Membership of a household

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  • #39529
    K Sylvester
    Participant

    Hi,
    This will be quite long winded!!!! so sorry in advance.
    I have a lady who is a British National. She first claimed HB/CTB in 2007 as a single parent of 3 children. Her only income was Tax Credits and Child benefit. The claim was paid on this basis and she was advised to claim IS. On review she had still not claimed IS and had, had a further child and was pregnant again. At this point we asked about her husband. It transpired that the customer had married in Pakistan in 2000 she had remained there for a month with her husband and the returned to the UK. Her husband who has dual Pakistani/American nationality returned to New York were his family have a sucessful taxi business. The husband visits his wife every 6-7 months and stays for 2-3 weeks. The father of the husband regularly sends our customer money for the family. The husband phones or uses skype to contact his wife and children daily. Enquiries with the Border Agency confirmed that he could come to the UK and she has documents to prove she can go to the States, but they like the way things are.
    I decided that the husband was part of our customers household which resulted in a huge HB/CTB overpayment. The customer appealed and the Tribunal upheld our decision that he was a household member and the separate living arrangements were merely for work.
    Then to my horror I received an ETD this week awarding her Income Support. I sent the DWP a copy of the tribunals decision and they have replied stating the IS decision remains unchanged and that I should consider CIS/13805/1996 and CIS/508/92.
    I am still of the opinion that he should be classed as a member of our customers household and want to assess HB/CTB with his earnings, do you agree or disagree or have any caselaw which will help?
    Many thanks Kimberley

    #112411
    walmslm
    Participant

    Hmm not sure …

    #112412
    walmslm
    Participant

    .. what happened here!

    #112413
    walmslm
    Participant

    .. but this is what I meant to post!

    It doesn’t really matter if you include him or not in the household now I don’t think. Provided that the DWP are aware of the full facts of the case, and have made a decision to awarded I/S accordingly taking into account all the facts, then any income the husband may or may not have is fully disregarded for HB purposes.

    The only time I think you can go against an I/S decision is when that decision has been made without the full facts being known, for example you have evidence a customer is working and the DWP are not privy to this information.

    I don’t think you can take the view that I/S has been awarded incorrectly and therefore you are going to ignore it.

    #112414
    Kay_Tade
    Participant

    [quote=K Sylvester]Then to my horror I received an ETD this week awarding her Income Support. I sent the DWP a copy of the tribunals decision and they have replied stating the IS decision remains unchanged and that I should consider CIS/13805/1996 and CIS/508/92.[/quote]

    Agree with Matthew, not much you can do….forget the tribunal decision[This was based on a standard hb/ctb claim]……,the DWP are happy to pay I/S, well aware of the circs, so I would revise.

    0:) Then again you could test the waters and refuse…… >)

    #112415
    K Sylvester
    Participant

    Thanks Matthew,
    I agree with you but the decision I have got is based on case law that isn’t relevant. Also hubby has obtained a NINO????? giving my customers address as his permanent home???
    I love the DWP me!!!

    #112418
    d-stainsby
    Participant

    I fully agree that you cannot look behind the IS decision unless you have evidence that the IS was obtained by fraud and the DWP are not aware of the primary facts. ( R v Housing Benefit Review Board of Penwith DC ex p. Menear (1991) 24 HLR 115 and R v South Ribble Borough Council, ex p. Hamilton (2000) 33 H.L.R. 104.

    Primary facts are the bare facts on the ground,as opposed to secondary facts which can be inferred from the primary facts. Differences in interpretation of secondary facts are not grounds for revision or supersession [R(S)4/86]

    There have been a number of decisions since Hamilton which underline its limitations and emphasise the point that in general LA’s cannot look behind the IS decision [see for example R(H)9/04, (as reviewed and corrected by the Deputy Commissioner) CH/3079/2007, CH/1987/2007, CH/776/2011)

    It is in any case arguable that the husband has never set up a household with the claimant in the UK, and so they cannot be considered to be living together as husband and wife for the purposes of Section 137 of the Contriubtions and Benefits Act [See for example CIS/1305/1996, R1/91(IS)]

    The latter two decisons are not on all fours with the facts here but they illustrate the diffculties.

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