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Have now seen a couple of cases where the DWP Decision Maker insists that a claim made for a sure start Maternity Grant, whose partner is pregnant or has just given birty, but is subject to immigration control must be refused. This is on the basis that they say "You are not in receipt of a qualifying benefit in respect of your partner...."
The DWP case in this situation seems to me to be rubbish. Anyway, below I summarise the relevant law and the argument as to why the DWP are wrong.
(I'm putting this up because I saw the second case on same point today and am beginning to think the DWP might be consistently getting muddled up about this).
Would love to hear about other people who have seen similar cases or had appeals on this point.
1. Reg 5 of the Social Fund Maternity and Funeral Expenses (General) Regulations 1987 (“the Regulations”) sets out the conditions which must be met to create an entitlement to a Sure Start Maternity Grant (page 1278 of current edition of Volume II of Social Security Legislation- the only amendment to the legislation since the date of decision is not relevant here as it relates to Working Tax Credit).
2. The issue in dispute will be Reg 5(1)(a) of the Regulations:
“5(1) Subject to regulation 6 and Part IV and V of these Regulations, a payment to meet maternity expenses (referred to in these regulations as a “Sure Start Maternity Grant”) shall be made only where-
(a) the claimant or the claimant’s partner has, in respect of the date of the claim for a Sure Start Maternity Grant, been awarded either income support, income based jobseeker’s allowance…… and
(b) either-
(i) the claimant, or if the claimant is a member of a family, one of the family is pregnant or has given birth to a child….”
3. The provision is worded “the claimant or the claimant’s partner has been awarded…..”. There is nothing in that wording about the claimant receiving an amount in respect of his partner- the issue is simply whether the claimant has such an award. There is absolutely no ambiguity in the words used.
4. Reg 85 of the Jobseekers Allowance Regs 1996 provides that applicable amounts are to be worked out using Schedule 5 of those regulations. Para 13A of Schedule 5 provides that a claimant who is the partner of a person subject to immigration control shall only receive an applicable amount:
“in respect of the claimant only under regulation 83(a) plus that in respect of any child or young person who is a member of his family and who is not a person subject to immigration control….”
It is clear from this, and from the regulations specifying that it is the income of the couple that is to be taken into account, that the JSA regulations do not treat a couple where one is subject to immigration control as not members of the same family or not claiming in respect of each other- instead the simple device is used of saying that you are entitled to benefit for your family but you will not be paid an amount in respect of your partner.
5. The fact that the issue of receipt of an amount of benefit in respect of a partner is an irrelevance to entitlement to the Sure Start Maternity Grant is made absolutely clear by Commissioner Levenson in CIS/2031/2003. In that case the claimant was the partner of a person in receipt of Income Support. At the date of claim for a Sure Start Maternity Grant, although she was living together with her partner, the claimant had not indicated she was in a couple and was in fact pursuing a claim for Income Support on her own account which was eventually refused. It was subsequently accepted by the Secretary of State that the pair were a couple at the date of claim for the Sure Start grant although at that time, no amount for the claimant was in payment on her partner’s Income Support. Counsel for the Secretary of State (Mr Henshaw) in that case argued as follows:
“10. Mr Henshaw’s second argument is that in any event there is no entitlement to the Grant. This is because the reference in regulation 5(1)(a) to a claimant’s partner having been awarded income support should be read as referring only to cases where the claimant’s partner receives income support in respect of the claimant. Although the claimant and Mr W were partners from before the date of claim, the claimant was not included in Mr W’s income support assessment until after the date of claim.
The Commissioner commented on that submission (the same as the one made in the present case by the Decision Maker) in the following terms:
“I also reject this (rather mean minded) argument, and not only because it contradicts the actual wording of the regulation.
11. Whether or not the applicable amount in the calculation of entitlement to income support includes an amount for a partner, there is only one claim for income support (although the decision on the claim or the amount of entitlement might later be changed). Also, if a claimant for income support has a partner, the means of the partner are aggregated and the income support claimant has no choice over this (Social Security Contributions and Benefits Act 1992 s 136(1)). Mr Henshaw’s argument would mean that an income support claimant could have his partner’s income treated as his own but if (through error or for whatever reason) the applicable amount was not calculated with reference to the partner, not only would the amount of income support payment be reduced but the claimant’s partner would not be able to claim a Grant on the birth of a child. Income support recipients are, by definition, on subsistence level incomes and this could not possibly be justified.”
6. The only difference from that in the partner subject to immigration control cases is that the reason no amount was in payment for his wife was not to do with the failure of Mr X to mention her on his claim, rather it was due to the operation of para 13A of Schedule 5 to the JSA Regs. However, Commissioner Levenson makes it clear that it does not matter why the applicable amount is not “calculated with reference to the partner”- he uses the phrase “through error or whatever reason”. It is therefore clear that the scope of his decision includes the present case.
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