Letter from council refusing HB as single person with spouse

[Siren]

Subj: RE: HB claim where applicants wife has spouse visa with "no recourse to publ...
 
Dear Cllr M

Thank you for the attached query.

As Simon quite rightly states a ‘person will be regarded as having recourse to public funds if someone else’s benefit is increased because of their presence’.

For Income Support, income-based Jobseeker’s Allowance and income-based Employment & Support allowance, when one member of a couple is a ‘person subject to immigration control’ there is a modified applicable amount (what the law says you need to live on) which makes it impossible for the claimant to receive more benefit: at most the partner’s presence is neutral or if they have any income or capital or if they work full-time they may reduce or cancel benefit entitlement.

Unfortunately, Housing & Council Tax Benefit legislation does not have these modified applicable amounts, so a partner who is a ‘person subject to immigration control’ can have an advantageous effect on the means test and, in the case of Council Tax benefit, the loss of the Council Tax single person discount can technically increase the amount of benefit paid. I understand that there has been a case of someone being refused Indefinite Leave to Remain because of this very fact.

The advice given by the Child Poverty Action Group is ‘If the amount of Housing & Council Tax Benefit payable is more than it would have been had the family member(s) not been included in the claim, no claim should be made’

It is possible that some Local Authorities are prepared to act outside the law and assess such claimants as ‘single people’, however, I do not know if this is common practice. However, as stated above, there is no modification of Housing & Council Tax Benefit legislation to allow the Authority to assess Mr Nattrass as a single claimant and this is also reflected in Paragraph 4.218 of The Housing and Council Tax Guidance Manual that can be found on www.dwp.gov.uk.

Even if Simon were allowed to claim as a single person, declaring his own and his Wife’s income on the claim, it is possible,  because his Council Tax Liability will be that of a couple rather than a single person with a 25% discount, that he could inadvertently increase his Council Tax Benefit entitlement as a result of his Wife’s presence. Note I have said may because it would depend on his actual entitlement which I cannot calculate without details of his income, capital and Council Tax Liability.

I think in the circumstances you are right to suggest Simon contacts his MP, since it would appear that a change in the law is the only remedy for the current situation as regards his Housing and Council Tax Benefit entitlement/recourse to public funds.

Hope this is of some assistance, please do not hesitate to contact me if you have any queries.

Regards



Karen O
Welfare Advice Services Manager






Hi Councillor xyz,




Subject: Housing benefit claim where applicants wife has spouse visa with "no recourse to public funds".




Further to your telephone chat, I would be grateful if you could help me with this issue.




My local council are insisting according to their DWP Housing Benefit guidelines (for partners of applicants on a spouse visa with no recourse to public funds) that I, the sponsoring UK national, am required to submit my housing benefit claim with the name and details of both my wife and I fully included on the HB form just as would be the case for a married couple with no immigration restrictions.   




However, this would result in me receiving an increase in Housing Benefit payments which would mean my wife would be in breach of her "no recourse to public funds" visa restriction, as outlined in Border Agency Home office Immigration Law (see relevant sections copied below). According to Border Agency guidelines, this would result in the denial of my wife's residency application 2 years down the line at the end of her spouse visa probationary period.




I have copied the relevant section from the above link showing Housing benefit and Council Tax Benefit listed as Public Funds (my highlight in bold):

"public funds" means

(b) attendance allowance, severe disablement allowance, carer's allowance and disability living allowance under Part III of the Social Security Contribution and Benefits Act 1992;, income support, council tax benefit and housing benefit under Part VII of that Act; a social fund payment under Part VIII of that Act; child benefit under Part IX of that Act; income based jobseeker's allowance under the Jobseekers Act 1995, income related allowance under Part 1 of the Welfare Reform Act 2007 (employment and support allowance) state pension credit under the State Pension Credit Act 2002; or child tax credit and working tax credit under Part 1 of the Tax Credits Act 2002.




Clarification of recourse to public funds is provided in 6A - 6C at the end of the page linked above:

6A. For the purpose of these Rules, a person (P) is not to be regarded as having (or potentially having) recourse to public funds merely because P is (or will be) reliant in whole or in part on public funds provided to P's sponsor unless, as a result of P's presence in the United Kingdom, the sponsor is (or would be) entitled to increased or additional public funds (save where such entitlement to increased or additional public funds is by virtue of P and the sponsor's joint entitlement to benefits under the regulations referred to in paragraph 6B).

6B. Subject to paragraph 6C, a person (P) shall not be regarded as having recourse to public funds if P is entitled to benefits specified 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.

6C. A person (P) making an application from outside the United Kingdom will be regarded as having recourse to public funds where P relies upon the future entitlement to any public funds that would be payable to P or to P's sponsor as a result of P's presence in the United Kingdom, (including those benefits to which P or the sponsor would be entitled as a result of P's presence in the United Kingdom under the regulations referred to in to paragraph 6B)".




The Border Agency also explain the same guidelines in a document "Public Funds" -  which outlines what UK public funds foreign nationals can claim.  

On Page 46 it states:

"Most categories in the Immigration Rules require people to be able to maintain and accommodate themselves without having recourse to public funds. A person should not necessarily be refused leave if their sponsor relies on public funds.

You must check if the applicant has declared on their application form that their sponsor is claiming public funds. You must then check with the relevant issuing authority whether the amount of funds the sponsor receives would increase as a result of the applicant joining them.

Paragraphs 6A-6C of the Immigration Rules explains what the position is when an applicant is not claiming public funds themselves but their sponsor relies on public funds

If a sponsor needs to claim more public funds to support the applicant, you must refuse the application. For example, if the sponsor claims income-based jobseeker’s allowance and this would increase if their dependant was granted leave as their spouse. You must refuse the application under the relevant paragraph of the category under which leave is being sought with reference to paragraph 6A of the rules.

If the sponsor needs to claim more public funds to support the applicant but these are funds that the sponsor and dependant would be jointly entitled to you must not refuse the application. For example, if the increased funds fall under the tax credits regulations, such as Working or Child Tax Credits, then you must not regard the applicant as having accessed public funds."

 


In order to avoid this breach of the "no recourse to public funds" restriction with housing benefit applications, it has been shown several times by others in the same or similar situations up and down the land that the accepted defacto standard here is to apply as a single person while informing the local authority of any income or savings the partner has.  For the sake of securing my future with my wife here in the UK and not undoing the considerable work done to get this far, this is what I would like to do.   Your assistance is greatly appreciated.

http://www.immigrationboards.com/viewto ... d01f96083d

http://www.immigrationboards.com/viewto ... 67b7fe1ed7

http://www.immigrationboards.com/viewtopic.php?t=26916



Many thanks for helping.




Simon

[aknc789]

Hi,

Could you please clarify on following query.

When my wife was not in UK around 5-6 months I was staying single (alone) person in my rented property. I have informed to council, "my wife went to INDIA" Then council applied "single person discount" (25%) on my bill.

Does it comes under Public funds. Does it affect my extension. Please confirm on this.

I am going for extension, do i need to mention as I have claim for Council Tax Benefit. I thought single person discount from council won't fall under public funds. could you please confirm is it right or not.

Please find below link where I got information.

Immigration Rules:
Paragraph 6 of the Immigration Rules (see related link) defines benefits considered as
public funds for the purpose of the Immigration Rules.

The following benefits and forms of support count as public funds:
1. Council tax benefit
2. Council tax reduction

Found above information at link
http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary)

could you please anyone answer for this query
thanks
nc

[Amber]

I'm glad to see this issue is getting parliamentary attention.

[Masquerade]

Has there been any progress on this issue generally speaking.. do we know?

I am making enquiries regarding it with my local council (my partner is in process of applying for fiancée visa and so the issue is pressing) but to be honest (after a month wait for reply) they simply don't seem to get it. I appreciate it is counter-intuitive. But in my case the loss of 25% single person discount would technically increase the amount of council tax support received for the council tax.. although the council tax payable would increase. Housing benefit is not claimed so no issue there.

I am trying to take emergency measure of dropping claim to single person discount.. but again I'm hitting a brick wall.. they simply don't seem to get why someone might drop a discount they're entitled to... let alone investigate if this is technically possible given their processes. I am deeply concerned... lost many a night sleep trying to figure out a solution. It would be grim if entire futures were badly affected by a technicality that one would seek even at a price to avoid.