NINos: law, policy and legal challenge

Jessica Strode reviews the law on the national insurance number (NINo) requirement, before considering official policy on operating the requirement and a possible legal challenge.

The law
Under sections 1(1A) and (1B) of the Social Security Administration Act 1992, the NINo requirement is satisfied where a claimant provides her/his NINo, evidence or information necessary to ascertain her/his NINo or, under section 1(1B)(b), where: ‘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’ (emphasis added).
The information or evidence required is merely ‘sufficient evidence to show that the applicant does not already have a national insurance number…, information that a claim for a benefit requiring a national insurance number has been, or is to be, made and information as to identity so that the Secretary of State can be satisfied the claim is genuine.’1CH/4085/2007 [2008] UKUT 14 (AAC)
Section 1(1B)(b) has been considered more than once by the Upper Tribunal. In CH/4085/2007,2CH/4085/2007 [2008] UKUT 14 (AAC) Judge Rowland held: ‘It is to be observed that there is no requirement that a national insurance number have [sic] been allocated before benefit is awarded. It is sufficient that an application has been made…The payment of benefit is not generally to be delayed while the application for the national insurance number is processed.’ More recently in CF/1556/2016,3OM v HM Revenue and Customs [2018] UKUT 50 (AAC) Judge Mitchell held, overturning the First-tier Tribunal’s decision, that ‘[t]he tribunal wrongly held that actual allocation (or “possession”) of a NI number is the only way to satisfy the NI number-related child benefit entitlement condition.’
It is clear that entitlement to benefit begins once an application for a NINo has been made and not only once a NINo has been allocated, and that there is no legal basis for withholding payment of benefit until a NINo has been allocated once applied for.
Further, withholding payment in these circumstances is likely to disproportionately affect non-UK nationals, their partners, children and dependants and therefore arguably discriminates against those claimants under both the European Convention on Human Rights and, for European nationals, under the agreement on the withdrawal of United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community 2019/C 384 I/01 – ie, the Withdrawal Agreement.
DWP policy – universal credit
The DWP states it is not possible to process universal credit (UC) payments without an actual NINo, rather than a claimant having only applied for a NINo, and that the reason for this is primarily to prevent fraud.
Instead, the DWP operates an internal NINo allocation process under which, when a claimant who does not yet have a NINo makes a UC claim, the job centre triggers a NINo application on her/his behalf, and a NINo should then be allocated to the claimant before the end of her/his first UC assessment period. When followed, payment of UC should not be delayed. In recent correspondence to CPAG, the DWP confirmed: ‘Whilst the IT system does require a NINo to process payments, the system as a whole is specifically designed to achieve the allocation of the NINo prior to entitlement arising at the end of the assessment period and prior to payments falling due.’
Current DWP advice is for claimants not to apply independently for a NINo before they apply for UC: ‘If a person wants to claim universal credit but does not have a NINo they should be advised to complete their universal credit claim as soon as possible. They should not be told to arrange their own NINo appointment via the NINo contact centre/employment route.’4DWP guidance, ‘Spotlight on: what to do if the claimant doesn’t have a NINo’
CPAG is, however, aware of many cases where sometimes severe delays in payment have been experienced, including where:
claimants who have not already applied for a NINo have claimed UC, and the job centre has advised them to apply via the NINo contact centre and has not triggered the internal NINo allocation process;
claimants who have already independently applied for a NINo via the ‘NINo contact centre/employment route’ have claimed UC, and the job centre has advised them to wait until they receive their NINo (usually 16 weeks) and has not triggered the internal NINo allocation process;
the internal NINo allocation process has been used, but not until the end of the first UC assessment period, or even after the first (second, third or fourth) UC payment should have been made.
Legal challenge
CPAG is considering a challenge to the DWP’s approach to the NINo requirement for UC and is looking for clients who are affected by this issue. Please contact
CPAG is also interested in hearing from you if you are an adviser and have challenged any unlawful delays caused by the operation of the NINo requirement, using a CPAG judicial review pre-action letter template or otherwise, in order to get an idea of the number of claimants affected.
Please also get in touch if you are able to provide any short case studies of clients you have assisted who have experienced a delay because they did not have a NINo when they claimed UC – using client initials only and including:
the length of the delay they experienced – ie, date of UC claim, date you challenged failure to pay and date finally paid;
their immigration status (or reason they had no NINo);
how many children (if any) and their ages;
the effect on them (risk to housing, financial hardship, etc).
If your client does not want to be referred to CPAG, template judicial review pre-action letters are available for advisers to use themselves to challenge UC delays when a client who does not yet have a NINo claims UC. Please let CPAG know if you use these templates, and feel free to send your pre-action letter to CPAG for review before sending to DWP – email

DWP policy – personal independence payment
Where a person claims personal independence payment (PIP) without a NINo, DWP policy is that a paper form should be issued and a NINo allocation process then followed once her/his PIP2 form is processed; the legal requirement is the same as that set out above. As with UC, there is no requirement to apply for a NINo before applying for PIP. However, CPAG has received a number of reports of claimants being prevented from making a claim for PIP because they did not yet have a NINo.
CPAG has raised this with the DWP, and the DWP has offered to resolve individual cases where the PIP NINo process has not been followed and has asked for other cases to be brought to its attention,‘which may help identify any additional training for call handlers’. If you are an adviser and are aware of any such cases, please contact including your client’s identifying details (name, date of birth, address, etc) and if possible:
the date and time the call was made;
the number the call was made from;
whether the call was made to the new claim or enquiry line.

HMRC policy – child benefit
The legal requirement is the same, but procedurally, when a claimant who does not yet have a NINo claims child benefit, a manual workaround operates which has been explained to CPAG as follows:
‘Where we can’t trace the NINo we are unable to create an account on the IT service so we keep a hold the physical claim, enter the customer details on a database and consider entitlement based on the information provided on the claim.
‘If the customer is entitled to child benefit we would request the allocation of a NINo to the customer. Once received we then build the claim on the service. If we consider the customer would not meet entitlement then we would disallow the claim and issue a decision letter to the customer informing them of the decision.’
CPAG is interested in knowing whether this ‘workaround’ effectively avoids claimants who are waiting for a NINo to be allocated experiencing a delay in receiving the child benefit they are entitled to. If you are aware of any incidents of delay, or of the workaround detailed above not being used, please contact
1     CH/4085/2007 [2008] UKUT 14 (AAC) »
2     CH/4085/2007 [2008] UKUT 14 (AAC) »
3     OM v HM Revenue and Customs [2018] UKUT 50 (AAC) »
4     DWP guidance, ‘Spotlight on: what to do if the claimant doesn’t have a NINo’ »