Long awaited court case

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  • #34851
    Anonymous
    Guest

    http://www.bailii.org/ew/cases/EWCA/Civ/2006/882.html

    Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882 (29 June 2006)

    #97937
    Anonymous
    Guest

    Oh…
    So now we can have clt with a single person applicable amount but partner’s income/capital aggregated with his. Some mistake surely.
    It gets worse

    #97938
    Anonymous
    Guest

    You thinking of paras 34 and 40?

    Para 34:

    “I should also mention an additional point touched upon in argument, which was that Mrs Wilson’s inclusion in the calculations under the income support regime or the housing benefit regime would not in practice have affected the outcome: because she was a “person from abroad” the applicable amount attributable to her would have been nil. This appeared to be common ground and we were not taken to the relevant statutory provisions.”

    Doh! Well if you had been taken to the relevant statutory provisions, m’lud, you would have found that they are in the IS, JSA and Pension Credit Regs and they don’t affect HB. Common ground between counsel for both sides? Muppets.

    Treat this as very bad obiter and ignore it. The correct assessment of the applicable amount always includes the partner for HB and CTB.

    Am I being too harsh? I’ll rephrase. Assume that para 34 is in the context of an IS case, where the only strage at which the applicable amount is calculated is for the IS claim and it is true that there is no allowance for the partner at that stage. But in a “standard” HB case that’s not the way it is, and if counsel thought it is they were wrong.

    This case should only be read for its pronouncement on the central point at issue: NINOs.

    #97939
    Anonymous
    Guest

    yes, we now have an answer on NINO issue, but para 40 worries me, in that although in Income Support (ie max HB) cases there is no effect on immigration status by a claim for HB including the “no public funds” partner, claims including such a partner where HB is partial will breach the conditions. If he is right that HB claim will always be ” in respect of ” the partner, what should couples in this situation do? Any ideas? 🙁

    #97940
    Martin Giles
    Participant

    So does this mean that in cases where the applicant is a UK citizen but has a partner who is a person from abroad subject to immigration control, with no recourse to public funds they should still be included in the Housing Benefit calculation, i.e treat them as a couple and not the applicant as a single person ? Confused

    #97941
    David
    Participant

    Martin
    That’s always been the case. See GM 7.471

    Earlier threads have discussed the impact (or otherwise) of CH/3801/2004 where that a partner with no recourse to public funds ‘was not a person for whom benefit was being claimed’ (and therefore did not have to apply for a NINO).

    #52107
    peterdelamothe
    Keymaster

    My view is that this decision correctly and properly returns the situation to the previous policy intention i.e.

    a) both claimant annd partner are included in the claim and the appropriate applicable amounts awarded etc.
    b) both must supply a NINO or demonstrate that an application for one has been made or will be made shortly

    I agree that para 34 is confused; I think the point was that a partner is in practice irrelevant for a person in receipt of a passported benefit for HB (although what about CTB and discounts etc.) and I see no real demons here. The barrister who advised DWP sat on Review Boards in this borough for many years so I am sure she had a good grasp of her brief.

    One point though – DWP accepted that applying for a NINO would not impact immigration status but that is not the same as applying for a benefit is it?

    #52108
    Anonymous
    Guest

    exactly- and thats my concern. the decision confirms that the HB applicable amount isn’t “divisible” for a couple, but that leaves a couple in this situation in a dilemma. If “can have recourse to public funds” (eg UK citizen applies), he has to include partner, who then is in breach of their public funds restriction and risks deportation, or at a minimum having extension to remain refused. He cannot claim as a single person. So the alternative, to protect immigration status, is not to claim at all.
    Previously some L.A.’s have got round this by advising couples to state the partner on the claim form but ask that they not be included in the applicable amoutn. This was probably wrong before, but now this has confirmed it can’t happen.
    or can it? its important because these are not isolated cases- it often happens where a spouse arrives on a limited leave entry status which will have a public funds restriction attached, usually for 2 years. Are people expected to go without HB for 2 years? Or ensure they are full HB recipients by not working? Surely this is against government intentions.
    ANY SUGGESTIONS GRATEFULLY RECEIVED.

    #97942
    Jan Canfield
    Participant

    We have a lady claimant who is on income support and her partner has no recourse to public funds. He is working and earns a good wage.
    With the claimant on a passported benefit we have to ignore the income of the partner.
    Or do we…?

    #52110
    Anonymous
    Guest

    sorry just re-read my reply and realised it makes no sense. should read “if “person who can claim public funds” (eg UK citizen) applies…..

    latest query interesting. presumably DWP already agreed to ignore income and circs of partner to ward I.S. Seems odd- surely “in respect of” rules apply here too? or not?

    #97943
    Anonymous
    Guest

    sorry just re-read my reply and realised it makes no sense. should read “if “person who can claim public funds” (eg UK citizen) applies…..

    latest query interesting. presumably DWP already agreed to ignore income and circs of partner to ward I.S. Seems odd- surely “in respect of” rules apply here too? or not?

    #52112
    Anonymous
    Guest

    The local DWP office has definitely got that last one wrong Jan. They are a couple, it’s just that their applicable amount is set under the “special cases” rules and the amount of it is the same as she would get as a single person. The legal reference for this is in paragraph 16A of Schedule 7 to the Income Support (General) Regulations 1987 (applicable amounts in special cases). Paragraph 16A applies where you have “a claimant who is the partner of a person subject to immigration control.” The applicable amount takes no account of the partner in such cases.

    In all other respects the IS claim is a normal couple’s claim. In this particular example, they shouldn’t qualify for IS on any of three grounds:

    – the partner’s income is too high
    – the partner works in excess of 24 hours
    – as a member of a couple rather than a single person, the claimant is less likely to satisfy the IS threshold conditions (lone parent, disabled, carer etc): they might well have mistaken her for a lone parent.

    I would suspend and query it with DWP.

    Once again for the avoidance of doubt, the HB and CTB schemes do not include any equivalent to IS Sched 7.16A – there is no provision to reduce the HB/CTB applicable amount in these cases and don’t let paras 34 & 40 of the Wilson judgment give you the opposite impression – the lead judge makes a point of saying that he wasn’t taken to the relevant statutory provisions, so as far as the HB/CTB applicable amount goes those remarks are either off-the-cuff obiter or even [i:8e61aa6aa2]per incuriam[/i:8e61aa6aa2].

    #97944
    Anonymous
    Guest

    I’d still like to know what a couple (one able to recourse public funds, the other not) should DO re applying for HB. (where HB is partial)
    If they apply- has to be as a couple- = breach of public funds status = could lose right to extend leave to remain.
    If they don’t = rent not covered = get evicted!
    ANY IDEAS PLEASE???????????????????? 😕

    #97945
    peterdelamothe
    Keymaster

    Glenys – at the end of the day it is up to them. They have a choice – claim HB and possibly breach entry requirements or not and get into arrears. Its really that simple. The fact is that it is usually the position that the partner is an “illegal” who is not supposed to be in the UK let alone claiming benefits; the political debate or the HR issues about this area is something I dont need to rehearse.

    The reality is that the law is incredibly confused and complex. Every day I get a PFA case of extraordinary complexity – couples with multiple applications for asylum, IS awarded for a person for one and then withdrawn, sponsors who turn out to be fake, minors who have UK passports and are being made liable for the rent, temporary admission with limited immunity. I am sure this is common in all the big mets. As Peter Barker points out, the Court of Appeal were clearly confused on at least one point. If they are, what chance do the rest of us have?

    One positive note – I notice that Peter Barker is providing training on this area in September so hopefully he will have lots of answers by then!!

    #52115
    Anonymous
    Guest

    I am finding this one hard to nail. There was an item in a CPAG bulletin about couples with different immigration statuses:

    [url]http://www.cpag.org.uk/cro/wrb/wrb186/public-funds.htm#couples[/url]

    On the face if it, that is reassuring. Unfortunately, I think it’s wrong. The people referred to in s115(3) & (4) are the ECSMA lot and others like them – claimants who are subject to immigration control but exempt from the benefit exclusion. That doesn’t really tell us a great deal about claimants with overseas partners.

    From what I have been able to find about the immigration rules, paragraph 6A says you are OK if your partner claims benefit and doesn’t receive an increase on your behalf. What I haven’t tracked down yet is an unequivocal statement that you are in breach of immigration rules if your partner receives an increased amount of benefit by virtue of your presence. As we have seen from the Wilson case, the fact that such a thing can happen is perhaps not widely understood.

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