Forum Home → Discussion → Housing costs → Thread
Non-depedent issues and Income Support with a bit of right to reside for good measure
I have an on-going case with a non-dependent (20 years old) that is turning into a nightmare and I am struggling with what to do, so I’m asking the knowledgeable people at Rightsnet for some help:);
Non-dependent is a Dutch national who came to live in the uk with her parents in 2008, she attended college and was married last year to a non EEA person. The marriage is not registered as she is a Muslim and was married under a Nikaah arrangement; they went on to set up a business together with her as a sole director (self-employed).
In Feb 2013 she moved back in with her parents as her husband left her and returned abroad taking all the business papers and accounts leaving her with nothing other than a few bank statements, she then stopped being self-employed as of 01/05/2013 (it was actually before this but for the purposes of her I.S. claim she gave this date)
The Housing Benefit department has applied the maximum non-dep deduction to her parents HB claim, the landlord for the parents are now proceeding with court action due to arrears.
The non-dep is now pregnant with approx. 5 weeks till her due date and has claimed I.S., she has received a decision stating she has no entitlement to I.S. as she does not meet the criteria due to;
- Not having a right to reside
- Not being habitually resident because she is not a qualified person as defined by Reg 6(1) or (2) or (3) of the Immigration (EEA) Regs 2006.
My question is can a person be a non-dependent whilst not having a right to reside?
Should she be able to claim a right to reside as a family member of an EEA national who has the right to reside and she is under 21.
Sorry about the length of the post but I seem to be going round in circles with this.
Just one brief point, not in direct answer to your questions, but whilst you get all this sorted out you need to provide evidence to HB that your client has no income so that the NDD is reduced to the lowest deduction rather than the highest as it is now (I assume due to lack of evidence to establish income).
My memory is also suggesting that there is also case-law stating that LAs should not be imposing the maximum deduction as a default where there is no evidence to support a deduction at that level. Can’t remember where I read that though sorry!
Firstly, I think a non dependant deduction can be applied as client does not appear to be exempt. If she was in receipt of JSA (IB) there would be no NDD.
Secondly, you would need to appeal the maximum non-dependant deduction (NDD), local authorities in cases where doubt arises as to a non dependant’s income will incorrectly apply the maximum deduction. This is often wrong and which will often result in a significant reduction in HB.
Thirdly, at 20 she can have right to reside as a dependant family member provided the client’s parents are qualified persons within the EEA Regs (hopefully not jobseekers/sick as this makes it complicated). If she is a family member of a qualified person(s) the rtr decision will need to be appealed with as much info as possible. Given she came in 2008 she may have gained permanent right to reside already or very near.
Fourthly, I have heard of cases where the DWP allow claims for JSA even at this stage. If she became entitled to JSA then this would simplify everything and make her entitlement to CB and CTC straightforward in future.
Finally, if parents have recieved court papers for possession they should seek independant legal advice from Housing Solicitor for which legal aid is potentially available.
Agree with Sam W - assumptions/inferences must be reasonable and realistic based on the available evidence, they really should drop the deduction to the lowest rate.
Yes she can be a non-dep if she has no R2R - that doesn’t affect it.
the parents should apply to the local Authority Homeless Unit under Housing Act 1996 part vii.
The family will have a priority need because a member of the houshold is pregnant as long as one of the parents has an R2R, working or self employed etc
PS don’t ley the LA fob your client of with a “housing options” plan, a homeless application is a mandatory duty under the above legislation. This will include free advice to challenge the court process via an N244.
You may also be able to challenge the non-dep as a European children are still children until they are 21 unlike UK children who end their childhood at 18.
Thanks for all the input, I have challenged the maximum non-dependent deduction and provided copious amounts of information regarding the non-dep and income.
I have also challenged the I.S. decision as the girl is 20 and her parents are self employed meaning they are qualified persons with R2R and she then becomes a family member as she is under 21 which will hopefully in turn reslove the Habitual Residence issue.
Thanks for clarifying the non-dep issue, I could not find anything relating to not being classed as Habitually Resident and the amount of deduction other than “whose home is normally elsewhere” mentioned in the Shelter guide.
Fingers crossed for a good result :)
was married last year to a non EEA person. The marriage is not registered as she is a Muslim and was married under a Nikaah arrangement;
In Feb 2013 she moved back in with her parents as her husband left her to reside?
.
and finally - i gather you mean that the marriage was in the UK? if so, it SHOULD Have been registered to be recognised as a marrige and thus giving relevant rights. being Muslim is irrelevant to the question - if it’s registered, it’s valid, if it’s not, it’s not, CofE can just do it in churhc and everyone else of any religion or none has to register at register office….
if it was celebrated elsewhere in europe, i would have thought finding out whether it is a valid marriage in the law of that country might be useful, particularly as there’s a child on teh way (i assume it’s the husband’s child) and thus ptentially assisting her getting some finance off him…
Having read the original post, even though the term ‘married’ was used I doubt there was ever a registered marriage. I took it to mean ONLY a nikkah arrangement was performed in the UK.
The phrase “Nikkah” (an Islamic ceremony) losely translates to marriage.
In the UK not all couples who elect a “Nikkah marriage” pursue the official and formal route of registration in the Registry Office.
As such, these couples are wed islamically but not officially “married” under the UK legislation.
However, the UK will generally accept a “Nikkah” as a valid marriage within the remit of the UK law if it is performed abroad in a country that recognises it as lawful. I am not sure if any European countries do.
In essence a “Nikkah” may count if done abroad but not if done here. Sometimes a nightmare for family solicitors to deal with.
Hope that helps anyone that comes across such an arrangement in future.