Universal credit couple claims where one member has no recourse to public funds
A how-to guide on universal credit couple claims where one member has no recourse to public funds
This article was originally published on 10 September 2019. It was updated on 4 March 2021, 4 December 2021, 13 June 2023 and 22 February 2024.
The universal credit (UC) regulations state that a single claim may be made where one member of a couple is a person subject to immigration control (PSIC).¹ This is also confirmed in DWP guidance.²
A PSIC can be someone who requires leave to enter or remain in the UK but doesn’t have it; does have leave to enter or remain but this is subject to a no recourse to public funds (NRPF) condition; has leave to enter or remain in the United Kingdom given as a result of a maintenance undertaking; or whose leave has been extended whilst appealing against a decision to vary, or refuse to vary, their leave.
There are exceptions to the above which are covered in Home Office Guidance (please see footnote 5) and CPAG Benefits for Migrants 14th Edition Ch.8. Specialist immigration advice should always be taken before claiming benefits that count as ‘public funds’ ( please see the Home Office guidance) which include a partner with NRPF.
A condition of no NRPF is typically given to those with limited leave as visitors, workers, and the majority of spouses, partners or other family members. Prior to 1 January 2021 EEA/ Swiss nationals and their family members (including non EEA nationals) could not have a NRPF condition and did not require leave to enter or remain in the UK. However this has changed and the above (including those in the UK before the end of the transition period at 11 pm on 31 December 2020) can now be PSIC. This is a complex area and is also covered in the Home Office Guidance; you may also find my other article on Brexit and Welfare Benefit Entitlement useful.
As pointed out in the above UC guidance, the standard allowance used to calculate entitlement to UC is that of a single person. However, the amount of UC awarded will still have regard to any income and capital received and possessed by the disregarded member of the couple with NRPF.³
Some of the implications of taking into account earned income for the partner with NRPF are discussed later.
In practice the DWP will insist that both members of the couple make an online claim ( or add the partner with NRPF to an existing single claim ) and that the member with NRPF also attend a verification interview (although they will not be required to attend a claimant commitment interview).
The DWP have responded to a freedom of information request concerning the above;
However, under the UC rules, if someone is part of a couple, they and their partner need to make a joint claim for UC. The claim form may be completed by one member of the couple, but that person must enter the details for both members of the couple. If one member of the couple isn’t eligible for UC, we will convert the claim to a single person claim upon processing.
The above presumably refers to the power to treat a joint claim as a single claim in certain circumstances, which includes where one member of a couple has NRPF.⁴
Also it is clear, in our experience, that the DWP will refuse to process a claim unless it is made jointly. Advisers and clients are understandably worried that this may give the impression that the person with NRPF is seeking to claim public funds.
However in our opinion this will not amount to a breach of the public funds condition. The latter will only be breached if the ineligible person — i.e. the person who is subject to the condition — receives public funds, or their partner receives additional public funds due to the presence of the ineligible person which they would not otherwise have received. Provided the DWP do ‘convert’ the claim to a single claim on processing and before payment, this should not happen.
Where a partner in a couple is told to claim and there is full disclosure of their NRPF status, then they will only be paid through administrative error. Home Office Guidance on public funds⁵ at page 49 states, in relation to future immigration applications that;
‘It is not always appropriate to refuse an application for permission to stay on the basis that a person who is subject to an NRPF condition has accessed public funds.
An application for permission to stay should not be refused if:
• an applicant has received public funds as the result of an administrative error.’
We would advise that UC payment be made into the client’s bank account and not that of the person with NRPF. Also where they are supported by a partner on benefits there can be problems in meeting financial requirements in the Immigration Rules for subsequent applications to extend their leave, or applications to bring other family members to the UK. Also, the person with NRPF ought to take advice on whether they should apply to have the condition lifted, though sometimes this may mean they are at risk of being shifted to a route with a longer period to wait before settlement is given.
If a single claim has already been ‘closed’ due to a refusal to make a joint claim or the partner with NRPF has refused to make a claim to link to the existing single claim which is then ‘closed’, this is a refusal of benefit and we would advise an appeal ( after mandatory reconsideration). The grounds would be that Reg. 3(3)(e) UC Regs 2013 clearly allows a single claim in these circumstances. However, we would also advise that the client and partner make a new joint claim in the meantime.
Although the income of the person that has NRPF will be taken into account, this will be subject to the 55% taper and a work allowance if appropriate as the couple are treated as ‘joint claimants’ for this purpose.⁶ A NRPF condition can be breached even if the person with NRPF does not get public funds, but their presence results in extra public funds being paid to a partner who has recourse. However the rule allowing a work allowance to be included (if appropriate) for a single award should not matter — in many cases the income of the partner with NRPF may still be above the work allowance and hence the presence of the partner is resulting in less UC being paid to the single claimant. If the income of the partner is below a work allowance so that none of it is taken into account, again the presence of the partner in itself is not resulting in more public funds being paid to the single claimant, and Reg.22(3) of the UC Regs 2013 specifically allows the work allowance to be paid in this situation. However it may be advisable to seek specialist immigration advice in this situation.
The earnings of a partner with NRPF can also be taken into account to relax work related requirements for the UC claimant under what the DWP call the ‘administrative earnings threshold’⁷ and to escape all work related requirements under the ‘conditionality earnings threshold’.⁸
The earnings of a partner with NRPF can also be taken into account when calculating if the minimum income floor (MIF) should be applied to a self- employed UC claimant.⁹ This would not breach a NRPF condition as the earnings of the partner with NRPF are taken into account in any event. The MIF itself won’t apply to a self-employed partner with NRPF¹⁰— however their individual earnings will be combined with the claimant’s self-employed earnings.
There is an exemption from the benefit cap if a couple’s joint earnings exceed 16 hours pw x the appropriate national minimum wage, converted to a monthly amount.¹¹ The income of the partner with NRPF can be taken into account for this. If the only reason that the UC claimant escapes the benefit cap is due to the income of the partner with NRPF, this could be seen as a breach of the NRPF condition due to the presence of the partner. A benefit calculation would show if the UC entitlement of the claimant would be higher by escaping the cap (but with the partner’s income still taken into account), compared to what entitlement would be if the partner’s income were ignored and the claimant was subject to the cap. If entitlement would be higher due to the presence of the partner then caution would be needed before advising a claim and always refer to an immigration specialist if in doubt.
The above scenarios apply as, even though the claim is a single claim, the client is still a member of a couple. The income of the partner with NRPF is taken into account and is included whenever the UC regulations refer to a couple’s combined earned income.
With regard to the housing costs element, if the UC claimant is a sole tenant the presence of a partner with NRPF would not alter the amount payable. Also no non dependent deduction from the housing costs element can be made for a partner with NRPF.¹² However there is an exception if the claimant, but for the presence of the partner, would be subject to the one bedroomed shared accommodation rate¹³— if so, the UC claimant will receive the one bedroomed shared accommodation rate, whether they are a sole tenant or a joint tenant with the partner with NRPF.
Otherwise, if the UC claimant is a joint tenant with a partner who has NRPF, their assumed 50% share of the rent is used to calculate the ‘core rent’ for the housing costs element. As the person with NRPF is not part of the UC claimant’s ‘benefit unit’ (see UC guidance on ineligible partners) they are arguably treated as a ‘joint tenant’ rather than a ‘joint renter’¹⁴, even though they are not separately liable to make the ‘relevant payments’. However, both are ‘listed persons’ as they are a couple, so the UC claimant is entitled to 100% of the ‘core rent’.¹⁵
However, as noted in CPAG Benefits for Migrants, where the the UC claimant and the partner with NRPF are joint tenants with other joint tenants, the calculation could result in extra housing costs being payable to the claimant due to the presence of the partner with NRPF.¹⁶ In which case specialist immigration advice would be needed before making a UC claim.
In either of the above cases, it’s important to remember that the housing costs element ‘disappears’ when overall UC entitlement is calculated. Hence if the partner with NRPF has earned income, overall entitlement might still be less and not more due to the presence of the partner with NRPF, even if their share of the ‘core rent’ is included in the housing costs element. So this would involve calculations of entitlement with and without the presence of the partner with NRPF to determine if there may be a breach of the NRPF condition by the UC claimant being entitled to more UC due to the presence of the partner.
If in doubt, always refer for specialist immigration advice before advising a claim for UC in the case of joint tenants.
Finally, council tax reduction (CTR) can be claimed with UC, but the rules are different. CTR is also a public fund; however unlike UC the Local Authority cannot separate the partner with NRPF from the award, and CTR is a single claim with a partner included. This may result in additional public funds being paid to the partner with recourse, which could then breach the NRPF condition. An exception could be if the amount of CTR is the same for the claimant even if the partner is included, for example if the claimant would still be passported to full CTR.
Also there is an additional problem if the person with recourse were entitled to a single person discount in their council tax, in which case CTR is calculated on 75% of liability. If the presence of the partner with NRPF results in the loss of the single person discount, CTR is then calculated on 100% of liability, which could result in additional public funds being paid to the claimant.
Again, specialist immigration advice should be sought before advising a claim for CTR,or indeed in any circumstances where there may be a concern about breaching the NRPF conditions attached to a partner’s leave.
References
(1) Reg. 3(3)(e) UC Regs 2013
(2) ADM Chapter E2 Para E2022.
(3) Regs 18(2) and 22(3) UC Regs 2013 — see also ADM Chapter E2 Para. E2031 (example of Jill and Pete),though the taper rate and work allowance figures are out of date. Please see ADM Memo 20/21.
(4) Reg. 9(1) of The Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013.
(5) Home Office Guidance — Public funds — v19.0
(6) Reg. 22(3) UC Regs 2013
(7) Reg.99(6) UC Regs 2013
(8) Reg.90(3) UC Regs 2013
(9) Reg. 62(3) UC Regs 2013
(10) ADM Ch. H4 Para. H4077
(11) Reg. 82(1)(a) UC Regs 2013
(12) Schedule 4 Para. 9(2)(b) UC Regs 2013
(13) Schedule 4 Para. 27 and 28 UC Regs 2013.
(14) ADM Ch.F3 Para. F3030 and 3031
(15) Sch.4 Para. 24(1)-(3) UC Regs 2013; ADM Ch. F3 Para F3193–3195. For the definition of a ‘listed person’ see Para F3032.
(16) Sch.4 Para. 24(4) UC Regs 2013; ADM Ch. F3 Para F3196 and examples.
Carlos Hagi works in the Welfare Benefits Expert Advice Team at Citizens Advice, with thanks to input from John Donkersley, Immigration Expert.
