Hi all,

I'm advising a polish client who is having some problems getting benefit paid.

In short, she has separated from her husband following violence (there is currently a non-mol in place against him) and is looking to claim JSA while looking for work. Normally she would have no entitlement but her husband is working and registered. She should therefore be treated as a family member and will have a right to reside as family member of qualified person.

Problem is, benefits office are refusing to allow her claim until she can prove she has a right to reside which means proving what her husbands status is. Due to the breakdown in relationship, her husband will not provide proof that he is working and registered. She has contacted the HO but they refuse to confirm his position due to data protection issues. The benefits office have also refused to contact the HO directly to get confirmation themselves.

So, I’m stuck!! Apart from threatening JR on the local office for refusing to contact the HO when the claimant cannot obtain the evidence (and this is not guaranteed as the responsibility lies on the claimant to prove entitlement), I am unsure how else we could go about getting the proof that he is registered. Anyone got any ideas?? Can the HO be persuaded to give confirmation directly to the social security office (so the wife never sees it)?

Hi Lee

In Kerr (AP) v. Department for Social Development (Northern Ireland) HL, Baroness Hale stated at paras 62 and 63.

“What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

If that sensible approach is taken, it will rarely be necessary to resort to concepts taken from adversarial litigation such as the burden of proof. The first question will be whether each partner in the process has played their part. If there is still ignorance about a relevant matter then generally speaking it should be determined against the one who has not done all they reasonably could to discover it. As Mr Commissioner Henty put it in decision CIS/5321/1998, "a claimant must to the best of his or her ability give such information to the AO as he reasonably can, in default of which a contrary inference can always be drawn." The same should apply to information which the department can reasonably be expected to discover for itself”.

Regards
Paul

Cheers Paul (and being from a Northern Ireland decision, I probably should have known that reference!!)That is probably the better approach to take rather than going straight in there with the threat of JR (typical lawyer, eh??)

Thanks for the help.