Please help if you can, I can't get my head around this one.

Client, healthy, lone parent. Married abroad. Was getting IS as member of a-married-couple-with-partner-temporarily-abroad, then he came over in 2001, with no recourse to public funds and no work permit.

DWP says they want all IS back as her grounds for entitlement ended when he returned. (Indefinite Leave to Remain granted later, after the period of the overpayment.)

They seem to be saying that he could have cared for the kids, leaving her to sign on for JSA and there are no grounds for IS at all.

IS THIS RIGHT? (It doesn't seem fair.)

I could have sworn I've come across cases before of couples, with one partner having no recourse to public funds and the other getting lone parent IS for herself and the kids, with the full knowledge of JC+ - but now I can't find any. Has anyone else had this? What would you recommend?

I think you have problems.....

The way that Income Support deals with "mixed immigration status" couples is relevant:

I am afraid it is right.
but there is the question of official overpayment etc.

also was he healthy? any reason why he could not work?

might be worth an oral appeal if none of those but there are other reasons that may have made it unreasonable for her to leave the kids in his care while she looked for work?

Good luck-

Remember it's not a question of reasonableness as to who should look after the kids etc. The law is clear that unless your client comes within one of the groups of people who can claim IS (listed in Sch 1B to IS Regs) there is no way she can claim.

ie she must be either sick, carer, over 60 etc etc. There is no question of a discretion or vague categories - either she is in an IS claimant group or she is not.

His (assuming he is the person subject to imm. control) health is pretty irrelevant- he will not be able to be the claimant and it is the claimant who has to be the ill one to found a claim on the basis of incapacity.

Thanks for your helpful comments. I'll need the luck. Actually the oral hearing is in about a week.

I have to agree - my client ceased to fit any Schedule 1B category of person entitled to IS directly her husband became present in the UK.

I'm now going for a technical overpayment defence - defects of substance in the decisions. None identify the awarding decision to be superseded. One decision mentioned is missing and according to the papers there is no record that the awarding decision was ever made, if that's possible. But even if the appeal is allowed I fear the DWP will just reissue them all in a more perfect form at a later date!