Housing Benefit where partner has no recourse to public funds

Client is in prison on remand, he has put in a claim for housing benefit. The complicating matter is that he is married to a Croatian National who is subject to immigration control and has no recourse to public funds, she also does not live in the UK the whole time as she does some work and study back in Croatia. The client states she spends 6 months a year in Croatia.  HB are asking for her national insurance number and her income/capital before they will assess the claim, the client’s support worker is querying this, she does not have an NINO as she does not work or claim any benefits here.

I looked in our CPAG,Migrant and Benefits Handbook and it looks as though how the HB claim is assessed will depend on whether she is considered part of his household or not. If she is then they will treat the claim as though they are a couple and her income will be taken into account in the assessement. It looks like she would have to apply for a NINO. A decision to pay housing benefit as a couple could affect her immigration claim, as although the claim for HB is in his name, if the calculation treats them as a couple she could be seen to be taking public funds.

If she is not considered as part of his household then he will be assessed as a single claimant and will not have to provide the income details requested.

Having looked in the handbook it looks like she would be considered as part of his household as they remain a couple, she has lived here and will continue to live here for periods of time and her absense will not be seen as temporary as she has not been away for longer than a year.

Have I misunderstood this? is there anything else that needs to be considered?

I think you are right.

However, Croatia joins the EU on 1 July 2013. Given that, the possible consequences of her having additional recourse to public funds is possibly limited (at least insofar as curtailment of her leave is concerned- although it is rare for that to happen anyway).
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In terms of working out whether there would be additional recourse then do two calculations:

1. Calculate what HB he would get if he was a single person (single person app amount etc including only his income etc).

2. Calculate what HB they would get as a couple (couple rate app amount and include her income).

3. Compare 1 and 2- additional recourse exists when 2 is bigger.

In many cases (for example claimant on ibJSA or generally claimant income = or less than the app amount for a single person plus £5 disregard of wages) then the amount will not be higher if you include the partner and so no additional recourse.
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I think they would count as a couple - see Reg 21 HB Regs - provided the absence from each other is likely not to exceed 52 weeks then still a couple.

No probs- the council tax point is a good one that I didn’t mention….

For council tax purposes… what sort of student is she? Would she be exempt for CT purposes?