Income support  [2004] UKSSCSC CIS_1159_2004 (18 May 2004)

1.	This appeal, brought with my leave, succeeds, but not in a manner that helps the claimant.  The decision of the tribunal on 24 11 03 was erroneous in law as described below, but I am able under s14(8)(a)(i) of the Social Security Act 1998 to replace the tribunal’s decision with my own, to the same effect.  The claimant was entitled to a severe disability premium (SDP) from 23 9 02, the date from which he was awarded attendance allowance, but is not entitled to SDP from 9 2 03 as his wife came to live with him on that day. 

2.	The claimant was born on 3 5 31, and he receives minimum income guarantee (formerly income support).  When he was awarded attendance allowance from 23 9 02, he had no other adult living with him, so was entitled to SDP from that date under paragraph 13(2)(a) of Schedule 2 to the Income Support (General) Regulations (ISGR). But from 9 2 03 his wife came to live with him.  So from then on he had a “partner”: under ISGR regulation 2(1), the other member of a married couple. 

3.	It is also a qualifying condition for SDP under paragraph 13(2)(b)(iii) that there should be no adult non-dependants living in the claimant’s household.  The tribunal decided the appeal on the basis that the claimant’s wife was such a non-dependant, but the Secretary of State’s officer points out that this is wrong because ISGR regulation 3(2)(a) says that a member of a claimant’s family cannot be a non-dependant.  He is right, the ground for the tribunal’s decision was therefore wrong, and I set it aside. 

4.	However, as the Secretary of State’s officer also points out, where an attendance allowance recipient has a partner, then unless she also gets attendance allowance, or is blind, he can no longer receive SDP: paragraph 13(2)(b)(ii) and 13(2A).  There is no doubt that the claimant’s wife is a “partner” who does not fall within either of the exceptions.  So the effect of the tribunal’s decision was right, even though the wrong reason was given, and I substitute my own decision to the same effect, though for different reasons.     

5.	The claimant’s argument has always been that this legal scheme of things is unfair where, as here, his wife is not entitled to minimum income guarantee, nor is he entitled to any amount for her, because she is a person subject to immigration control under s115 of the Immigration and Asylum Act 1999.  The claimant is a “partner of a person subject to immigration control” and as such under regulation 21(3) of and paragraph 16A of Schedule 7 to ISGR, there is a nil applicable amount for her.  But no appeal against the refusal of minimum income guarantee is before me, and I cannot deal with it.  In any event it has no bearing on the law relating to SDP, which is as set out above.  The claimant’s circumstances most certainly have changed: he now has his wife living with him, and able to give him the care he might previously have had to pay for.  There is absolutely no foundation for his assertion that the SDP provisions are ultra vires.         	

6.	Since the tribunal’s hearing the claimant’s wife has been given indefinite leave to remain in the UK.  This may or may not have an effect on the minimum income guarantee position.  But it can have no effect on the present decision.

							(signed on original)		Christine Fellner
												Commissioner

												18 May 2004