Looking for some suggestions with this one!

68 year old man was getting PC with an additional amount for severe disability, getting an award of around £60 p/w.

He meets and marries a lady from Bulgaria, who he met in England working as a nurse/care assistant. She was originally on a work permit but is given a two year spousal permit. They return to Northern Ireland to live here.

As she is subject to immigration control, he cannot include her on his claim to PC. But, because she now lives with him, is healthy and over 18, he loses his entitlement to the severe disability additional amount. His PC award had therefore dropped to around £15 p/w.

Is there any way around this?! Reg 5 of the SPC Regs says any person subject to immigration control is not to be treated as part of the household. Does this mean that he is treated as a claimant who has no partner for the purposes of Schedule 1? Is it worth arguing that if she is not treated as part of the household under Reg 5, she cannot be treated as residing with him under paragraph 1(1)(a)(ii) of Schedule 1? (very long shot, i know!)

Any comments would be appreciated.

Thu 23-Jun-05 09:39 AM by ken

Hi Big Lee,

Sorry to say this, but I think you may be backing a loser, unless you can distinguish between say how the regs re SDP are worded for IS and PC.

Did a word search for 'severe disability premium' in rightsnet briefcase and came up with this decision by Commissioner Fellner in CIS/1159/2004 -

' ... where an attendance allowance recipient has a partner, then unless she also gets attendance allowance, or is blind, he can no longer receive SDP: paragraph 13(2)(b)(ii) and 13(2A). There is no doubt that the claimant’s wife is a 'partner' who does not fall within either of the exceptions.

... The claimant’s argument has always been that this legal scheme of things is unfair where, as here, his wife is not entitled to minimum income guarantee, nor is he entitled to any amount for her, because she is a person subject to immigration control under s115 of the Immigration and Asylum Act 1999. The claimant is a 'partner' of a person subject to 'immigration control' and as such under regulation 21(3) of and paragraph 16A of Schedule 7 to ISGR, there is a nil applicable amount for her. But no appeal against the refusal of minimum income guarantee is before me, and I cannot deal with it. In any event it has no bearing on the law relating to SDP ... The claimant’s circumstances most certainly have changed: he now has his wife living with him, and able to give him the care he might previously have had to pay for. There is absolutely no foundation for his assertion that the SDP provisions are ultra vires.'

briefcase summary of CIS/1159/2004 is available here, with a link to full decision on the www.osscsc.gov.uk site.

Cheers Ken, hadn't seen the Fellner decision before.

It does appear though that there is a difference between IS and PC. For IS, having a partner subject to immigration control means you can still claim IS but you are considered a couple and the partners income etc would be taken into account.

For PC, the partner subject to immigration control is considered to not to be part of the household, (and hence income etc of the partner is not taken into account) so it's certainly arguable that the claimant should be treated as a single person. (Pg 664 of CPAG explains it probably more eloquently than I just have!)

But even with this distinction, I would still face the problem of Schedule 1 of the SPC Regs, as it refers to "residing" with the claimant. The difficulty is Reg 5 states a person subject to immigration control is legally treated as not being a member of the household, while "normally residing with" is essentially a factual test, eg does someone actually live with the claimant. Any argument would have to be around; if she is treated as not part of the household then can she also be said not to be residing there, and I am not overly hopeful that such an argument would be successful.

I shall ponder upon some more, but thanks for the help Ken.

Lee

Hi Big Lee,

One does not have a warm glow of optimism with this case, but the implications are important for mixed status households.

Reg 5 is about defining who can be held to be in your household, for the purposes of claims/awards. As you say, Schedule 1 of the regs defines who can get SD Addition, and refers to "no person...normally residing with..."

The implication of the case law Ken contributed is that the two things are not mutually exclusive, because they aim to do different things. Its a pity that the Schedule does not refer to "household", and maybe this was done on purpose!

And yet I can't help thinking that you might have a slender chance at a tribunal, if you can show that you can't be held to reside with someone if you are simulataneously held to be in different households (I suggest you adopt a suitably incredulous look at this point in the tribunal proceedings, if you decide to represent!). However, if you won, you can bet there would be a fairly instant appeal by the PS.

If it was never the intention of the regs to allow this interpretation, it would have been fairly straightforward to make this clear in the regs (probably as part of Schedule 1). The lack of this clarity might give us additional hope.



Steve

Cheers Steve, I'm still uncertain whether to try the argument or not but at least you've given me some hope.

On a brighter note, my immigration colleagues here reliably inform me that because here in NI we have dual nationality (British and Irish), if the claimant has ever worked and is therefore a qualified person, we could make an application for an EEA Family Permit. This would allow for the bulgarian partner to be treated as no longer subject to immigration control and could be included on his claim for PC. He wouldn't get the SD additional amount, but would get the couple rate for PC.

But it seems to take a while to get the EEA family permit through, and while the family permit only confirms the position (so theoretically we could argue this before the family permit is actually issued), I would be reluctant to go down this route if there was any risk of it impacting upon her ability to remain in the country.

Thanks for the help so far guys.

Lee

Possible route IF the people are joint owner-occupiers or joint tenants:

1. They are not members of the same household for PC - PC Reg 5(1)(h).

2. They are not a married couple for PC - PC Act sec 17, 'same household' provision.

3. Joint-householders don't kibosh the SDP for other joint-householders - PC Regs Sch I para 2(6)(a).
NB - para 3(3) - a spouse is not a close relative. Definition - PC Reg 1(2).

Jim