HB & CTB (Brit with foreign wife) statutory reference

[Mike338]

Seeking regulations and authorities (if possible) about the following...

I am British born, 58, with considerable legal experience (long ago) in courts and tribunals for clients of my business rescue and accounting firm (it stopped during 1999). A lifelong asthmatic, at a detailed medical assessment during Spring 2010 I was told I had severe COPD. Deteriorating asthma and bad divorce pre-2000 already had a disastrous effect upon my income. I have since 2000 lived happily in Council housing. I have occasionally claimed and received HB and CTB since then, including 2009-2011.

As a result of changed circumstances I provided many free services, including to postgraduate students with lectures, course-work, dissertation, and immigration assistance (duly signposted where necessary). A mature student and me formed a relationship during Spring 2007, she graduated later that year and we married Christmas Eve 2009. A Chinese national originally arriving Summer 2009, she adhered strictly to UKBA rules and regs. She is now 35. She has maintained employment since graduation. She hopes to take her "marriage visa" to the next stage during March 2012, having passed the two year qualification period. She maintains £1,000-2,000 in her bank account built up from net income of about £750 each month so that as an individual she can demonstrate never having to rely on government funds. Also, to travel to her aged parents in China in event of emergency (for example, spinal accident as a result a her mother falling last year). Additionally, she is paying for necessary medical treatment here (not anything cosmetic like a boob job!). She does not have children -- we do not have children with us (my two from previous marriage are in late 20s).

The local authority decided to reclaim HB and CTB between 11/01/10 and 08/08/10 on the basis of the marriage, my wife's earnings displaying an overpayment. My position is that the decision is incorrect because they have failed to adequately take her legitimate expenses into account. I appealed. Before I appealed I invited the local authority to put her name on my Council tenancy. They refused on the basis she must first pay the Council disputed charges, thus leaving me as sole tenant although my spouse lives with me.

[Inherent warning about tribunals here...] I began opening my appeal only to be told by the Tribunal judge to be quiet whilst the respondents made a case. Then, amongst other things, a refusal to allow me to call a witness on the basis that "My friend (the judge's friend) Mr [X] and me can sort it all out". I lost count of the interruptions to my case. I submitted that it was my appeal and I was subject to a series of unnecessary barriers preventing me leading it, to which the response was more or less "so what". It was at that stage I sharply informed the Tribunal of my legal past, that I had drafted and privately introduced legislation now statute, had recorded authorities in cases I had presented, that under no circumstances would the appeal continue before the present hearing because it had become a grossly unfair hearing, that the judge must direct himself to adjourn to another date, he being incompetent (which he did -- at the same time as suddenly discovering some respect). I had heard about this type of conduct in a Tribunal but have never experienced anything like it in HMRC, Employment, Lower Court, Upper Court and Inner House proceedings. Shocking.

Against this background, the Tribunal refused to deal with one issue as too complex -- which I am hoping people here can shed some light upon.

On the benefit side of regulation, R25 of the Housing Benefit Regulations (2006) clearly states that income of a spouse must be taken into account when assessing a UK citizens benefit. Those regulations do not appear to state what expenditure, primary or other, should be taken into account. I (nor the respondents' representatives, they assert) can find authority on the subject. On the immigration side of regulation, a visa foreign national with leave to remain on the ground of marriage to a UK national has "no recourse to public funds" (more recently stated as "no public funds"). Therefore they must set aside sufficient from their income to pay for emergencies, travel to their homeland, visa charges, medical expenses when not free, and the necessities of life such as food.

The respondents say they are entitled to take everything of a foreign national's earnings into account, even if it leaves the person destitute. Although themselves not having any rights to financial assistance the foreign national must meet the State's obligations to the home national.

I believe such a position flouts everything intended of laws regarding basic protection of the person. My wife has nothing left each month after setting aside sufficient to meet obligations under her visa, medical fees, and for subsistence. She does not spend on luxuries. Also, I feel awful because although once regarded as more than self sufficient (miffed at being treated so after paying lots of tax over the years), I am now in the position of negatively affecting her. We married for reasons of love, not practicality nor self-interest.

Anyway, it could be I have inadvertently caused a mighty foul-up, one that would not exist in "normal law".

End of somewhat convoluted circumstances (apologies). And so my pleas for assistance...

Are there regulations or authorities that refer to the amount a local authority must take into account from a visa foreign national wife's earnings as legitimate expenditure? Or is there authority regarding a reasonable approach to expenditure and necessary deductions from earnings? Is there authority to the effect that a person without recourse to public funds cannot in turn be used as a source of reducing public funds to a spouse? To what extent does my wife have rights to set aside emergency funds in keeping with her visa obligations, but not additional savings?

Grateful for any feedback!

I shall report the results here for those experiencing similar issues in future.