Delays accessing universal credit for claimants with National Insurance Numbers

• Overview 
• Background facts 
• High Court / Upper Tribunal - Legal issues  
• Upper Tribunal decision
• What can a claimant in a similar position do?

Overview

CPAG filed a judicial review claim on behalf of Ms Bui (the First Claimant) 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 was linked with a separate judicial review filed on behalf of Ms Onakoya (the Second Claimant) (represented by Central England Law Centre) and the two cases were heard jointly before a 3 judge panel on 20 May 2022. Judgment of the Upper Tribunal, dismissing the application for judicial review, was given on 19 July 2022. Judgment was given by the Upper Tribunal on 19 July 2022, dismissing the applications for judicial review. 

The claimants applied for permission to appeal and this was granted by the Court of Appeal on 5 December 2022. The case was heard by the Court of Appeal on 30 March 2023 and judgment given in favour of the claimants on 25 May 2023. SSWP made an application to the Court of Appeal for permission to appeal, but this was refused on 13/06/2023. The Supreme Court has also now refused permission to appeal, meaning that the Court of Appeal decision must be implemented by SSWP.

Background facts

CPAG's client, the First Claimant, is a lone parent Vietnamese national, with a young 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 First Claimant applied for UC in January 2021. Her entitlement to UC was approved and her identity was verified. However, the First 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.’ She was not offered a New Claim Advance. 

The First 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 First Claimant had still not received any payment of benefit. During the time in which she was waiting for her UC, the First 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. After pre-action correspondence was sent on her behalf, the First Claimant was paid UC. But she continued with her 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’.

High Court / Upper Tribunal - Legal issues 

The First Claimant argued 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 First Claimant argued 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.

At first instance, the First Claimant also argued 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.

Also at first instance, the First Claimant argued 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 First Claimant argued that the NINO rule is not a necessary or proportionate means of achieving this end. For the same reasons, the First Claimant argued 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.

Upper Tribunal decision

The Upper Tribunal considered that, as a matter of statutory interpretation, s1(1B)(b) SSAA 1992 requires not simply that an application for a NINo has been made, accompanied by evidence or information which purports to be of a nature which would enable a NINo to be allocated, but rather that the information/evidence is actually verified to ensure that it is sufficient to enable a NINo to be allocated. The arguments in relation to A1/P1 ECHR and the Equality Act 2010 were also dismissed. 

Read the Upper Tribunal's judgment

The Claimants appealed the decision of the UT on 3 grounds:

1. Reg 5(1) of the Payments on Account Regulations governs advance payments of UC and provides that advances can be made where a claim has not yet been determined, the claimant is in financial need and it seems likely that the conditions of entitlement to UC are satisfied. SSWP's position that the 'likely that the conditions of entitlement are satisfied' condition can never be met until the verification carried out during the NINo allocation process is wrong. 
2. The UT was wrong to conclude s.1(1B)(b) SSAA 1992 requires that information of evidence provided by the claimant is formally or fully verified before the claimant qualifies for UC.
3. The SSWP's practice of not commencing the NINo allocation until every other aspect of a claimant's eligibility to UC has been determined is unlawful. 

The Court of Appeal allowed the appeal on the basis of Ground 1, and dismissed Grounds 2 and 3. 

The Court held at para 79 of the judgment:

The scheme of the [advance payment] provisions contemplates that in a case where a claimant’s claim has not yet been determined and the claimant is in need the Secretary of State will consider whether it appears likely that the conditions of entitlement are met; and it seems to me that this is just as much so in a case where the claimant does not have a NINo as in the case when they do. In my judgment therefore the Secretary of State’s practice in never considering whether this is likely in a case where the claimant does not have a NINo is flawed.

Lord Justice Nugee went on to emphasise that it is for the SSWP to now decide what administrative arrangements to put in place. 

Read the Court of Appeal's judgment

What can a claimant in a similar position do?

If you or someone you are advising does not have a NINo and after claiming UC have not been offered a New Claim Advance or have been refused a New Claim Advance, please get in touch by emailing [email protected] 

Additionally, if you or someone you are advising has been waiting longer than 5 weeks since you claimed UC and have not yet received your NINo or received any UC, please also get in touch with CPAG at [email protected]