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Benefits entitlement after 5 years of PSIC status?
Would be really grateful for any comments on my entry in the thread below. My client’s elderly mother has been a PSIC for over 10 years with supposedly no recourse to public funds. Could she get any benefits now given how long she has been in the UK? PC would be preferable, but even just AA would be something as her health is not good and my client is supporting both of them with her ESA (no SDP due to the mother being resident) and DLA.
Thanks
Apart from the question of being counted as a non-dep.
It looks like an immigration law enquiry at first glance.
Depending on her stay in the UK, to-date, as well as all other circumstances or factors she may be eligible to utilise the Immigration Rules to vary/amend her current conditions to enable her to be eligible to claim benefits such as PC and AA.
I am not an expert in Immigration, but it is often a much easier method for PSIC clients to get the right stamp/permit/visa document to access the UK benefit systems. Maybe a costly outlay but the cost benefit would generally be worth it (depending of facts and prospect of course).
From facts it is unclear what her current status and history is (see HB’s post in other thread).
I haven’t seen the original stamp/sticker myself, but her support worker has just got back to me to confirm that the mother has indefinite leave to remain.
Due to the amount of time that she has been in the UK, does it mean that she can now claim PC and AA? If so, will she have to refer to certain regs/statues when she applies? I can see her claims being rejected if she goes about it via the normal routes, especially when they see ‘no recourse to public funds’ in her passport.
HB Anorak’s reply on the other thread is below:
“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?”
If she has indefinite leave and has been here 10 years, she is in the clear: should be entitled to benefits on same basis as a British citizen.
If she was originally granted limited leave with no recourse but subsequently was granted ILR the original stamp/sticker no longer applies: the “no recourse” endorsement was a condition attached to her limited leave while it lasted. Indefinite leave does not have conditions. So as long as she can provide proof of a more recent grant of indefinite leave this should be enough to satisfy a DWP decision maker.
I might be getting my wires crossed, but the extract below from MMiah suggests that she could have been given ILR with a maintenance undertaking which would have prevented her from getting means-tested benefits for 5 years:
“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.”
So, is it possible that the original paperwork (ILR+maintenance undertaking), still makes it look like she can’t claim benefits (i.e. I assume the paperwork doesn’t make it clear that the ‘no recourse to public funds’ caveat expires after 5 years)?
Can someone tell me which reg/statute allows a person in this situation to get means-tested benefits after 5 years, in case she needs to quote it to get past any initial DWP opposition to her benefits claims?
Thanks
In relation to your observation, “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 statement you query is a general explanation of the approach to ND’s and isn’t found in the relevant regulations.
You’ll notice the associated footnote 54 points you in the direction of various regulations, depending on the benefit at hand. So for IS, it’s reg.3 of the IS regs and the basic approach in law is that non-dependent means any person who normally resides with the claimant, except in certain specific circumstances. None of these circumstances would obviously apply to your client’s mother on the face of it at this stage.
In terms of your substantive query, I think the advice you’ve been given above is spot on - you need to deal with the immigration matter first, to establish whether a “no recourse to public funds” restriction still applies. If, and only if, you can confirm that the mother doesn’t still have this restriction can you start to explore making benefit claims. If you make benefit claims and the restriction does still apply, the permission to allow her to remain in the country could be revoked and she could be required to leave.
You should never attempt to short circuit this process where there are such queries - if there’s a doubt about immigration status and a desire to claim benefits, you should always resolve the former before doing anything on the latter.
Thanks, Paul. I agree with the need to address immigration issues first. The problem is paying for the immigration advice. The client and her mother are living on the ESA/DLA income of one person, so there’s not much spare for things like legal advice. I suppose they will have to save up the money over a period of time. I took one client to a law centre for immigration advice and it cost £80, which isn’t too bad if they don’t need follow up appointments.
The five-year benefit embargo is not a “no-recourse” condition: is not an immigration matter at all. For immigration purposes, the person has indefinite leave to (usually) enter and the maintenance undertaking is what enabled him/her to get it.
The thing that stops such claimants getting benefits is s115 of the Immigration and Asylum Act 1999 which makes such a person a “PSIC” (limb (c) of the definition in subsection (9)). The Social Security (Immigration and Asylum) Consequential Amendment Regs 2000 disapply s115(9)(c) in the case of someone who has been covered by the undertaking for five years or whose sponsor has died.
Unfortunately these cases are not easy to identify: the immigration stamp/sticker doesn’t tell you about a maintenance undertaking. Benefit decision makers can check with the home office and they tend to do so when the case profile suggests a strong likelihood of an undertaking: blood relative granted indefinite leave to enter, and especially if they are at a public funds-critical life stage such as old age.
Limited leave to enter/remain with no recourse to public funds is a different thing altogether. This is a condition of being allowed to enter/remain in the UK and if you breach it you diminish your chances of getting ILR further down the line. As a claimant in your own right you won’t qualify in any case, but you can also be penalised if you cause someone else to receive more benefit than they would have done otherwise - this is particularly likely in HB where the applicable amount is not modified according to immigration status. Your client’s mother does not have to worry about any of this because she now has indefinite leave. And because it appears to be indefinite leave to remain following a period of conditional limited leave (that is the impression I get from the facts you have provided) it is extremely unlikely that she only got it on the strength of a maintenance undertaking - doesn’t fit the typical profile for that if it isn’t ILE. So there ought not to be any obstacle to her now claiming benefits. DWP might still check with the Home Office though. The enquiry servcie works on the GIGO principle (garbage in, garbage out): to find out whether there is a maintenance undertaking the person making the enquiry needs to be clear what it is they are asking.
Thanks for everyone’s input, I’ve definitely learned something.
I’m going to insist on seeing the mother’s passport and immigration documents before deciding on next steps. It sounds like she may well be able to claim benefits now, but I’ll wait and see if the documents support this.
By the way, I take it that the daughter getting the SDP while her mother lives there is a definite no-go? It does seem very unfair when the mother has no income, but I don’t want the support worker to waste time pursuing that if the rules for the SDP clearly rule it out. I read through the CPAG stuff on this and nothing suggested she could get the SDP, so I’m not hopeful about it.