Special rules for certain mixed age couples - younger partner on a diplomatic visa - what stops her claiming UC?

I helped my client (pension age) to claim HB as he has just been granted Indefinite Leave to Remain.  They are a mixed age couple but his younger, disabled partner holds a diplomatic visa. HB have refused the claim and directed them to UC but in my view they’d come within the special rules for mixed couples.  I understand she is a person exempt from immigration control so not a PSIC.  What is it that stops her being entitled to benefits? I presume she cannot claim but it’s not because of a NRPF restriction so what exactly stops her.  I just want to spell out to the LA why she can’t claim UC, if that is the case.  Many thanks

Special rules for certain mixed age couples
15. In certain circumstances, under UC rules the younger partner in a mixed age couple will be ineligible for UC where they are:

under 18 (the normal minimum age for UC)
does not satisfy the habitual residence test
is a person subject to immigration control
is a prisoner (including detention in hospital serving a sentence of imprisonment)
is absent from Great Britain for more than the period allowed for a temporary absence (normally one month)
16. As the older partner is over pension age they cannot claim UC and would also be unable to make a claim for pension age HB because they would still be treated as a couple under HB regulations. However, amendments made by SI 2019/935 to Article 7(2) of SI 2019/37 will allow the older partner to be treated as a single person, when under normal pension age HB regulations they would still be treated as a part of a couple.

17. The older partner can claim pension age HB and Pension Credit as a single claimant until the reason they are unable to claim UC as a couple no longer applies.

There are four ways you can be a PSIC:

- as a person who requires leave to enter or remain in the UK but does not have leave, either because you never had it or you did but it ran out or got revoked
- as a person with limited leave to enter or remain subject to an NRPF condition
- as a person who does have leave (usually to enter, but sometimes to remain) but who only got that leave on the back of someone else’s written undertaking to maintain him/her
- there has been a first negative decision by the Home Office which is now under appeal and the only reason why you still have leave to be in the UK is because it has been extended pending appeal

If none of the above applies, there is nothing to stop the person from claiming benefits as a PSIC.  The Immigration Act 1971 gives the Secretary of State the power to make certain people exempt from the requirement to have leave and various kinds of diplomats have that exemption.  Those enjoying such exemption are, however, advised to take the precaution of getting a passport sticker before they travel to avoid any embarrassment at the airport.  Could it be that your client’s partner has a diplomatic exemption sticker and is actually present in the UK without leave as an exempt person who doesn’t require it?  That would mean she isn’t a PSIC and can claim UC, so the client cannot claim legacy benefits.

What exactly is the nature of this visa she has?

Thanks for the clarification.  Although no longer actively working, the HO have just issued her an exempt vignette so definitely not subject to immigration control.  I’ve never encountered a ‘Exempt Diplomat’ before so I’d just naively accepted what my client had said about her not being able to claim but I couldn’t see on what basis she’d be excluded which was driving me mad.  I will try the UC route then so thank you!

I have to say that, having never had any cause to look into it, I would have assumed that it would be impossible for people on diplomatic missions to be able to claim benefits from the host state. It just seems like states would want to avoid a situation where the host state is given a large amount of information about the financial affairs of people on the mission who claim and where the host state is then able to make decisions which directly impact the financial wellbeing of those people. Having said that, I haven’t been able to find anything which would prevent it.

It would be interesting to try and argue diplomatic immunity to a sanction or benefit overpayment though…