upheld the Secretary of State's appeal against Commissioner Levenson's decision in CH/3801/2004.

See yesterday's rightsnet news story -

Need for both members of a couple to supply a national insurance number when claiming benefit: New Court of Appeal judgment


The full judgment itself, Secretary of State for Work and Pensions v Wilson (2006), is also available here.

My understanding is that the CH/3801/2004 has been overturned by C5/2005/2203 - but am not sure that it is saying that the provision of NINOs is compulsory.

Paras 25 onwards get to the crux.

The Court of Appeal decision (link posted above) found that both the clmt and partner are "...required to satisfy the condition in section 1(1B) of the SSAA" (para 36). I don't see any way in which this can be interpreted as anything other than a finding that it is compulsory for the condition to be satisfied.

Regards

I agree with Kevin. A summary of the CA's decision can be found on the Incorporated Council of Law Reports website, via the following link.

Secretary of State for Work and Pensions v Wilson <2006> EWCA Civ 882

And, yes the applicable amount is assessed at the single person’s rate. And, very harshly, the resources of the claimant’s partner are also taken into account.

Try this link. I'll master this hyperlink thingy one day. Honest!

http://www.lawreports.co.uk/WLRD/2006/CACIV/jun1.4.htm

Sorry. I'm a little confused. Is this decision saying that the applicable amount is not increased where a partner has 'no recourse to public funds'. I thought there was no provision in the HB regs to do this.

Yes, you are right. The single person's allowance only applies to IS/JSA. For HB/CTB the couple rate is applied. My mistake.

yup the couple rate thing is the problem in my view as, contrary to what the CA seem to be saying it can create an additional recourse to funds.

I think on the facts of the CA case the claimant was on IS or iJSA in any event- in those circumstances there could be no additional recourse in any event as he would still get full HB.

However, what happens when someone from a mixed status couple such as this has say income of £80 per week and an applicable amount of only the £56.20? The claim for HB is based on the higher applicable amount due to the fact the partner is there.... so the partner's presence does mean that more public funds are given.

I think the immigration rules mean it has to be seen in that way.

So, HB claimants who have more income than the applicable amount for a single person are one of the few people who can have additional recourse and where we need to check with immigration lawyers before advising a claim.

Martin.

I agree with Martin that this is very worrying. I think we need some clarification from Immigration Nationality Directorate or Home Office (or someone!) about what the precise consequences will be of a mixed status couple claim increasing HB in these case. Otherwise people are forced to choose between eviction and not having leave to remain extended.
Can anyone help?

From the JCWI handbook - "Home Office has stated that "if a person has (through no fault of his or her own) had to have strictly temporary assistance from public funds, he should not be refused on this basis" (Immigration Directorate Instructions Ch 8, s1, annex F, para 8)"

The relevant section of the IDI is here:

http://www.ind.homeoffice.gov.uk/documents/idischapter8annexes/section1/annexf.pdf?view=Binary

It also states that leave should only be curtailed if there is clear evidence of "persistent recourse to public funds".

We have certainly dealt with people who had no trouble getting ILR despite their partners having received a small amount of additional HB. The position seems to be however that any receipt of public funds could affect the immigration position. The only safe advice is probably to tell every claimant to get specialist immigration advice.