Welfare Benefits, Tax Credits, and National Insurance Numbers (NINos)
Updated May 2008

This leaflet is intended for advisers to use as a guide. The law on some of the issues discussed is complex, and advisers will need to seek specialist advice where necessary.

Welfare benefits and tax credits count as public funds and a claim can jeopardise a person's leave to remain in the UK if it is subject to a condition that they have no recourse to public funds. Remember that any claim to the Department for Work and Pensions for benefits, to HMRC for child benefit or tax credits, or application to social services for assistance, will mean the relevant authority will contact the Home Office. Care needs to be taken where the partner is subject to immigration control to make sure that a claim to benefits will not cause any problems of this kind. See p 1342 Welfare Benefits and Tax Credits Handbook for the rules on claims by couples with different immigration statuses.

Who needs a NINo?
What are the NINo requirements?
How do you apply for a NINo?
Things that can go wrong with applying for National Insurance Numbers
Appeal or JR - tactical considerations
Other remedies
Standard letters
Useful addresses

Who needs a NINo?
NINos were originally intended as reference numbers for those paying national insurance contributions. They are now also used for identifying social security claimants.

Problems arise in particular with the following:

• Couples where one is a person subject to immigration control (PSIC) who does not have a NINo, and is not entitled to benefit or tax credits. The rules require a claimant to have a NINo for her/himself and her/his partner even if s/he can't claim any benefit for them.[footnote 1] If the DWP refuses to allocate a NINo for the partner, the whole claim may fail.

• EU nationals, including A8 nationals who do not have NINos for work purposes, but who are entitled to claim certain benefits. This can arise for benefits which are not subject to the right to reside test, in particular DLA, AA and CA.

Asylum seekers should now be allocated NINos by a fast track procedure and be notified of these with the decision letters granting refugee status or leave to remain.

Even if the claimant has a NINo, this does not necessarily prove s/he is who s/he says s/he is, and the DWP or HMRC may still ask her/him to prove her/his identity.

What are the NINo requirements?

For benefits administered by the DWP, housing and council tax benefit and child benefit [footnote 2] under Section 1(1A) and (1B) of the Social Security Administration Act 1992 [footnote 3], claimants are not entitled to any social security benefit, unless they provide either:

• A national insurance number or

• Enough information or evidence for their NINo to be traced or

• an application for NINo to be allocated which is accompanied by information or evidence enabling such a number to be allocated

The claimant must provide this for her/himself and anyone 16 or over s/he is claiming for – ie her/his partner. [footnote 4]

The claimant must also satisfy all the other conditions of entitlement for the benefit s/he is claiming.

Amount
The rules on couples of mixed immigration status claiming benefits vary for different benefits. For example, for income support a claimant is paid at the single rate whereas for housing benefit the calculation includes allowances for all members of the family. For further details see CPAG's Welfare Benefits and Tax Credits Handbook p 1342. In general, a claimant cannot claim any benefit for his/her partner, but (except for pension credit) any income or capital the partner has may be taken into account as if it were the claimant's.

For tax credits, under Regulation 5(4) Tax Credits (Claims and Notifications) Regulations 2002, a claim must include:

• a NINo, or

• information or evidence enabling a NINo to be ascertained, or

• an application for NINo to be allocated which is accompanied by information or evidence enabling such a number to be allocated

This information must be provided for every person by whom the claim is made. If the claimants are a couple the claim is made by both of them.

The NINo requirement does not apply if the Board 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 requirements of that paragraph. (Reg 5(6) TCs(C&N)Regs).

TCTM06110 in the Tax Credits Technical Manual refers. This can be found on HMRC’s website. The guidance essentially says there is no definition of “reasonable excuse”; this is a matter for the discretion of the HMRC officer, which must be exercised fairly and reasonably.

NINo applications for tax credits are administered by the DWP – see below.

Amount paid
For tax credits the rules are different. Couples are entitled to claim tax credits and be paid for both of them and their children if one member of the couple is a person subject to immigration control but the other is not.[footnote 5] Tax credits do not count as public funds in these circumstances.[footnote 6]

How do you apply for a NINo?
The rules say there are times when claimants have to apply for NINos, to either the DWP or HMRC, but there is no requirement for a NINo to be allocated. However, once sufficient information or evidence has been provided in support of an application for a NI No, a duty may arguably arise to allocate one.

The Departmental Central Index (DCI), which is part of the DWP allocates all permanent NINos . The DWP produces a leaflet called “Applying for National Insurance Number” which explains in outline how to apply. The DWP distinguishes between what they call a “benefit inspired” application, and a “work inspired” application.[footnote 7]

The DWP’s guidance on the allocation of NINos has been disclosed pursuant to a Freedom of Information Act request and it can be found at http://www.dwp.gov.uk/foi/2006/oct/SNAP01A.pdf.

The guidance says at paragraph 89 that entitlement to benefit is established before a NINo allocation appointment is made.[footnote 8]

Claimants for both benefits and tax credits need to contact the Jobcentre to apply, or a claim for benefit can be treated as an application. The DCI will contact claimants for an interview at their local DWP Office. They do not usually provide interpreters, but rely on DWP staff who speak other languages.

Claimants will need to show proof of identity. The DWP sets out in its leaflet “How to prove your identity for benefit purposes” what evidence it accepts, such as a valid passport, home office documents, ID card, birth certificate or deed poll. It goes on to set out work, financial, education and other documents that may be acceptable. Photocopies are not usually acceptable, although you can argue they should be accepted if they originals are not available.

All evidence and information should be considered, including the claimant's own statement. It is not usually correct for the DWP to insist on seeing particular documents to the exclusion of others, particularly where those documents are not accessible to the application – for instance when they are held by the Home Office. The interviewer may ask questions about the claimant's education, work and accommodation history, family details and date of arrival in the UK among other things.

Claimants sometimes worry about giving information to the authorities. Claimants should be prepared to take any relevant documents to the interview with them and give as much information as they can to show who they are. Inconsistent spellings of names and wrong addresses on documents can cause problems, although DWP’s guidance does make allowance for this. Corrected documents should be obtained where possible.

For those wanting to apply for a NINo for work purposes. there is a helpline number to call. There are fast track procedures for asylum seekers, whose identities are checked by the Home Office, National Health Service Staff and employees with tier 1 or 2 work permits, ie Company Chief Executives.

Things that can go wrong with applying for National Insurance Numbers

• The DWP may refuse to entertain an application for a NINo at all.

• There can be long delays in arranging interviews.

• The DWP may refuse to allocate a NINo after an interview.

• Benefits or tax credits may be refused if the claimant cannot satisfy the requirement

1. Delay - what can you do?[footnote 9]

If the DWP refuses even to entertain the application, advisers will need to be persistent. The only remedy here will be judicial review. Please see below for more details of what this entails.

a. For all DWP benefits and CB – apply for interim payments.

Claimants can get these if they have claimed benefit but not in the correct way and it is impracticable for such a claim to be made immediately. This should apply to claimants if there is a delay in allocating a national insurance number [footnote 10].

There is no right of appeal against a refusal of interim payments. This can only be challenged by judicial review (JR – see below for more explanation about what this involves).

If the claimant gets interim payments and then it turns out that s/he was not entitled to benefit, s/he will have to pay back the overpayment.

Pending an appeal claimants can only get interim payments if the decision maker thinks they are entitled to some benefit. This is a potential test case issue, and if your client is refused on this basis pending an appeal, see below.

NB You cannot get interim payments of tax credits

b. For housing benefit (private or housing association tenants) – apply for payments on account [footnote 11]

Claimants can apply for a payment on account where it is impracticable for the local authority to make a decision on a claim within 14 days, providing that is not because the claimant has failed to provide information without good cause.

Claimants will have to pay these back if it later turns out they were not entitled.

c. Apply for a crisis loan (CL)

A claimant can get a CL totalling up to £1,000 from the DWP if s/he is without sufficient resources to meet the immediate short term needs of her/him and her/his family, and a CL is the only way serious damage or risk to the health and safety of her/him or a member of his/her family can be prevented. S/he must be over 16, the loan must not be for an excluded item and s/he must be likely to be able to repay it.

Interim payments are usually a better option, because crisis loans have to be repaid, and the £1,000 total is quickly reached if the claimant has a large family.

d. Apply for judicial review of the failure to allocate a NINo

In cases of extreme hardship and/or extreme delay you may be able to apply for judicial review (JR). See below.

2. Refusals of NINos and/or claims

If the claimant applies for a NINo and the DWP refuses to issue one, the claimant can appeal against that decision and against the decision to refuse benefit or tax credits. [footnote 12]

At the same time as appealing any relevant decisions, it would be wise to make further attempts to get a NINo allocated for the claimant or his/her partner.

For DWP benefits – For DWP benefits the decision on the NINo and the decision on the benefit claim are likely to be notified at the same time. On appeal the claimant can raise any issues relating to the NINo requirement or a refusal to allocate a NINo [footnote 13]. This could include whether the claimant provided sufficient information for a NINo to be allocated and therefore satisfied the NINo requirement [footnote 14].

For tax credits – Where the claimant is only claiming tax credits, s/he may get a refusal of a NINo from the DWP and a notification from HMRC that his/her claim has been rejected. The claimant can appeal against the NINo refusal, see above. S/he should also appeal against any refusal or rejection of the tax credits claim and ask for both appeals to be heard together.

The claimant may need to argue that a rejection of his/her claim is in effect a decision to refuse tax credits for the purposes of s 14 Tax Credits Act 2002. This attracts a right of appeal under s 38. S/he can argue that whether discretion should have been exercised to waive the NINo requirement under regulation 5(6) TC(C&N) Regs is either appealable itself or forms part of a decision which can be appealed. [footnote 15]

HMRC accepts [footnote 16] that it is for a tribunal to decide whether there is a right of appeal or not, however in cases of delay or difficulty you may want to send the appeal directly to the tribunal service and ask them to list it for hearing – see below for more details.

Appeal or JR - tactical considerations

Most (but not all) decisions on a claim for welfare benefits or tax credits carry a right of appeal. Generally you cannot apply for JR where there is another adequate remedy available. However if the appeal procedure is too slow to provide an effective remedy – particularly where the claimant has nothing to live on in the meantime – you may be able to apply for JR of the decision. Where there is no decision, or no right of appeal, the only remedy will be judicial review.

Advisers will need to consider whether to try and press for a decision to appeal against, or whether to go for JR.

Appeals have the advantage that the procedure is simple, and free. The claimant does not need help from a solicitor and the procedure is one welfare rights advisers are familiar with. Appeals can be slow, but if you ask for an expedited hearing, this can be dealt with quite quickly in some areas. Ask for an expedited hearing in your letter of appeal, and also ask the Tribunals Service direc [footnote 17], see above. You may need to be persistent as the Tribunals Service can be reluctant to list matters unless they have received the papers from the referring authority.

JR involves making an application to the High Court to challenge a decision of a public authority where it is claimed the authority has acted unlawfully on one or more of a number of grounds. You have to apply for JR promptly and in any event within 3 months of the decision you are complaining about. It is sometimes difficult to pinpoint when the clock starts ticking – if in doubt, seek advice immediately.

JR can be a useful remedy because it is flexible. An application can be made very quickly if the case is urgent. The court also has powers to make emergency interim orders pending a final hearing, for instance, for immediate interim payments. JR can be complex and costly, although claimants are likely qualify for legal aid. A claimant will need help from a solicitor in making any application for JR. In some areas it can be difficult to find solicitors who have the expertise to take on JRs in Welfare Rights.

However, it can help if you write a letter before action threatening JR. Before any JR, a letter before action must be sent to the authority you are complaining about, to give it an opportunity to put things right. In a case involving benefits administered by the DWP, this will be the local DWP Office. In a case involving tax credits, this will be HMRC. A copy of the letter needs to be sent to the solicitors for the DWP or HMRC’s solicitors for tax credits. This can be a very effective way of getting action, without having to go to court.

Any such initial letter should be addressed to the Customer Services Section and copied to the solicitors. You can also write to Customer Services with case studies to put pressure on them to improve administration.

A standard letter is attached for advisers to use as a guide – it needs to be used with caution. The issues on JR can be complex. Any letter needs to be carefully considered so as to avoid compromising future proceedings. It will need to be adapted to particular circumstances. You need to be wary of time limits for judicial review and should be ready to refer claimants on quickly where necessary. However, in some areas it can be difficult to find a solicitor quickly, and so you may find it a useful tool.

Other remedies

Claimant's MP/Ombudsman
You can write to the claimant's MP on their behalf and ask them to help. A standard letter is attached as a guide. You can then make a complaint to the Parliamentary Ombudsman following on from that. An MP's intervention may help put pressure on the local Benefits Office to resolve your client's problem. A complaint to the Ombudsman is generally very slow, but the Ombudsman can award compensation. The Parliamentary Ombudsman can deal with delays and maladministration in the DWP, HMRC and the Tribunals Service. However, complaints about Local Authority maladministration including housing benefit must be made to the Local Government Ombudsman.

Equality and Human Rights Commission
These cases raise issues about race discrimination since in practise the NI no requirements often prejudice ethnic minority communities in particular. Advisers may want to make reference to the DWP's equal opportunities policy when contacting Customer Services. You can contact the Equality and Human Rights Commission to raise these points with them and invite them to take up the issue.

You may find the DWP's publication "Work and Welfare Strategy Directorate and Fraud, Planning and Presentation Directorate: Race Equality Scheme", which can be downloaded from the DWP's website may be helpful in raising issues with the Department.

Campaigning and policy work
If you are finding these problems are widespread in your area, you may want to join together with other local advice agencies in local forums to share information, lobby local MPs, make joint complaints to the EHRC and liaise with Benefit Offices to try and improve administration, and agree policies on matters such as interim payments and Community Care Grants.

Standard letters - download these Word documents

i. Letter before action for DWP benefits (32 KB Word .doc)
ii. Letter before action for tax credits (34 KB Word .doc)
iii. Letter to MP (28 KB Word .doc)

Useful addresses

CPAG, 94, White Lion Street, London N1 9PF www.cpag.org.uk

CPAG’s advice services.

We operate the following welfare benefit advice lines for advice workers and lawyers.

For advisers in the UK:
Telephone 020 7833 4627
Monday to Friday 2-4pm

For advisers in Scotland:
Telephone 0141 552 0552
Monday to Thursday 10-12am

For advisers in any organisation in England with a LSC Contract or Quality Mark at ‘Specialist’ or ‘General Help with Casework’ level (in any area of law):
Telephone CPAG on: 020 7278 2100
Monday and Tuesday 2.00-4.30pm and Wednesdays 10.30-1.00pm.

Equality and Human Rights Commission www.equalityhumanrights.com/pages/eocdrccre.aspx

Public Law Project, 14, Bloomsbury Square, London WC1A 2LP www.publiclawproject.org.uk
Advice Line 0207 269 0578 (Mon and Weds 2-4pm, Tues and Thurs 10-1pm)

Parliamentary Ombudsman, Milbank Tower, Milbank, London SW1P 4QP www.ombudsman.org.uk

DWP Customer Liaison, 5th Floor South 1, Trevelyan Square, Leeds LS1 6EB
Or 1st Floor, Oriel House, 49, High Street, Hull HU1 1QJ
The DWP's leaflets, guidance, and other useful policy documents can be found on their website at www.dwp.gov.uk

HB circulars are at www.dwp.gov.uk/housing benefit/index.htm

(For DWP benefits)
Office of the Solicitor
Department for Work & Pensions
New Court
Carey Street
London WC2H 2LS

(For tax credits)
HMRC Solicitors' Office
Somerset House
London WL2R 1LB

This factsheet was produced by the Citizens' Rights Office at CPAG. It is an updated version of a factsheet drafted in 2003 which drew on ideas and information from the following organisations:

• The Public Law Project

• Leicester Law Centre

• Hammersmith and Fulham Law Centre

• LASA

• The Refugee Council

• Citizens' Advice

 We would also like to thank Kathy Meade at Hackney Law Centre for the information she provided

Footnotes

1.The claimant’s partner must satisfy this requirement even if the partner is subject to immigration control and does not affect the claimant’s benefit entitlement, see Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882 [back to text]
2.From April 2003 Child Benefit is administered by the Inland Revenue. [back to text]
3.This section was amended by s 19 Social Security (Fraud) Act 1997 and is sometimes referred to as 'section 19' by the benefit authorities. There is an exception for HB for hostel dwellers. [back to text]
4. Please see footnote 1 [back to text]
5. Reg 3(2) Tax Credits (Immigration) Regulations 2003 [back to text]
6. Para 6 and 6B Immigration Rules [back to text]
7. There is power to make regulations providing that a person must apply for a national insurance number to HMRC or to the DWP in section 182 Social Security Administration Act. The regulations made under this are The Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001. Regulation 9(1) provides for people to apply for national insurance numbers in such a way as the Secretary of State may direct. Reg 9 SS(CTCNI) Regs 2001 was amended from 11/12/06 by the Social Security (National Insurance Numbers) Amendment regulations 2006 SI no 2897 to include a requirement to produce evidence of the claimant’s entitlement to work in support of their application. The DWP has said, however, that this only affects “work inspired” applications, not “benefit inspired” applications. See SNAP guidance p 25.
We understand the DWP takes the view that for “benefit inspired” applications, it has power to allocate NINos pursuant to ss 1(1A) and (1B) SSAA for the administration of the benefits system. See letter to CPAG from Stewart Whyte dated 18/10/07 (121 KB PDF). Although regulation 5 refers to reg 9 SS(CTCNI) Regs, this does not mean that those who require NINOs for tax credits claims need to satisfy the right to work condition to be entitled to a NINo. See letter to CPAG from Alan Cawthorne dated 07/04/08 (70 KB PDF).[back to text]
8. Presumably all the conditions of entitlement are considered apart from the NINo requirement. Annex B to Stewart Whyte’s letter at footnote 7 gives similar guidance. See letter to CPAG from Stewart Whyte dated 18/10/07 (121 KB PDF). [back to text]
9. This fact sheet concentrates on remedies within the benefits system. Advisers may want to consider community care assistance under s 17 Children Act where claimants have children, or s 21 National Assistance Act for UK nationals who are destitute and UK nationals and PSICs who have physical or mental health problems. However, advisers should be aware that as some forms of social services assistance have been made subject to immigration status, the Home Office has issued guidance to local authorities requiring them to undertake stringent checks on the identity of clients. This means that applications for assistance to local authorities may cause similar problems to claims for benefits. Where restrictions are contrary to EU or Human Rights law they may not apply. The only remedy for refusal of assistance is judicial review.[back to text]
10. Regulation 2(1) of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 [back to text]
11. Reg 91 HB(Gen) Regs 1987 [back to text]
12. CIS/345/2003. The decision appealed against was a refusal of benefit because the claimant did not have a NINo. However, the Commissioner’s decision makes clear that the refusal of a NINo itself is a decision under s 12 Social Security Act 1998 which attracts a right of appeal.[back to text]
13.CIS/345/2003 [back to text]
14. S 1(1B)(b) SSAA [back to text]
15. In CTC/31/2006 the commissioner held that a decision under regulation 5(2)(b) TC(C&N) Regs (manner of claim) was not appealable on the basis that this was an administrative decision, for which JR was an adequate remedy. It can be argued that this is not determinative of the issue of whether a decision under regulation 5(6) can be appealed, or forms part of a decision which can be appealed. The Commissioner appears to accept that fact-based decisions (arguably determinations under regulation 5(6) would be of this kind) are more likely to be appealable than those concerned with general policy issues. He also accepts that the determination of whether a claim is valid is a determination of the claimant’s civil rights, pointing out that it may amount to a refusal of the claim. See also R(IS)6/04 in which Commissioner Howell held that regulations purporting to exclude rights of appeal against decisions about whether a valid claim had been made were contrary to Article 6 ECHR; his analysis in paragraphs 30 onwards would apply. CTC/31/2006 may also contradict CH/2155/2003 which concludes in relation to HB, that local authorities are obliged to determine defective claims; arguably similar principles apply to tax credits. [back to text]
16.Letter to CPAG from David Skinner dated 11/6/07 (150KB Word doc) [back to text]
17. R(H) 1/07 Commissioner Jacobs confirms that the tribunal’s jurisdiction is not dependent on the appeal having been referred by the local authority, who act in an administrative function in this respect. Note, however that for an appeal to have been properly made it will need to have been delivered to the local authority – or to the DWP/HMRC as appropriate.[back to text]