ESA (& means tested benefits) - couple where one has no recourse to public funds

Hello and happy Friday,

Sorry wasn’t sure which forum this applied to so posting in the ESA one.

I have a client getting HB, CTS, IR ESA and CTC.

Her husband is not able to work or claim any benefits as he does not have the correct residency status.

Her husband is supporting her a great deal financially, he seems to have a lot of money but I don’t know if it is savings or if his family abroad are giving him regular large amounts of money.

In cases such as these, for means tested benefits (including IR ESA), would the husband’s savings and also the income from family donations be taken in to account in the means test? They seem to be getting full amounts for means tested benefits so I presume not, but not sure if this is correct? Or would she be treated as single as the husband has no recourse to public funds.

Thank you

DWP often get these wrong - it’s one of those rare situations where they routinely err in the claimant’s favour.

Assuming they are a couple - married and living in the same household - they are aggregated in the normal way for all purposes except the applicable amount which is limited to what she would get as a single person: see ESA Reg 69 and Schedule 5.

If the husband has capital in excess of the limit they should not be entitled to ESA(ir).  As for regular income from family donations: under para 16 of Schedule 8 any “voluntary payments” are disregarded, so if these payments are made as gifts with no strings attached they won’t affect the income assessment.  But if the husband is in receipt of any non-disregarded income it should be taken into account.

In practice DWP often deal with these cases by completely ignoring the partner.  That is not correct and can lead to windfalls as in the present case.

Local authorities usually have a much better awareness of PSIC partners and if it was up them they would be taking his income and capital into account ... but for the time being they are stuck with an HB claimant on ESA(ir) and they cannot get past that, so as it stands full HB is correct.  As long as the claimant has disclosed everything to DWP she should be in the clear as regards overpayments, including any knock-on HB overpayment.

I’d also flag up that p.74 of CPAG Migrants Handbook 8th edition, at page 74 states that if a partner’s leave is subject to no recourse to public funds, you should be aware that a HB claim can, depending on the circumstances, result in additoonal public funds being paid as a result of their presence, which in turn breaches the recourse to public funds condition and could affect their right to remain in the UK. They say to seek specialist immigration advice prior to claiming HB, which obviously isn’t possible now but might be worth seeing if that’s feasible or affordable after the fact.

Thank you both. That’s very useful info.

Cheers