I've had two cases now where person A wants to claim HB/CTB and has recourse to public funds but is married to person B who does not have such recourse, and so they are very frightened of making a claim.

CPAG page 664 has a rather vague statement on the subject: "For HB and CTB you receive benefit at the couple rate, but there may be public funds implications." It is not footnoted.

If you are assessed at the couple rate then as 88 is more than 56 there clearly seem to be public fund implications.

I can't find any legislative help on this like there is so nicely in tax credits, although I have a feeling it will end up with NiNo issuing delays. In one case the LA assessed at single person rate which I think is probably wrong, but right as regards public funds frightenings.

Can anyone point me to the right law or at least some guidance on this? Any help much appreciated.

The public funds issue is not relating to HB/CTB but it relates to the person without recourse to public funds visa conditions

The NINO issue is a seperate matter. The person MUST be given a NINO but the claim should not be delayed pending its issue as the requirement will have been met by providing sufficient evidence for the issue to be made

Sorry if it wasn't clear and thank you for your reply but I know public funds is an immigration and not a benefits issues per se. the trouble is this issue straddles benefits and immigration law and is neither in total.

I'm not confident to say as a benefits adviser what the immigration effects are but I'm also not confident of an immigration adviser knowing about benefits law. I want an expert in both, really.

Long time since I've had one of these, but used to be able to argue that, if the person with recourse would qualify for max HB/CTB as a single person the recourse issue disappears for the partner too; no extra benefit payable as a result of her/his presence in the household.
Not sure whether this still cuts any ice with the Home Office though.

And that's the trouble. If someone qualifies for full HB/CTB single they'd probably qualify for IS and schedule 7 para 16A of the IS regs clearly says in such situations you do not count the non-recourse person in calculating an applicable amount. And if you get 1p of IS you get full HB/CTB and non calc is done.

There's no similar paragraph in schedule 2 of the HB Regs which is why I think CPAG says they are counted as a couple - they ARE a couple. You can't just not put the non-recourse person on the form - that would effectively be fraud.

So the applicable amount for a couple should apply but as it's higher then it is an effective recourse to a public fund.

In this case it would not be a full HB claim so it's not easy.

I would love to get a definitive answer on this one.

from the beginning of march the imm rules were amended to include the following -

'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.'

see http://www.rightsnet.org.uk/cgi-bin/forwardsql/search.cgi?template2=user_details2.htm&output_number=1&news.ID=33161127800

No need to be wary of claiming.

If claim is made (for Hb/Ctb) the decisionmaker decides who is resident and part of claimant's household.

I guess your claimant does not get Income Support or Income Based Jobseekers Allowance; if I considered your claimant's partner to be part of your claimant's household then I would include them when assessing Hb/Ctb, this would mean the applicable amount for a couple would apply.

In any case they should apply; what do they stand to lose?

My take on this is that if the person with recourse qualifies for IS at the single person rate the household is passported onto max HB and CTB - i.e. the full rent, the RO rent or the appropriate local housing allowance category. There is no "couple" or "single" rate here. The person with recourse is clearly getting the money that s/he SPECIFICALLY is entitled to.

I can see that it is different in a non-IS case, in that if you use the couple applicable amount then by a certain tortuous logic it could be said that the partner without recourse is "getting" something. However in practice I have never known this to be a problem.

I'm very grateful for all of the responses to this thread. The answer to the Assessor's question about what a claimant has to lose is quite simple - they could be deported and that's something to be very wary about indeed!

A colleague has just pointed out that with one of my cases where the LA adjudicated as a single claimant which appeared to be legally wrong but sweet as far as immigration issues goes, they may well have applied the lone parent earnings disregard and where on earth does that leave me??? (Answer: nowhere since I've resolved not to look at their decision notice unless I physically have to)

The trouble with 'in practice it's never been a problem' is that you never know when you're going to get the case where it is - and in a non-full HB case the presence of the partner will increase entitlement so something is coming in to the family unit that without the person with no recourse's presence would not be coming in.

Shawn - thank you so much for your posting. I've moved my eyes over all of the letters in those things. I'd be hard-pushed to say I could resolve those letters into words let alone impart some kind of meaning to it all, and I think it's all to do with Tax Credits and their get-out clause really isn't it? Maybe it's actually about pig farming in Patagonia. But I do appreciate it.

I've left it that we will make claims in these cases with full information about the non-funds claimable party and point out their immigration status, but I am very uneasy doing so and, once again, if anyone can find a categoric statement that this is legally okay I would be over the moon to hear it.

i don't think you'll find one unfortunately.

CPAG's immigration and SS handbook is full of cautions, but my reading is that there is not usually a problem with HB unless _additional_ public funds are involved. in non-passport HB cases there might be, because of the 88 instead of 56, but not in all cases, eg income lower than lowest threshold but no IS in payment.
it advises that if spouse is overstayer or without permission to be here to get immigration advice first, and elsewhere,advises people in those categories to get immigration advice before claiming IS even for themselves.

our immigration solicitor recalls only one case where HB was an issue, and is not coming across problems in this area, but as you say, you never know when that one case is going to be yours. how financially desperate the claimant is and weaknesses in the immigration case seem to be factors in their decision whether to claim, and if they are anxious, its probably best to discuss with their immigration adviser.

HB is an in-work benefit as well as an out of work benefit, so the situation could arise where a WTC/low earnings/high rent claimant with person from abroad spouse could qualify for higher rate of HB. Would the HO view this as addition public funds when its part of the work for low pay we'll see you ok deal?

aside: saw a guy this morning, no income no nuthin' - struggled for months to get his £155 fee for discretionary leave to remain - sent postal order to his solicitor on 4/4/05 ( i shudder to think how much that cost)- the day it went up to £325. total despair.

jan

should have said £325!!!!!

in case anyone wonders hiw the 209% increase is justified, the extract from Des Brownes ministerial statement below might help. it also pays for the costs of the appeals service which is a bit of a cheek in some ways, when you think of it. enforcement costs are still to be met by general taxation, but was considered in the fee review.



http://sea.search.msn.co.uk/preview.aspx?&q=IND+home+office

"The fees are part of a wider programme of reform – reflected in the five year strategy - to deliver a self-financing managed migration programme by 2008, which reduces reliance on the public purse, and which supports the modernisation of immigration services.

The fees being announced today will save the UK taxpayer in the region of £170 million in 2005-06. The income raised through the charges will benefit customers and the wider public. It will support ongoing investment in the managed migration system in which the public can have confidence; a system that delivers high quality decisions for applicants and tackles abuses quickly and robustly. Moreover, our customers will continue to see improvements in the service they receive."

ps apologies if rightsnet already reported this