Stewart Wright maps out where the requirement to have a national insurance number impacts on benefits and tax credits, and indicates where some legal challenges may arise.
The starting point is easy enough. Under sections 1(1A), (1B) and (1C) of the Social Security Administration Act 1992, a person is not entitled to most DWP benefits 1 (or housing benefit (HB) or council tax benefit (CTB)) unless s/he and any other person for whom s/he is claiming the benefit either:
a) provides her/his national insurance number (NINO) with the claim and evidence that it is hers/his; or
b) provides information or evidence enabling the NINO which has been allocated to her/him to be ascertained; or
c) applies for a NINO to be allocated accompanied by information or evidence enabling a NINO to be allocated.
The legislative scheme allows for certain people to be exempted from this NINO requirement. The two key exempted categories are children and young people in respect of whom HB/CTB is being claimed, and hostel dwellers claiming HB.
Applications for a NINO have to be made to a Jobcentre Plus office, and applying for benefit will not in itself constitute the making of such an application: Secretary of State for Work and Pensions v Wilson  EWCA Civ 882 ((RH) 7/06). So if a person does not yet have a NINO what s/he must be able to show is that s/he has applied for one and provided sufficient information with that application to enable a NINO to be allocated. As will be seen from below, it is for the authority to whom the claim for benefit has been made to determine - in deciding the claim for benefit - whether an application for a NINO has been made and whether it was accompanied with sufficient information.
For tax credits, the NINO requirement is in secondary legislation only, namely regulation 5(4) of the Tax Credits (Claims and Notification) Regulations 2002, which differ in one respect from the NINO requirement for DWP benefits. This is found in regulation 5(6) of the same Regulations, which states that the NINO requirement (i.e., effectively, a-c above) does not apply if the Revenue is 'satisfied that the person or persons by whom the claim was made had a reasonable excuse for making a claim which did not comply with [the NINO requirement]'. How a claimant may be able to test the view of the Revenue on this exception on appeal is dealt with further below.
Scope of NINO requirement
It is now plain from the Court of Appeal's decision in Wilson  EWCA Civ 882 ((RH) 7/06) that where section 1(1A) of the Social Security Administration Act 1992 talks about the NINO requirement being met both by the claimant and any other person 'in respect of whom he is claiming benefit', that means in a case of a couple that the claimant's partner has to satisfy the NINO requirement as well. That remains the case even where the partner is a person subject to immigration control and therefore her/his inclusion on the claim could not affect the level of entitlement.
The same result must follow for couples, arguably, from the tighter language used in regulation 5(4) of the Tax Credits (Claims and Notifications) Regulations 2002, because of its requirement that the NINO requirement must be met by 'every person by whom the claim is made'. However, that language would seemingly preclude imposing the NINO requirement on any children of the tax credit claimant: a result which would be on all fours with the exemption from the NINO requirement that used to apply for children in respect of income support and jobseeker's allowance claims.
Since 11 December 2006, the regulations concerning allocation of NINOs have been amended to prevent NINOs being allocated to persons who have no right to work in the UK. This has been done by requiring the person applying for a NINO to provide the Jobcentre Plus with a copy of an immigration document which shows s/he has a right to work in the UK.
It may be arguable, however, that this requirement is unlawful. The starting point is that the enabling Act - section 182C of the Social Security Administration Act 1992 - has always been silent as to the extent of the Secretary of State' obligation to issue a NINO if an application for one is made to her/him. All it says is that a person may be required by regulation to apply for a NINO to be allocated to her/him (section 182C(1)), that that application may be required to be made to the Secretary of State (section 182C(1A)), and an application for a NINO 'shall be accompanied by information or evidence enabling such a number to be allocated' (section 182C(2)). Even assuming that the Secretary of State can lawfully ask for evidence of whether the applicant is legally able to work in the UK, there is arguably nothing in the terms of section 182(2) to say that the Secretary of State can only allocate a NINO if that information is present. An important consideration here is arguably that the 1992 Administration Act is, by its name, only concerned with the administration or procedure within the social security scheme; as such it cannot provide a lawful basis for creating or restricting substantive rights, either inside or outside the social security scheme.
An alternative argument is that the terms of section 182C(2) highlighted above do not extend to information or evidence beyond the most basic of identity issues which 'enable' a NINO to be allocated. Arguably all the NINO has ever been is a form of limited identification tag, which enables claims for benefits (and payment of national insurance credits) to be administered smoothly and correctly. Whether a person is able to work lawfully in the UK is arguably irrelevant for these limited purposes, and can (and is) dealt with elsewhere in the substantive immigration and benefit rules. This may be illustrated by taking the example of the very issue which the December 2006 changes were introduced to address. It is unarguable that these changes introduced an additional requirement. However, there is nothing to say that before the change a NINO could not have been properly allocated to such a person: indeed that is what the change has been brought in to counteract. But if the information provided before December 2006 'enabled' a NINO to be allocated to such a person, why now should the lack of 'permitted to work' evidence mean that under the terms of the SSAA 1992 a NINO cannot be allocated? The crux to the answer arguably lies in what the purpose of the NINO is; and if it was only ever intended as an identification number enabling the administration of the social security scheme to operate smoothly, then arguably considerations of whether the person has a right to work are irrelevant.
Appeal rights and NINOs
As is evident from what has been said above, a number of NINO questions may need to be addressed by the benefit or tax credit authority in deciding whether a valid claim has been made. This may include, whether the NINO presented with the claim is that of the claimant, whether the information presented with a claim will enable her/his NINO to be identified (if it hasn't been provided with the claim), whether the claimant has applied to the proper authority for a NINO to be allocated and provided sufficient evidence or information with that application to enable a NINO to be allocated, and, for tax credits, whether the person had a reasonable excuse for making a claim which did not comply with the NINO requirement.
All of these questions go to whether the person may be entitled to benefit or tax credits and so they have to be answered by the DWP, local authority or the Revenue in deciding the claim. However, if answered negatively, the issue of whether these questions may be raised on appeal may depend on which 'benefit' is in issue.
DWP benefits and HB/CTB
For all DWP benefits where the NINO requirement arises, and for HB/CTB, if the claim has been refused on a NINO question, then that question can be considered afresh by the appeal tribunal on any appeal: CIS/345/2003. CH/1231/2004 makes it clear that this applies equally to HB/CTB appeals, and emphasises that it is not necessary for the decision on the NINO to have been made at the date of claim: the tribunal can (and must) itself decide whether the information provided with the NINO application was sufficient to enable a NINO to be allocated.
In CIS/345/2003 the commissioner went further than the three situations set out at (a) to (c) at the beginning of this article, and said that on an appeal against a refusal of benefit the appeal tribunal may also consider whether a positive decision to refuse to allocate a NINO was properly made. In the context of an appeal against a refusal of benefit, which itself is based on a positive decision refusing to allocate a NINO, it is suggested that the decision is clearly correct. The NINO refusal decision arises as an issue to be determined by the tribunal, on an appeal against the refusal to award benefit under section 12(1)(a) of the SSA 1998, as a decision of the Secretary of State:
- under section 182C of the SSAA 1992; and/or
- pursuant to section 1(1B)(b) of the SSAA 1992, on which the Secretary of State has drawn a negative conclusion about the sufficiency of the information or evidence submitted with the NINO application, and on which the tribunal can draw its own conclusions afresh so as to decide whether a NINO should have been allocated or refused.
Regrettably, the position is less clear with tax credits legislation. It is true that the NINO requirement is the same as for DWP benefits, except for the alternative rule that, if the NINO requirement could not be satisfied on the tax credit claim, the person had a reasonable excuse for this deficit. However, the initial decision on a tax credit claim is governed by section 14(1) of the TCA 2002, which reads, '[o]n a claim for a tax credit the Board must decide (a) whether to make an award of a tax credit'. This wording of section 14(1) is important as the right of appeal to an appeal tribunal only arises 'against a decision under section 14(1) . . . '.
Does the decision that there has been no valid claim (because of failure to meet the NINO requirement) encompass a decision on a claim about whether to make an award or is it merely a decision that there has been no (valid) claim on which an award decision can be made? To date, the answer is the latter; with the analysis being that the award decision only arises under section 14(1) on a (valid) claim, and so if there is no such claim then there is nothing for section 14(1) to bite on: CTC/31/2006. The commissioner in that decision also goes on to say that on the facts of the appeal before him (whether tax return can be treated as a claim for tax credits), Article 6 of the European Convention on Human Rights did not require any other reading of section 14(1) to be given, so as to enable a right of appeal to arise.
It is respectfully suggested that the decision in CTC/31/2006 is wrong. As R(IS) 6/04 recognised the issue of whether a valid claim has been made is axiomatic in social security, as the scheme places it at the heart of whether any entitlement can arise. The same applies in the tax credits scheme. In these circumstances, to read section 14(1) TCA 2002 as giving rise to a prior, unappealable decision as to whether a valid claim has been made arguably places too strained a construction on that section. Even if that is the natural construction of section 14(1), however, where issues of fact and judgment are called for (e.g., has an application for a NINO been made, what information was provided with it and was it sufficient, or does the claimant have a reasonable excuse for not meeting the NINO requirement), it is respectfully suggested that Article 6 of the ECHR requires those issue to be subject of scrutiny by an independent appeal tribunal.
However, realistically, appeal rights on the NINO issues may be likely to be denied unless another commissioner departs from the conclusion in CTC/31/2006. The difficulty in this areas is then compounded by the Revenue's retrograde, and clearly unlawful, view about it, and not the Tribunals Service, being the body which decides whether an appeal is valid or not, despite having had R(H) 2/07 drawn to its attention. So, if any NINO appeal issue is to be got before the Social Security Commissioners on tax credits, it will probably involve circumventing the Revenue in the first place and sending the 'appeal' direct to the Tribunals Service. If advisers have any such NINO appeals, then they may want to get in touch with CPAG.
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- 1. For example, winter fuel payments are not caught: see section 1(4) SSAA 1992 and CIS/2337/2004