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Forum Home  →  Discussion  →  Work capability issues and ESA  →  Thread

ESA and no recourse to public funds for partner

Ruth Knox
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Vauxhall Law Centre

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We have a Latvian client (self-employed).  He has one child and claims WTC, CTC and Child Benefit. His partner is an Iraqi citizen who has no recourse to public funds.  He has fallen ill.  My understanding is that he can claim income-based ESA and be paid as a single person.  His income will not exceed his Applicable Amount for HB purposes as a single person so he would be entitled to full Housing Benefit as a single person.  Are we right in saying that his partner will not have breached the “No access to public funds” rule because he will be paid ESA at the single rate, and his HB will not have any increase because of her presence?  Is there anything we have overlooked?

Thanks for all help
Ruth

Simon
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Charlotte Keel Welfare Rights, Bristol CAB

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That all looks correct, Ruth, however is there not a case for the partner not to have a right to reside as a family member/extended family member of an EEA national? The former would be the case if they were married, the latter if they are in a durable relationship and the partner has been issued an EEA family permit, registration cert, or residence card.

dereksi
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There will be a potential problem if your client is placed in the support group. This would lead to the award of an enhanced disability premium but paid at the couple’s rate - thus breaching the public funds restriction. See pages 73-74 of CPAGs Benefits for Migrants Handbook .

Tom B (WRAMAS)
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Simon - 02 February 2017 04:15 PM

That all looks correct, Ruth, however is there not a case for the partner not to have a right to reside as a family member/extended family member of an EEA national? The former would be the case if they were married, the latter if they are in a durable relationship and the partner has been issued an EEA family permit, registration cert, or residence card.

Partner is not EU/EEA national + no recourse to public funds…

Another thing to consider would be Council Tax Reduction. If clt would otherwise have single occupier discount + is passported to full CTR without the discount, could the partner inadvertently be accessing public funds via the additional CTR in payment?

Simon
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tbidmead - 02 February 2017 04:27 PM

Partner is not EU/EEA national + no recourse to public funds…

Another thing to consider would be Council Tax Reduction. If clt would otherwise have single occupier discount + is passported to full CTR without the discount, could the partner inadvertently be accessing public funds via the additional CTR in payment?

Although the partner is indeed not an EEA national, they could enjoy EEA residence rights IF they are a family member/extended family member of an EEA national (see CPAG Benefits for Migrants handbook 8th Ed p. 125).

HB Anorak
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EEA nationals and their family members of any nationality do not require leave to enter/remain in the UK, therefore as long as the non-EEA partner has a right to reside as a family member they are not breaching any immigration conditions by claiming benefits: see para 1 of Schedule 3 to the Immigration (EEA) Regs 2016 (Yay! My first reference to the new Regs which came into force yesterday).

It looks as if the Latvian retains the right to reside as a self-employed person during temporary incapacity.

Failing that, your problem is academic because neither of them will be entitled to means-tested benefits.

Problem solved either way!

By the way, in cases that do get as far as an assessment involving a partner with no recourse to public funds (eg a British citizen with a non-EEA spouse) there is lacuna in the interaction between the Immigration Rules and the benefit rules: in HB and conventional CTR schemes there is no provision to exclude the partner from the assessment, or to limit their impact so as to avoid increasing benefit.  In a few situations the very existence of the partner can result in additional HB or CTR being paid and this can be a risk further down the line when they are applying for ILR.  For example:

- income exceeds the applicable amount, so being a couple reduces the taper
- under 35 living in self-contained accommodation
- and as someone pointed out above, no CT discount so technically higher award of CTR.  I have seen that happen: ILR refused to Pakistani woman because British husband on single rate JSA(ib) claimed full CTB instead of 75%.

Paul_Treloar_AgeUK
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We have similar case but our client is UK national married to Iranian parter, with the latter hving the no recourse to public funds.

Is this one of those strange anomolies whereby the client can only claim as a single person because the UK national cannot take advantage of these rules as he doesn’t count as an EEA national?

ikbikb
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The Iraqi partner should be signposted to immigration specialist simply on the basis of the visa restriction and potential risk no matter how small.

Elliot Kent
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Paul_Treloar_AgeUK - 03 February 2017 10:55 AM

We have similar case but our client is UK national married to Iranian parter, with the latter hving the no recourse to public funds.

Is this one of those strange anomolies whereby the client can only claim as a single person because the UK national cannot take advantage of these rules as he doesn’t count as an EEA national?

Yepp. British nationals are limited to domestic law rights which don’t allow family members to be brought in without visas. The exception is if Surinder Singh applies.

Ruth Knox
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Thanks to all the comments which are really helpful and especially the reference to the new regulations as we do want to be careful not to jeopardise any future plans she has. Yes, it does look as if its one of those situations where being an EU citizen gives rights a UK citizen doesn’t have (unless they have worked in another state). We will look into the “extended family member” route.  In the meantime, in looking at the single claim route,  I think that with each area now having its own Council tax support scheme, it should be possible to apply for Housing Benefit but to specify that there is no application for Council tax support.  Ruth

nevip
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Paul_Treloar_AgeUK - 03 February 2017 10:55 AM

We have similar case but our client is UK national married to Iranian parter, with the latter hving the no recourse to public funds.

Is this one of those strange anomolies whereby the client can only claim as a single person because the UK national cannot take advantage of these rules as he doesn’t count as an EEA national?

Unless he has worked in another EEA state