The 'NINO requirement': updated HB/CTB guidance

 

Sarah Clarke examines recent guidance and case law relating to the national insurance number (NINO) requirement for housing and council tax benefit (HB and CTB).

The DWP has recently issued further guidance to local authorities in HB/CTB Circular A13/2010 on the national insurance number (NINO) requirement for HB and CTB in the light of recent decisions by the Social Security Commissioners / Upper Tribunal. Advisers may find this helpful when disputing HB/CTB decisions where the NINO requirement is in issue (although some aspects of the guidance appear confused - see below). See also previous articles on NINOs in Welfare Rights Bulletins 201 and 209.

The NINO requirement for HB/CTB and for DWP benefits1 The requirement for tax credits is set out in regulation 5(4) of the Tax Credits (Claims and Notifications) Regulations 2002 in similar terms, but does not apply if the Board is satisfied that the person or persons by whom the claim is made have a reasonable excuse for not complying (regulation 5(6)).is set out in sections 1(1A) and (1B) of the Social Security Administration Act 1992. There is no entitlement to benefit unless the claimant and any other person in respect of whom s/he is claiming benefit:

1. provides their NINO with the claim together with information or evidence that it has been allocated to them; or

2. provides information or evidence enabling their NINO to be ascertained; or

3. applies for a NINO to be allocated to them with the required information or evidence.

There have been a number of key decisions on the application of the NINO requirement to HB/CTB in recent years, which are referred to in the updated guidance.

In this case, the claimant was a UK national whose wife was a Thai national who had entered the UK as a visitor on condition that she had no recourse to public funds. She had no national insurance number and had not applied for one at the time of the claim for HB. The Court of Appeal held that the claimant's partner had to meet the NINO requirement even though she herself was a person from abroad who was not entitled to benefit.

In this case, the claimant's husband had joined her household. He was in the UK unlawfully an 'overstayer' and was not eligible to claim benefit. The claimant was required to make a fresh claim and an application for a NINO for the husband was submitted. This was refused when he did not attend an interview, and the HB claim was refused on the basis that the NINO requirement was not satisfied. The Commissioner held that the NINO requirement was satisfied on the basis of the third ground set out above.

This case also concerned a couple with a 'mixed immigration status'. A NINO was not initially required as they were living in a hostel. When they moved into a housing association tenancy, the local authority required a new claim and a NINO application was submitted for the wife, who was subject to immigration control. The wife was interviewed, and her NINO application was refused, nominally on the basis that her evidence of identity was uncorroborated, but in essence because she did not provide a valid UK visa. The Judge held that there was no requirement for a new HB claim, as the initial award was for an unlimited period and could only be altered on revision or supersession. However, the NINO requirement had to be met on revision or supersession as well as on an initial claim. On the facts of the case, the NINO requirement had been satisfied. The judge disagreed with the finding in CH/4085/2007 that the NINO requirement could, in some circumstances, be satisfied by the submission of form DC1 by a local authority requesting a NINO interview, without the person concerned necessarily attending the interview, and held instead that the information and evidence requirement included the signed CA5400 form at the conclusion of the NINO interview (i.e. there was a requirement for the relevant person to attend the interview).

Note: Both CH/4085/2007 and CH/2366/2007 confirmed that there is no right of appeal to an appeal tribunal against a decision to refuse a NINO, contrary to an earlier ruling in CIS/345/2003. There is, however, a right of appeal against a consequent decision to refuse benefit because of a failure to satisfy the NINO requirement. The Secretary of State's (S of S) decision on whether the claimant meets the NINO requirement in ss 1(1A) and (1B) SSCBA can be considered as part of such an appeal.

The HB guidance clarifies how the three conditions in s 1(1A) and (1B) should be applied by local authorities (Local Authorities):

1. Provision of a NINO: Where a NINO is provided for the claimant and anyone included in the claim (in practice this will be a partner), the guidance states that Local Authorities should establish whether they hold information that identifies the person to whom the NINO has been allocated, and compare this with the details given by the claimant. If they match, then the first condition will be satisfied.

2. Information and evidence to trace a NINO: Local Authorities are advised to determine whether a NINO can be traced on the basis of the information and evidence provided. If a NINO is found, the local authority should compare the information held about the person the NINO has been allocated to with the details provided by the claimant to see if they match. If they do, the second condition will be satisfied.

3. Application for a NINO. In this situation, the DWP seems to be advising that the HB claim should be treated as an application for a NINO. In this case the local authority must complete and send form DCI 1 to the DWP requesting a NINO interview and tell the claimant what it has done. The DCI 1 counts as an application for a NINO in accordance with paragraph 29 of CH 4085/2007.

Para 36 of CH/2366/2008 sets out the remainder of the NINO application process. The DCI 1 is sent to the relevant booking centre which contacts the claimant to arrange an appointment at the appropriate NINO 'Hub'. The DCI 1 is forwarded to the Hub, where the person concerned is interviewed and is required to submit evidence of identity. The DCI 1 form and form CA5400, which is completed and signed at the interview, are then sent to the appropriate NINO centre (NDC) in either Glasgow or the Isle of Wight. The NDC decides whether the applicant has provided enough information and evidence of his or her identity and, in cases where the NINO is required for employment purposes, right to work.

The guidance appears to be confused about the disagreement between decisions CH/2366/2008 and CH/4085/2007 about the point at which the requirement is met. It refers to the difference in terms of whether the information and evidence only needs to be that required by form DC1, or whether it needs to be sufficient to justify the allocation of a NINO. It concludes that the latter test, as set out in CH/2366/2008 should be preferred as it is more consistent with the wording of the statute.

In fact, in essence, CH/4085/2007 holds that a NINO interview is not necessary, and CH/2366/2008 holds that it is. It is open to advisers to argue where appropriate (i.e. where the claimant has not attended an interview), that CH/4085/2007 should be preferred, and that if the claimant has given enough information an interview is not necessary.

The guidance says that it is for the Secretary of State to determine whether sufficient information and evidence has been provided to allocate a NINO and that requests for reconsideration should be referred to her/him.

The guidance confirms that on appeal, a first-tier tribunal can consider all questions relating to the NINO requirement including the Secretary of State's determination on information and evidence. The local authority has to provide the tribunal with all the available evidence, and has to obtain the evidence submitted in connection with the NINO application, copies of all the evidence on the applicant's identity, and an explanation from the Secretary of State about why the evidence was considered insufficient to allocate a NINO.

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