National insurance numbers and universal credit

Date: 
12 January 2022
Issue: 
R (Bui) v Secretary of State for Work and Pensions UA 2021 000580 JR

Case nameR (Bui) v Secretary of State for Work and Pensions UA-2021-000580 JR

Current status: CPAG filed a judicial review claim in the High Court on 9/7/2021.  Permission to apply for judicial review was granted on 17/9/21 and the matter transferred to the Upper Tribunal exercising its judicial review jurisdiction on 13/12/21.  The matter has been listed for hearing before a 3 judge panel on 20 May 2022.

Overview

This is a challenge to the policy of the Secretary of State for Work and Pensions (SSWP) that she will not make payments of universal credit (UC) unless and until a claimant has a national insurance number as opposed to simply having applied for one (the ‘NINo Rule’).  Following the grant of permission to apply for judicial review on 17/9/21 and transferral of the matter to the Upper Tribunal, the case has been listed for hearing before a 3 judge panel on 20 May 2022.

Background Facts

The Claimant is a lone parent Vietnamese national, with a one-year-old child. In November 2020, she was granted limited leave to remain. Prior to being granted limited leave to remain, she was not entitled to have recourse to public funds and she was not employed, so she did not have a NINo.

The Claimant applied for UC in January 2021. Her entitlement to UC was approved. However, the Claimant was then told, via her UC journal, to ‘speak to the National Insurance number team’ and given a phone number to call. She called the number and was told a form needed to be sent to her by the DWP. She recorded that advice on her UC journal. She was told in response, ‘universal credit staff are not involved in the issue of National Insurance numbers.’

The Claimant attempted to apply separately for a NINo in March 2021. Her application was accepted and she was issued with a temporary reference number, which she recorded on her UC journal.

By May 2021, the Claimant had still not received any payment of benefit. During the time in which she was waiting for her UC, the Claimant’s only regular income was £55.95 per week, paid to her by social services. She received occasional extra money from a friend. From that sum she had to try to meet the subsistence needs of her and her child. She lived in emergency temporary single-room accommodation provided by social services. If she had been paid UC instead of social services support, her available subsistence income would have been almost £100 per week more, and she would also have been able to pay to rent suitable accommodation for her and her child. CPAG are bringing a judicial review to address the wider systemic issues caused by the ‘NINo rule’, as CPAG have seen an exceptionally high number of cases where claimants’ UC payments have been delayed because of the ‘NINo rule’.

Legal issues

The Claimant argues that the ‘NINo rule’ is unlawful as it runs contrary to the purpose of legislation. Section 1 of the Social Security Administration Act 1992 (SSAA 1992) states that the conditions for entitlement to benefit can be satisfied if a claim for benefit is accompanied by a NINo, information or evidence enabling the national insurance number that has been allocated to the person to be ascertained, or if “the person makes an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated” (s1B(b) SSAA 1992). The Upper Tribunal in Social Security Commissioner's Decision CH/4085/2007 [2008] UKUT 14 (AAC) held that “there is no requirement that a National Insurance Number is allocated before a benefit is awarded” and “it is sufficient that an application has been made.” The Claimant argues that the ‘NINo rule’ runs contrary to the purpose of legislation, as the SSAA 1992 states that applying for a NINo and providing evidence or information sufficient to enable one to be allocated is sufficient to claim for benefits.

The Claimant argues that the SSWP’s failure to make payment of UC as a result of the ‘NINo rule’ breached the Claimant’s right to peaceful enjoyment of her possessions contrary to Article 1, Protocol 1 ECHR. The circumstances in which the SSWP may suspend payment of benefits are set out in Section 44 of the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013. This does not include circumstances where a NINo has not been allocated.

The Claimant argues that the ‘NINo rule’ is indirectly racially discriminatory, contrary to s19 and s29 Equality Act 2010, because it has a disproportionate negative effect on non-UK nationals compared to UK nationals. The SSWP states that the NINo rule minimizes fraud risk. However, the Claimant argues that the NINO rule is not a necessary or proportionate means of achieving this end. For the same reasons, the Claimant argues that the NINo rule is contrary to Article 14 of the European Convention on Human Rights in conjunction with Article 1 to the First Protocol (A1P1) and Article 8 ECHR and is therefore unlawful under section 6 Human Rights Act 1998.

What can a claimant in a similar position do?

If your claim for benefits has been refused because you have not been allocated a NINo or if you are an advisor supporting someone facing this issue, please get in touch by emailing [email protected] to try and get the matter resolved as quickly as possible. You can also find template letters here that you can use to challenge a refusal to pay UC or a delayed payment of UC because a NINo has not been allocated.