IS for couple where partner is PSIC.

Hi,

One of my clients is a disabled gentleman. Prior to Jan 2011 he was single, living alone and in receipt of MR care, HR mob, IB and IS including an SDP.

His partner, a US citizen with no recourse to public funds moved to the UK and joined the household in Jan 11. They married in May 11. This change was not disclosed to JCP as he was under the impression that as she had no recourse to public funds her presence could not affect his entitlement.

JCP found out via local council in June 11 and ended his IS entitlement wef Jan 11, creating an recoverable overpayment. His wife shortly after returned to the States for an extended 3 month holiday (funded by her family). He reclaimed IS at this point, was declined and submitted an appeal. He did not technically appeal the original disallowance or the overpayment, although his grounds clearly included arguments against these decisions and it appears that JCP are treating the appeal as one against the original disallowance as well as the new claim.

I became involved a few days before his hearing. There was a clear error in the JCP calculation of his applicable amount for the whole period (they used a single person disability premium rather than the couple rate). A brief submission was made to that effect along with late appeals against the original disallowance and OP with a request that they are all considered togethor to tie up any loose ends. The hearing was adjourned in light of the lateness of the submission.

I have since identified that his applicable amount can be calculated as a single person (including an SDP)  for some of the period his wife was back in the States via para 11 of schedule 7 of the IS regs, and am updating his submission to argue this point. In the meantime JCP have conceded that my original submission is correct but have not officially revised the decision.

However his original grounds of appeal included arguments that it is perverse that the benefit system treats her as part of the household when she has no recourse to public funds and he asserted that he should either be paid SDP for the entire period or that his applicable amount should include an amount for his wife as a dependent.

I don’t think there is any valid argument to support this contention, given the clarity of para 16A of schedule 7 of the IS regs and the effect of CIS 1159/2004 which confirms that a partner who is PSIC can prevent entitlement to SDP. However he is not willing for me to concede these points at a rescheduled hearing. The best I think I can do is offer no submission of these particular points and leave it up to the Judge. He does not feel able to attend a hearing due to the nature of his disability.

Am I missing anything?

Thanks in advance for any thoughts.

What interests me is if he is not attending are you?  And if so is he expecting you to advance his arguments at the hearing regarding the unfairness of it all?  Because as you say it is correct in law that he cannot get the SDP if he has a partner (apart from the brief period you mention) under his circumstances.

In the event that I could not concoct an arguable case on, say, ultra vires grounds or outside of the Social Security statutes (Human rights Act for example), then I personally would not attend a hearing, with or without the appellant, if he expected me to advance an argument that had no legal basis.  The farthest I’d go, as you have done, would be to prepare a submission only on the points that did have legal merit and leave the rest up to him.  The danger in attending and advancing nothing on his unarguable point, or conceding that point, is that you risk him accusing you of sabotaging his case.

I would make my position clear to him at the outset and agree to represent him only on those terms.  If he wanted my help on those terms fine.  If not I’d refer him on and invite him to seek a second opinion.

Thanks both.

Nevip - I’m posting as I offered to seek some 2nd opinions and he has indicated he would be willing to concede if no other (workable) ideas come out of it.

Tony,

My reading of 11 and 11a is that as long as the partner is abroad, 11 will apply if 11a doesn’t. I.e if the partner’s temporary absence abroad is for a child/young person to have treatment the applicable amount changes to single person after 8 weeks, if for any other reason 4 weeks.

DMG 071946 and 24258 support this interpretation.

My query is kind of related to this thread, but in my client’s case it is her elderly mother who prevents her from getting the SDP in her ESA.

My client’s mother was given leave to enter with no recourse to public funds over 10 years ago. I believe there was a maintenance undertaking at the time, but the client has since given up work due to ill health, and now claims ESA and DLA.

The case was brought to me because her support worker is trying to argue that she should get the SDP on account of the fact that her mother is a PSIC and contributes no money to the household (because she doesn’t have any benefits or pension income).

This thread refers to a couple, but am I right in thinking that my client is also not allowed the SDP for her non-dependant mother, despite the fact that she doesn’t contribute any income to the household? The wording on page 237 of CPAG 2015/16, just under the heading ‘Non-dependants’  made me wonder: “but who are regarded as being able to contribute towards household costs.” The mother contributes nothing to household costs, but I haven’t found anything in the related legislation that refers to this.

My second query is whether the client’s mother can now claim benefits but the client just hasn’t realised? If so, which benefits? I’ve found a few things saying that people who have been PSIC under maintenance undertakings for 5 years+ can qualify for certain benefits, but I’m not sure if I’ve understood it correctly. The schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 also lists circumstances when people are no longer exempt from certain benefits (PC isn’t listed but AA and HB are).

I’m also wondering whether it might be worth the mother applying for a change in her immigration status, given that she has been in the country for so long?

Any suggestions gratefully received.

A maintenance undertaking is usually required in a case where a relative (especially an elderly relative, so your case fits the profile) is given indefinite leave to enter the UK.  This is different from limited leave with no recourse to public funds - the difference could be crucial in your client’s case.

ILR with a maintenance undertaking prevents the person from claiming means tested benefits for five years (sooner if the “sponsor” dies - not applicable in your case).  The person had indefinite leave all along - their immigration status is secure - but the means tested benefit schemes exclude them from entitlement for the first five years.

But if it was limited leave with no recourse, it is vital to establish what happened at the end of the limited leave period: was further leave applied for or granted?  Worst case is the client’s mother is an overstayer.

Have you seen the original stamp/sticker?  What does it say?