HB: husband and children have no leave to remain

A client has just been granted leave to remain and now has recourse to public funds. Her husband and children have not yet had their cases determined (despite all 4 applications being submitted together).

How should she deal with her husband and children on the HB application? I’m concerned that including them could affect the outcome of their immigration applications. Would it be good enough not to include their names in the section for other people in the household, and add an explanatory note with their details, stating explicitly that she is NOT seeking to include them in the claim?

CPAG 1502 - having someone else’s benefit increased for you counts as recourse fo public funds. I think the LA would have to treat you as a couple though, so either you advise your client to not declare she’s one of a couple, which is misrepresentation, or not claim.

I can’t see a way around this.

Is the client now able to claim IS/JSA/ESA? Those claims can be paid at the single person rate where a couple have mixed immigration status.

If so and she claims HB, she will in any event be entitled to maximum HB via passporting - and no additional public funds (and it’s the additional public funds that’s crucial) will be paid in respect of the husband due to his being included in her HB applicable amount.

If she cannot claim IS/JSA/ESA due to either her own or her husband’s earnings then this will result in additional public funds being paid in respect of the husband if she claims HB. I have never heard of an LA assessing HB at a single person rate where a couple have mixed immigration status and there is no legal power for them to do so. Whilst I note the post above, this is not something I would wish to rely on.

In respect of CTR/CTB, it’s not possible to avoid the additional public funds problem via IS/JSA/ESA passporting - the presence of the husband means that what would otherwise be a 25% reduction in council tax liability being lost, so inevitably additional public funds will be paid out if a CTR claim is made.

However;

1. Although HB and CTR are claimed together, the client could ask to claim HB only - though the LA might jib at this, it’s entirely possible (i.e. one can claim CTR only where one has no liability for rent). This would avoid any additional public funds being paid out due to the CTR claim.

2. I always advise clients to seek specialist immigration advice before claiming in these situations - it may be that the Home Office does not take any action over the relatively small amount of additional CTR that would be paid (if it is only CTR and not HB too) but I simply do not know. An immigration specialist should be able to advise on this.

3. It doesn’t sound like the kind of case where HB/CTR is going to be crucial - i.e. where the client has no restictions on benefit entitlement but has been joined by a partner who has been granted entry/visa subject to the condition that the client can accommodate and support them. I’d advise the client/husband to get specialist immigration advice on this before claiming - it may be that the decision on their applications is imminent and will not be affected in any event by the client claiming.

Really helpful replies. Thanks!

It’s been overtaken by events now though - the whole family have got refugee status, leave to remain etc and all is hunky dory. Backdated tax credits all round!