Post
by saturn 123789 » Mon May 09, 2016 3:34 pm
hI
my husband is exempt from financial requierement because he is carer to his autistic child , according to the calculatin we met the maintenance requirement but i got this in the judge decesion
",,,,,,,,,What is odd about the wording of is the reference to maintaining adequately without recourse to public funds. I assume that that means without further recourse to public funds because, of course, it is implicit that an applicant in those circumstances as described in E-ECP.3.3 will, of course, already be in receipt of public funds, notably Carer's Allowance and Disability Living Allowance so it is strange wording, in, my judgment, why (b) should be drafted in the way it is without specifically making reference to further recourse to public funds.
Several other questions arise, as I see it, in this case to try to determine, as it were, the correct and proper way forward and whether the Rules were met. At Taylor House, on behalf of the Respondent, ECO was content to say that the comparator could be the benefit levels that are obviously well known and he recited
those and provided a document setting out the various rates that a couple can get for Income Support with two children and, in particular, a child that is disabled which, of course, is the younger son of the sponsor. If that was the right comparator and the analysis went along the lines that I have set out above then, as I say, the sponsor would be successful.
What concerns me though is the question of whether or not the sum of 2441.51 is indeed adequate if one compares it with the figures that are set out actually in the
Rules for someone who is in work. Those figures are, of course, recited at E-ECP.3.1
(a) and it is 218,600 for the sponsor as-a gross annual income, together with 23,800 for the first child and 22,400 for the second child. That produces, of course, 224,800 per annum. That figure is greater than the amount that is available to the sponsor at
the moment which would be 222,958.52. Is it right and proper, therefore, to conclude that the sponsor's current level of receipts totalling 222,958.52, falling as they do below 224,800 which would be the figures required of the sponsor and the two children, mean that the Appellant cannot succeed under the Rules? have to say that I have not found an easy solution to that problem but conclude, on balance, that the appropriate way to interpret the Rules generally is to look not straightaway outside the Rules, but to look within the Rules themselves as how best to interpret them. It seems to me to follow that rather than making reference to exterior benefit rates which might have been perfectly appropriate in the past, that the correct course of action in looking at the application of the Rules is to make reference to the figures
that are actually contained there and that, of course, produces E24,800 as being the minimum necessary. If I am right in that analysis, and I do indicate some real
misgivings about whether that is the correct course of action, then regrettably, and .1 stress that, the Appellant does not succeed because there are insufficient funds."
