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Tax credits & HB, couple with one member having no recourse to public funds. 

dominic3
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Welfare benefits operations manager, DABD(uk), Barking and Dagenham

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Total Posts: 18

Joined: 18 June 2010

Hi all,

We have been advising a couple who have children. One of the couple has no recourse to public funds. They have been affected by the benefits cap up until this point.

The client with no recourse to public funds has been working 18 hours per week. The partner has now started working 8 hours per week.

They have applied and been awarded working tax credits.

- Their working tax credits award includes the couple element - would this be correct based on the fact that one of the couple has no recourse but they have children?

-They have been awarded housing benefit, however this also includes the couple amount? From what I can find out, this should only be the single element so there might be an overpayment but i cannot see anything to confirm this?

Thank you for any help with this.

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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Joined: 12 March 2013

Joint claims for Tax Credits by couples in these cases are protected by para 6B of the Immigration Rules:

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

As for HB, the Immigration Rules make no special provision and nor does the HB scheme itself: in HB there is one claimant who owns the claim and it is he or she alone who is required to satisfy immigration and habitual residence tests.  If the claimant has a partner that partner is aggregated into the HB claim in the normal way.  This gives rise to the possibility that the partner might be regarded as having had recourse to public funds in accordance with para 6A of the Rules:

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).

The bit in bold is the problem.  It is possible for a partner to increase HB entitlement, for example by loading more onto the applicable amount side than the income side, or by bringing a person under 35 out of the scope of the definition of “young individual” so that the eligible rent is not restricted to the shared accommodation LHA.  Some Councils advise claimants in this situation to take independent advice before proceeding with an HB claim, while others just play it with a straight bat seeing their duty as assessing HB quickly and accurately, which is fair enough really.

There is a well-established principle that no-one is obliged to carry on receiving benefit they no longer wish to claim - it can be used to migrate from UC to legacy benefits or vice versa when a claimant calculates that s/he would be better off under a different scheme.  I suppose in principle this could stretch to some of your benefit - “I no longer wish to receive a penny more than I would be entitled to as a single person so as to protect my partner from any suggestion that s/he has increased my reliance on public funds”.  I have never seen that done in practice but I wonder whether it is possible?