Upper Tribunal (Administrative Appeals Chamber)

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[2009] UKUT 74 (AAC)(28 April 2009)
Housing and council tax benefits
other

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

Leicester City Council's appeal to the Upper Tribunal is allowed, although without any advantage to it in the ultimate outcome. The decision of the Leicester appeal tribunal dated 25 February 2008 involved an error on a point of law, for the reasons given below, and is set aside. It is appropriate to re-make the decisions on the claimant's appeals against the Council's decisions dated 15 June 2007 after making the necessary findings of fact (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a) and (4)). The decision in relation to housing benefit is that the appeal is allowed and that the decision dated 13 December 2006 awarding the claimant housing benefit from and including 20 November 2006 falls to be superseded with effect from 15 January 2007 on the ground of relevant change of circumstances (acquisition of new tenancy) and that entitlement under the superseding decision is not precluded by virtue of section 1(1A) of the Social Security Administration Act 1992. The decision in relation to council tax benefit is that the appeal is allowed and that the claimant's entitlement is not precluded by virtue of section 1(1A) of the Social Security Administration Act 1992. It is now for the Council to determine the other issues necessary to the making of the final decisions on supersession in relation to housing benefit and on the claim for council tax benefit, as further explained in paragraph 49 below.

REASONS FOR DECISION

As from 3 November 2008, appeals which were pending before a Social Security Commissioner are to be dealt with by the Administrative Appeals Chamber of the new Upper Tribunal.

This is a complicated case raising particularly difficult questions about the effect of subsections (1A) and (1B) of section 1 of the Social Security Administration Act 1992, inserted with effect from 1 December 1997 by the Social Security Administration (Fraud) Act 1997:

"1.--(1) Except in such cases as may be prescribed, and subject to the following provisions of this section and to section 3 below, no person shall be entitled to benefit unless, in addition to any other conditions relating to that benefit being satisfied--

(a) he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this part of this Act; or

(b) he is treated by virtue of such regulations as making a claim for it.

(1A) No person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection (1B) below is satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit.

(1B) This subsection is satisfied in relation to a person if--

(a) the claim is accompanied by--

(i) a statement of the person's national insurance number and information or evidence establishing that that number has been allocated to the person; or

(ii) information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or

(b) 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."

Subsection (1C) allows regulations to disapply subsection (1A) for prescribed categories of persons in respect of whom benefit is claimed. As in force down to 5 April 2009, regulation 4 of the Housing Benefit Regulations 2006 disapplied subsection (1A) where the claim was in respect of liability to make payments for living in a hostel and where the person in respect of whom benefit was claimed was a child or young person. The equivalent provision in the Council Tax Benefit Regulations 2006 (also regulation 4) did not contain the provision for hostels. With effect from 6 April 2009, the Social Security (National Insurance Number Information: Exemption) Regulations 2009 have added a new sub-paragraph (c) to both regulations 4 disapplying subsection (1A) for a person who:

"(i) is a person in respect of whom a claim for housing benefit [CTB] is made;

(ii) is subject to immigration control within the meaning of section 115(9)(a) of the Immigration and Asylum Act [1999];

(iii) is a person from abroad for the purposes of these Regulations as defined in regulation 10(2) [regulation 7(2) for the CTB Regulations]; and

(iv) has not previously been allocated a national insurance number."

That amendment may have rendered many of the problems arising in this case of interest only for past periods.

We already have the advantage of a decision of the Court of Appeal, in Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882, R(H) 7/06, and of a decision of Mr Commissioner Rowland, in CH/4085/2007, on subsections (1A) and (1B). I disagree with some of the opinions expressed in CH/4085/2007, but not, contrary to the submissions for the Council, as to whether the test applies at the point of a possible revision or supersession of an awarding decision as well as at the point of initial decision on a claim.

There was an oral hearing of the appeal on 19 February 2009. The Council was represented by Mr Andy Miles, a senior appeals officer. The Secretary of State, who had been made a party to the proceedings as a second respondent, was represented by Ms Anna Powick of the Office of the Solicitor to the Department for Work and Pensions (DWP). The claimant attended without representation. I am grateful to all present for their helpful contributions.

The factual background

There has been a good deal of confusion about the course of the Council's decision-making. I attempt to set out here what has been established after investigations carried out by Mr Miles following the making of the appeal to the Commissioner/Upper Tribunal, particularly as reported in his response dated 16 December 2008, and by Mr Wayne Spencer on behalf of the Secretary of State, particularly as reported in his response dated 9 January 2009. I come back to how the case would have appeared to the appeal tribunal.

At all relevant times the claimant has lived with his wife and four children. He is a British subject. His wife is a Nigerian subject, who apparently last entered the country on 6 November 2002. She had applied for leave to remain at the end of 2006 or in early 2007, after her existing visa had expired, but had not had a decision at any relevant date.

The first claim for housing benefit and council tax benefit (CTB) was apparently made on 8 August 2006 from a longstanding address. At that point the claimant was out of work and there is evidence that he was in receipt of jobseeker's allowance (JSA) (copy of notice to Council that entitlement had ceased after 12 September 2006 because the claimant was in remunerative work: page 228). The Council requested further information from the claimant, which was not provided. That may well have been because the claimant and his family moved into bed and breakfast accommodation on 16 August 2006. No decision appears to have been made in relation to either address before 8 November 2006, when a letter was sent to the claimant saying that benefit had been awarded on the limited information that the Council had, but asking for extensive information about almost every aspect of the case. But according to Mr Miles (whose account I accept without reservation) no actual award was made in relation to either address on that date.

From 10 August 2006 the possible allocation of a national insurance number (NINO) to the claimant's wife was being considered within the DWP in connection with the claim for JSA, apparently after receipt of a DCI 1B request from the office dealing with the JSA claim. She was interviewed on 5 September 2006 at a Jobcentre Plus office in Leicester, when she signed a form CA5400 (Application for a National Insurance number: 2008 specimen at pages 247 to 258 and copies of actual tear-off pages from that and a later form retained by the claimant's wife at pages 165f to 165i). The application was refused on 28 September 2006, according to the adviser interview print because evidence of identity was uncorroborated. The letter dated 28 September 2006 to the claimant's wife (page 191: produced by the claimant) referred to her application on 5 September 2006, had a tick in the box for the refusal of the application for failure to provide sufficient evidence of identity to allow a NINO to be allocated with the handwritten addition "(you did not provide a current valid UK visa)". The completed CA5400 form would have been destroyed, according to normal practice, 14 months after the refusal of the application. I shall come back to the claimant's evidence to me about the interview on 5 September 2006.

Another DCI request, a DCI 1TC, was received on 20 September 2006 in connection with a tax credits claim. An interview date was arranged, but was later cancelled by the claimant's wife, it seems when she was still awaiting the outcome of her earlier application.

On 20 November 2006 the claimant and his family moved to a Council-run hostel. The Council made a decision on 13 December 2006 awarding the claimant housing benefit at the rate of £202.72 per week from and including 20 November 2006. A copy of the letter of notification, showing the working out of the amount of housing benefit taking account of the claimant's earnings from employment and his receipt of child benefit, is now in the papers. The award no doubt reflected the effect of the disapplication of subsection (1A) by regulation 4 of the Housing Benefit Regulations. It had become irrelevant whether the claimant's wife had a NINO or had or had not applied for one. I do not know whether the lack of any award of CTB reflected the absence of any similar disapplication in regulation 4 of the CTB Regulations or the absence of a liability to council tax while in the hostel. There is nothing in the papers to suggest that any new claim form had been submitted, so that the decision appears to have been made on the claim made in August 2006, having taken into account the changes in circumstances since that time.

The claimant was able, with the assistance of the Council's housing department, to obtain a private housing association tenancy starting on 15 January 2007. He obviously brought that to the attention of the housing benefit office, because he was issued with a housing benefit and CTB claim form stamped with the date 18 January 2007 for the intention to claim benefit, with the instruction that it was to be returned within a month. The claimant signed the completed form on 29 January 2007, but it appears not to have been received back by the Council until 30 April 2007. On the form the claimant said that he had recently been awarded housing benefit for the hostel and that apart from obtaining the tenancy the circumstances remained the same. In an accompanying letter dated 23 April 2007 he said that he had applied for housing benefit on 19 January 2007 and been told to bring some additional information. He explained that his wife was subject to immigration control and had an application outstanding before the Home Office for leave to remain status. He also complained that Council officers had told him that unless his wife got a NINO his claim could not go forward, but refused to book a NINO interview on her behalf. I do not need to detail here all the toing and froing between the Council and the claimant and his wife. Decisions were given on 15 June 2007 that the claims for housing benefit and CTB could not be accepted because the claimant's wife did not have a NINO. Those were the decisions under appeal to the appeal tribunal of 25 February 2008.

The DWP records indicate that no further application for a NINO was made by the claimant's wife until 31 August 2007, as she was then looking for work. She was interviewed on 7 September 2007. The application was refused on the ground that she had not established that she had the right to work in the United Kingdom.

PRIVATE The appeal to the appeal tribunalThe appeal to the appeal tribunaltc \l 3 "The appeal to the appeal tribunal"

The claimant's appeal was based on the submission that it had been the responsibility of the Council to arrange a NINO interview for his wife, as she could not get an interview when not seeking work without Council intervention. The Council's written submission described the decisions of 15 June 2007 as having been to refuse the claims made in the form received on 30 April 2007. It concentrated on seeking to show that the Council was not able to book NINO interviews with the DWP and could do no more than complete a DCI 1LA form requesting the issue of a NINO. There was also mention of the main aspect of the decision of the Court of Appeal in Wilson, that section 1(1A) of the Social Security Administration Act 1992 applied to a benefit claimant who had a partner, even if the existence of the partner

was to be ignored in the calculation of the claimant's applicable amount because the partner was subject to immigration control and so was a "person from abroad". The claim was still made "in respect of" the partner.

The claimant attended the hearing on 25 February 2008. There was no presenting officer from the Council. The appeal tribunal allowed the appeal. It relied on another aspect of the decision in Wilson that drew attention to the fact that subsection (1B) can be satisfied through paragraph (b) although the person concerned has not been allocated a NINO (paragraph 44 of the judgment). The appeal tribunal made the following findings of fact in its statement of reasons:

"7. The appellant's oral evidence was that two such applications had been made and this was also the evidence given to the local authority. There is a local authority diary entry at [page 135] dated 31/5/07 that the appellant's partner has applied for a national insurance number. A further local authority diary entry on 15/6/07 (recorded at [page 137]) is that "inland revenue ... confirmed mrs applied for nino and was refused as didn't satisfy immigration rules".

8. The reasoning set out as having been given by the Revenue is clearly contrary to the provisions of R(H) 7/06 [Wilson].

9. The information given in interview with the council on 13/7/07 (recorded at p86) indicates that an attempt to apply for a national insurance number had been rejected because she was not a jobseeker. At an interview on 30/8/07 (recorded at p126) it is stated that she had contacted the Job Centre about a national insurance number and was awaiting an interview. The information given in the interview with the council officer on 30/8/07 is stated as being a correction of an earlier mistaken information given to the council about actions taken in respect of obtaining a national insurance number.

10. On the balance of probability I find that an application for a national insurance number has been made. I find that the provisions of s1(1B) Social Security Administration Act 1992 have been met."

The appeal to the Commissioner/Upper Tribunal

The Council now appeals against that decision with the leave of a district chairman of appeal tribunals. It is plain that the appeal tribunal went wrong in law in a way that requires the setting aside of its decision. I do not need to explore in detail whether the appeal tribunal had been entitled, on the limited evidence available on 25 February 2008, to conclude that by the latest date that it was allowed to consider (15 June 2007: see paragraph 6(9)(b) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000) the claimant's wife had applied for a NINO. The application made on 31 August or 7 September 2007 was excluded from consideration. I decide below that it was legally open to the appeal tribunal to rely on the application that had been refused on 28 September 2006, despite that refusal. However, the appeal tribunal failed not only to identify clearly just what application for a NINO it was relying on, but most importantly failed to consider all of the condition in subsection (1B)(b). Subsection (1B) is only satisfied if an application is accompanied by information or evidence enabling a NINO to be allocated. There is a considerable difficulty in working out what information or evidence would meet that test when, as I understand it and as was clearly shown by Mr Commissioner Rowland in paragraphs 20 and 21 of CH/4085/2007, there are no express statutory conditions for the allocation of a NINO. Any duty to allocate a number can only arise by implication. Whatever the right answers are to the many difficult questions of law that can arise, some of which I explore below, there was at the very least a fundamental failure by the appeal tribunal to explain how the whole of the condition in subsection (1B)(b) was met in the present case. If the appeal tribunal took the view that the claimant's wife had provided sufficient information with the application that was refused, as we now know, on 28 September 2006, because the reason given over the telephone by the Inland Revenue (page 137) was irrelevant to whether or not she had established her identity, that reasoning needed spelling out in detail.

The decision of the appeal tribunal of 25 February 2008 is therefore set aside. Since I have had the benefit of much new written evidence and of hearing from the claimant in person, I can substitute a decision on the claimant's appeals against the decisions of 15 June 2007 without needing to remit the case to a new tribunal for rehearing.

The Upper Tribunal's decision on the appeals against the decisions of 15 June 2007

The decisions of 15 June 2007: claim or supersession?

It is first necessary to establish the exact nature of the decisions of 15 June 2007, since the submission for the Secretary of State had at one stage been that there was no appealable decision before the appeal tribunal.

In relation to housing benefit, it is important that the award to the claimant on 13 December 2006 was made on an indefinite basis. Although the calculation of the amount of benefit and the disapplication of section 1(1A) turned on the family's residence in the hostel, the award itself was unlimited in time. Thus, on the change of circumstances of the family's taking up of the housing association tenancy, there was no need (indeed the claimant did not have power in law) to make a new claim for housing benefit. There could in law only have been an alteration in the claimant's entitlement through the exercise by the Council of its power of revision or supersession. The claimant did need to make a claim for CTB, as there was no award of that benefit in existence, and the issue of a combined claim form might have been regarded as necessary for that purpose and sensible as a way of obtaining information about the change of circumstances in relation to housing benefit.

The notification letter of 15 June 2007 in relation to housing benefit was headed "claim refusal notification" and "housing benefit claim refused". The first paragraph was:

"Thank you for your claim for housing benefit. Unfortunately, I cannot accept your claim because your partner does not have a National Insurance Number."

Does that mean, as suggested by Mr Spencer for the Secretary of State in his submission of 5 September 2008, that the Council's attempt to give a decision on what it perceived as a fresh claim for housing benefit, without having terminated the award of 13 December 2006 by supersession, was so fundamentally flawed as not to amount to a decision at all (referring to decisions R(IB) 7/04 and R(IB) 2/04)? The answer must be no. If the Council had purported to give a decision on a fresh claim to the same effect as the decision of 13 December 2006, that would have been not a decision at all in accordance with the above decisions. However, the decision of 15 June 2007 made an alteration in the claimant's entitlement under an existing indefinite award on a relevant change of circumstances. Therefore, although couched in terms of the refusal of a fresh claim, it was in substance a supersession decision. It certainly had sufficient existence as such to enable an appeal to be made against it, in the course of which a decision correctly identifying the legal powers relied on could be made.

The decision of 15 June 2007 in relation to CTB was different. That was made on a fresh claim and was to disallow the claim on the ground that the claimant's partner did not have a NINO.

Does section 1(1A) to (1C) apply only to initial decisions on claims?

In relation to housing benefit, there was plainly a relevant change of circumstances justifying supersession in the taking up of the housing association tenancy. The claimant's liability for rent changed and the disapplication of section 1(1A) while living in a hostel ceased to have effect. But did that subsection require the decision that the claimant was no longer entitled to housing benefit? Does it apply not only where an initial decision is being given on a claim, but also where a decision making an indefinite award is being revised or superseded? In CH/4085/2007, Mr Commissioner Rowland answered yes. Mr Miles for the Council has submitted that that was wrong. For some time I found that submission convincing, but have finally been driven to reject it.

One diversion can be cleared away. The question is not authoritatively decided by Wilson, although an incautious reading (and some ambiguity in the headnote to R(H) 7/06) might suggest otherwise. The claimant there had been in receipt of housing benefit for some time when he married a Thai national in April 2003, who had a visitor's visa with a condition that she neither work nor have recourse to public funds and who did not have a NINO. On 24 June 2003 the claimant made a renewal claim for housing benefit. It is vital to recall that at that time awards of housing benefit were made for "benefit periods", after the expiry of which a fresh claim had to be made. An award was made to the claimant from 30 June 2003, but in early 2004 the local authority noticed that no NINO had been stated for the claimant's wife on the claim form. A decision was then given, presumably by way of revision for official error, that the claimant was not entitled to housing benefit from 30 June 2003. Thus, although the headnote refers to the award of housing benefit being terminated, the Court of Appeal was concerned with the proper decision that should have been made on the renewal claim with effect from 30 June 2003. It was not concerned with an alteration to an existing award for an indefinite period on a relevant change of circumstances. Its acceptance that section 1(1A) applied does not necessarily extend to such circumstances.

The difficulties identified by Mr Commissioner Rowland in CH/4085/2007 must therefore be faced. There the question arose when the claimant's husband moved back into her household. The local authority suspended payment of her housing benefit and CTB and asked her to complete a new "claim" form in both their names. The form revealed that he did not have NINO. The local authority sent a DCI 1LA form to the DWP. The claimant's husband apparently did not attend the interview on the arranged date, but the reason given for refusing to allocate a NINO was "Applicant is illegal immigrant - has no right to remain". The local authority then decided that the claimant was not entitled to benefit from the date of her husband's return to the household.

In paragraph 17 the Commissioner said this:

"It has to be said that subsection (1B) of section 1 of the 1992 Act is a most unsatisfactory provision in a number of respects, many but not all of which are relevant to this case. Apart from anything else, it is surprising that subsections (1A) to (1C) were inserted into section 1 of the 1992 Act by section 19 of the Social Security Administration (Fraud) Act 1997 at all, rather than being made a freestanding section like section 182C of the 1992 Act, which was inserted at the same time by paragraph 9 of Schedule 1 to the 1997 Act. Two obvious difficulties, not of direct relevance to this case, appear at once and arise because one usually expects some consistency in the use of language within a single section of an Act of Parliament, even if there is inconsistent usage in different parts of the Act. In section 1(1), `person' includes a child, who may, for instance, be a claimant of disability living allowance even if an adult is always appointed to act on a child's behalf. I doubt that it was intended that `other person' should include a child in section 1(1B). Secondly, a `claim' is made in order to obtain an initial decision conferring entitlement and it ceases to subsist once it has been determined (see paragraph 2(a) of Schedule 7 to the 2000 Act). When a claim has been determined in a claimant's favour, any further decision in respect of an award is made by way of revision or supersession under paragraphs 3 and 4 of Schedule 7 to the 2000 Act, either on an application by the claimant or on the local authority's own initiative. Thus, in the present case, where the claimant already had an award of housing benefit and council tax benefit when she visited the local authority's offices on 7 August 2006, it seems to me that she was merely reporting a change of circumstances and that the claim form issued by the local authority was merely a convenient device for obtaining information for the purpose of deciding whether the award should be revised or superseded. The claimant was not making a new claim, even when the completed claim form was received. It is obvious that the provisions of section 1(1) are not intended to apply to applications for revision and supersession; even less can they apply where there is a revision or supersession on a local authority's own initiative. It seems unlikely, therefore, that `claim' in section 1(1B)(a) is intended to be limited to situations where there is a `claim' within section 1(1)."

He went on to apply subsection (1A) as at the date of the husband's return to the household, but decided that subsection (1B) was satisfied, using, if I may say so, some rather fancy footwork.

Mr Miles for the Council submitted to me that Mr Commissioner Rowland was wrong in law and that subsection (1A) applied only to initial decisions on claims. Section 1 as a whole is related to the need to make a claim. The use of the phrases "making the claim" and "person in respect of whom he is claiming benefit" in subsection (1A) refer most naturally, he submitted, to the making of an initial claim, even though (as mentioned by Ms Powick) when the 1997 Act was passed the provisions of the 1998 Act about a claim ceasing to subsist once it is determined did not exist. There were no amendments to subsections (1A) to (1C) in consequence of the 1998 Act. Then the condition in subsection (1B)(a) appears to focus directly on an initial claim in its requirement that "the claim" is accompanied by a statement of all relevant persons' NINOs or information from which the NINO can be identified. That accompanying, Mr Miles submitted, could in its precise terms only happen at the point of the making of the claim. Then, if there is no need to provide an actual NINO in connection with a revision or a supersession, there can scarcely be a need to apply for a NINO under subsection (1B)(b) in such circumstances. He accepted the policy put forward for the Secretary of State, and mentioned in earlier decisions, that requiring the provision of NINOs is aimed at the prevention of fraud and that that would apply as much in connection with revisions and supersessions as in connection with claims. But he questioned whether that policy was in fact expressed in the words of the legislation, with a preference (for which I have considerable sympathy) against "making the system work" by a process of implying detailed obligations and rules and in favour of well-written legislation on which local authorities could rely with confidence as setting out all the relevant rules.

There is plainly force in those submissions. On any basis the placing of the new subsections (1A) to (1C) in section 1 of the Social Security Administration Act 1992 and the inept and loose wording of those subsections create large problems of interpretation. The crux is subsection (1A) and its relationship to subsection (1). Subsection (1) creates a general condition of entitlement to benefit that a claim is made in the prescribed way within the prescribed time. That is a general condition in the sense that it does not have to be satisfied on the particular day of potential entitlement, otherwise it would be impossible for anyone ever to become entitled to benefit for a period prior to the date of making a claim. It is also a general condition that governs entitlement on a continuing basis. When subsection (1A) refers to a person whose entitlement to any benefit depends on his making a claim for it, that must cover not just those who are in the course of making claims but also those to whom subsection (1) applies because they had to make a claim to initiate their continuing entitlement. Then the reference to the person making the claim is to all such persons. The reference to a person in respect of whom the claimant is claiming benefit is particularly loose, but in the context just established it must be interpreted in the everyday or colloquial sense as meaning any person included in the claimant's unit for purposes of the benefit in question. The apparent effect of subsection (1A) in setting out a general condition of entitlement on a continuing basis, that subsection (1B) is satisfied, can then be given operation on a consistent basis.

If that is once accepted, subsection (1B) must be interpreted in the same way. It could not possibly have been intended that, if, say, a new partner with a NINO joins a claimant with an existing entitlement to housing benefit or CTB, so that subsection (1A) bites, subsection (1B) is not satisfied because the original claim was not accompanied by a statement of the then non-existent partner's NINO. I am not directly concerned in this decision with subsection (1B)(a), but it seems to me that for the reason just given "claim" there must refer to either a claim or an application for supersession or a response to a request for information when the decision-making body is considering revision or supersession on its own initiative, as is appropriate to the circumstances. So far as subsection (1B)(b) is concerned, that in its terms applies a general condition not linked to the point of claim. Providing that the condition is satisfied by the date that a decision is made, its satisfaction can relate back to the beginning of the period of claim or the relevant period on revision or supersession, just as subsection (1) can be satisfied in relation to a period before the date of the claim.

All of that involves giving some rather strained constructions to particular words in subsections (1A) to (1C), but in my judgment best reflects the essential characteristic of subsection (1A) as a general condition of entitlement. It also avoids what would I think have been a very odd result in the circumstances of the present case, where the claimant and his wife have been in the same household throughout. The only reason why his wife's lack of a NINO did not prevent the award of housing benefit being made on the initial claim when they were living in the hostel was the specific disapplication of subsection (1A) by regulation 4 of the Housing Benefit Regulations. When that disapplication ceased to be operative on the change of circumstances of the move from the hostel to the housing association tenancy, there would in general be no less reason for applying the NINO conditions at that point than when housing benefit was first awarded. And of course the prevention of fraud is as potent a policy factor when revision or supersession is being considered as on claims.

Was section 1(1B) satisfied as at 15 June 2007?

This question has to be asked in relation to CTB even if I am wrong in the preceding paragraphs about the application of subsections (1A) and (1B) in relation to the supersession of the housing benefit awarding decision for relevant change of circumstances.

I focus first on the application for a NINO by the claimant's wife that was refused on 28 September 2006. I do so because there is no doubt that, regardless of the real problems about what might constitute an application (see below), one was made prior to that refusal.

Ms Powick's submission for the Secretary of State at the oral hearing was that because the application had been refused it could not be relied on on 15 June 2007 to satisfy subsection (1B), regardless of whether or not the reasons for refusal could be justified. There is some force in the view that the words of subsection (1B), even if they must be interpreted as including a situation where a person has made an application, most naturally apply to a situation where an application is current and an application cannot be regarded as current or as still in existence if it has been refused, regardless of the reason.

However, it is significant that, as shown by Mr Commissioner Rowland in paragraphs 19 to 21 of decision CH/4085/2007, there appears now to be no legislative provision controlling the actions of the Secretary of State or Her Majesty's Revenue and Customs in allocating or refusing to allocate a NINO, even though there are provisions in regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 (made under section 182C of the Social Security Administration Act 1992) requiring certain people (not including partners of claimants as such) to apply for a NINO. Therefore, there cannot be a right of appeal to what is now a First-tier Tribunal against a refusal to allocate a NINO, because that is not a decision that falls to be made under a relevant enactment within section 8(1)(c) of the Social Security Act 1998. There can only be an effective right of challenge, apart from judicial review, if the sufficiency of the information and evidence provided with the refused application can be tested in an appeal against the consequent benefit decision. It was in the light of such considerations that Mr Commissioner Rowland held in paragraph 25 that:

"[t]he refusal of the Secretary of State to allocate a national insurance number may indicate that the information or evidence provided with the application was not such as enabled him to allocate a number, but it cannot be conclusive."

He went on to decide that the application by the claimant's husband that had been refused either because he had failed to attend an interview or because he was "an illegal immigrant - has no right to remain" nevertheless satisfied subsection (1B)(b). That is inconsistent with Ms Powick's submission.

I find this question particularly difficult and I recognise that there will be practical difficulties for local authorities if they cannot simply rely on a refusal to allocate a NINO as indicating that insufficient information and evidence had been provided. But I am far from satisfied that Mr Commissioner Rowland was wrong in applying the principles that an application that had been refused could nevertheless satisfy subsection (1B)(b) and that the refusal was not conclusive that the necessary information or evidence had not accompanied the application. Therefore, I follow that aspect of his decision and apply those principles.

Thus, the evidence is clear that the claimant's wife made an application for the allocation of a NINO in August/September 2006, whether the application is regarded as made when the relevant office sends a DCI 1 form, when the person signs a CA5400 application form at an interview or on a continuous basis throughout that process. In the light of the evidence that I have received about the process, I disagree with Mr Commissioner Rowland in CH/4085/2007 that an application for the purposes of subsection (1B)(b), which could sensibly be required to be accompanied by sufficient information or evidence for the allocation of a NINO, is made simply by the submission from a local authority of a form DCI 1LA or the submission of a different version of that form from another authority. I do not have to decide between the two other alternatives suggested above, as on either basis the information or evidence accompanying the application is to be regarded as encompassing all the information or evidence provided by the claimant during the process down to and including the signing of the CA5400 form (contrary to paragraph 30 of CH/4085/2007).

Was the application in the present case accompanied by information or evidence enabling a NINO to be allocated? It is difficult for an outsider to tell from the adviser interview print mentioned in paragraph 9 above what documentary evidence was produced at the interview on 5 September 2006. The section headed "action details" includes against that date entries "Letter confirming residence" and "birth certificate". There was also an entry under notes in that section "solicitors letter". There was then an entry for 12 September 2006 "papers received at CCU" and "more information required", followed by the entry on 28 September 2006 "refused - EOI uncorroborated". I think that the reference to CCU is to the latter part of the process as described in the statement dated 23 December 2008 from a manager of a NINO Hub at the Jobcentre Plus office in Nottingham responsible for the East Midlands:

"Applicants who require a NINO for benefit purposes are asked to make the claim for benefit first and once benefit entitlement is established the benefit paying section will forward form DCI 1 to the booking centre who will contact the customer to make an appointment at the appropriate NINO Hub. The DCI 1 is sent to the NINO Hub and once the interview has been completed the DCI 1 form and the form CA5400 (Application for a National Insurance Number) are sent to the appropriate NINO Centre (NDC) in either Glasgow or the Isle of Wight. The NINO Hub is responsible for interviewing the customer and obtaining the evidence of the applicant's identity. The NDC makes the decision as to whether the applicant has provided sufficient information to confirm their identity and also in cases where the NINO is required for employment purposes their right to work."

I take from the above evidence that at the minimum the claimant's wife produced on 5 September 2006 her birth certificate and a letter about her residence status in this country, which could well have been the letter from her solicitor. At the oral hearing, the claimant's evidence was that his wife took four items to the interview: her passport, her student ID, utility bills in her name and a letter from her solicitor about her current immigration status. I found the claimant a reliable witness who was giving as genuine an account as he could of the course of events. He had a very good and consistent grasp and recall of matters. Although he of course did not attend the interview on 5 September 2006, I am sure that he would have known what his wife took with her. I therefore accept his evidence with one possible qualification. It seems at least odd, if his wife had actually had her Nigerian passport at the interview, for that not to have been officially recorded. On the other hand, although at later dates the passport was said not have been available because it had been sent to the Home Office (although surely a photocopy would have been kept), that seems not to have been the case in September 2006. So, there is a possibility that the claimant's memory was at fault about his wife's passport and she took her birth certificate instead. But subject to that, I accept the claimant's evidence.

Despite those elements of doubt, there appears not to have been any real dispute both that a person with the name of the claimant's wife existed, was married to the claimant and had arrived in Great Britain in November 2002 and that the person who presented herself at the interview on 5 September 2006 was that person.

Ms Powick submitted very clearly that in the view of the Secretary of State the claimant's wife's immigration status, including not having the right to work, was irrelevant to whether she should be allocated a NINO in the context of her husband's entitlement to housing benefit and CTB. In that context, what mattered was whether she had established her identity to such an extent as to justify the allocation of the unique identification within the benefit system of a NINO.

That was entirely consistent with what the Court of Appeal in Wilson was told:

"39. The Secretary of State has made clear that a national insurance number can be applied for, and will be allocated, irrespective of any intention to work and without any conflict with a visa condition prohibiting a person from working in this country. The use of a national insurance number has a non-work-related function in the control of fraud in benefit claims. ...

40. Further, the fact that housing benefit was claimed by Mr Wilson in respect of Mrs Wilson as well as himself would not in my view place Mrs Wilson in breach of her visa condition not to have recourse to public funds."

Ms Powick's submission was also entirely consistent with what Mr Commissioner Rowland said in paragraph 29 of CH/4085/2007:

"What the Secretary of State actually requires in order to allocate a national insurance number is sufficient evidence to show that the applicant does not already have a national insurance number (i.e., the evidence that would be required under section 1(1B)(a)(ii) so as to enable a national insurance number to be found if one had been allocated), information that a claim to benefit requiring an application for 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 that the [person] is genuine. It is information as to identity that is the difficulty. ... [T]he person concerned is called to an `evidence of identity' interview at a jobcentre and is told what evidence to bring, it being made plain that photocopies are not accepted. The interview enables the person's face to be compared with a photograph in a passport, makes it unnecessary for valuable original documents as to identity to be sent by post and enables a person to be questioned to test his or her statements."

What Ms Powick's submission seems not to be consistent with is the actual practice of those carrying out evidence of identity interviews or of the NINO Centres, at least as revealed in cases that have got as far as the Commissioners/Upper Tribunal. Nor does it seem consistent with what has been said in DWP guidance to local authorities about the effect of the 2009 Regulations (paragraph 3 above) in paragraph 4 of Housing Benefit and Council Tax Benefit Circular A4/2009:

"In a relatively small number of cases this [the application of section 1(1A) of the Social Security Administration Act 1992 to the partners of claimants] has resulted in the allocation of a NINO to an individual with no leave to enter or remain in the UK (ie a person who has no right to be in the UK) who is a partner of a legitimate HB/CTB claimant."

Thus what was presented by Ms Powick as a desirable result of allocating a NINO when identity was sufficiently established, in the creation of a unique identification of the person concerned for all future benefit purposes, is now presented as an unintended and undesirable side-effect of the system. It is true that there is a danger in unfounded assumptions that the possession of a NINO entails a right to work in this country, as mentioned in Wilson. It is perhaps understandable that there was confusion in the minds of the officers actually operating the system about what were proper grounds for refusing to allocate a NINO. That does not, though, take away from the potentially very severe effects on claimants and their families, as in the present case, left without benefit in a sort of administrative limbo with no clear rules and no clear route of legal challenge.

The relevance of those points in the present case is this. The handwritten reason for the refusal to allocate a NINO written on the letter of 28 September 2006 casts doubt on where the officer concerned thought that the information and evidence provided by the claimant's wife fell short of what was necessary. Ms Powick submitted that the true reason was as recorded in the adviser interview print (that evidence of identity was uncorroborated) and in the printed part of the letter (that the claimant's wife had failed to provide sufficient evidence of identity), and that the handwritten reason was either merely one example of insufficiency or an additional factor. I cannot accept that. I can only interpret the handwritten reason on the letter of 28 September 2006, being in brackets after the pre-printed text, as intended as an explanation of the way in which the evidence of identity provided had been found insufficient. It does not indicate that evidence of identity as such had not been provided, but that in the absence of a current valid UK visa a NINO would not be allocated. That is consistent with the use of the rather vague word "uncorroborated" in the adviser interview print. I therefore conclude on the balance of probabilities that the documents provided by the claimant's wife at the interview on 5 September 2006 constituted information or evidence enabling the allocation of a NINO to her on the basis established in paragraphs 39 to 41 above.

Accordingly, the test in section 1(1B)(b) of the Social Security Administration Act 1992 was satisfied as at 15 June 2007. The claimant's entitlement to housing benefit and to CTB was not precluded by subsection (1A).

Other problems with the NINO provisions

In the light of that conclusion, I do not need to go into all of the other issues raised in submissions. But I should record that it seems to me that, as submitted by Ms Powick with the support of Mr Miles, Mr Commissioner Rowland was wrong to suggest in paragraph 27 of CH/4085/2007 that the Secretary of State is not obliged to allocate a NINO in a case where section 1(1B)(b) would be satisfied, because merely having made the application and provided the necessary information and evidence would be enough and there is no need to take the final step of the allocation of a NINO. That in my judgment would be a recipe for confusion unless the systems for recording the outcomes of NINO applications were a great deal more sophisticated than are. And in any case, for the reasons put forward by Ms Powick, if someone needs at least to apply for NINO and meets the conditions for allocation, it is better in relation to the general anti-fraud aim of having a unique identification for everyone in contact with the benefit system then to allocate a number.

I also wish to comment briefly on Ms Powick's submission that a local authority has power to make payments of housing benefit and CTB to a claimant while waiting to be notified of the outcome of a pending application for a NINO (both before and after an interview). The basis for that submission is sound. If (as seems likely) a formal application and the provision of information and evidence is not made until the interview takes place, entitlement can be awarded from the beginning of the period of a claim if the test in subsection (1B) is satisfied at some date no later than the date of the decision on the claim. Ms Powick referred to the provision in regulation 2(1)(a) of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 for the making, at the discretion of the Secretary of State, of interim payments of benefit in circumstances that expressly include it being impracticable to satisfy the requirements in section 1(1A) and (1B) immediately. Such payments are subject to an obligation to repay anything in excess of whatever entitlement is eventually awarded. The Payments Regulations do not apply to housing benefit and CTB, but there appears to be a more prescriptive duty on local authorities in rent allowance cases under regulation 93 of the Housing Benefit Regulations 2006, not, though, extending to rent rebate cases or to CTB. Under regulation 93(1) a local authority is required to make a payment on account of such amount as it considers reasonable if it is impracticable (not arising out of the claimant's failure without good cause to furnish information etc) for it to make a decision on a claim for a rent allowance within 14 days of the making of the claim.

Of course, none of those provisions bites on the circumstances of a revision or supersession of an existing awarding decision, when that decision is to take away entitlement. In such circumstances, Ms Powick suggested, local authorities should consider delaying making the revision or supersession decision until the outcome of the NINO application is known, possibly using the power in regulation 11(1) and (2) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 to suspend payment, in whole or in part, when an issue arises whether an awarding decision should be revised or superseded, so as to limit payment to what would be awarded if the NINO requirements were met. That would appear to work satisfactorily, but local authorities might be tempted to suspend payment entirely because of a fear that a payment made in excess of the eventually determined entitlement might turn out not to be recoverable because caused by official error (ie a failure to suspend payment). However, it seems to me that such a fear would be unrealistic, in that while the outcome of a NINO application is awaited it could not properly be said to be an official error to continue to pay a claimant the level of entitlement that would be appropriate if the NINO requirements are met.

Conclusion

For the reasons given above, the claimant's entitlement to housing benefit and CTB is not precluded with effect from 15 January 2007 by virtue of section 1(1A) of the Social Security Administration Act 1992. Accordingly, his appeals against both the decisions dated 15 June 2007 must be allowed and the decisions set out at the beginning of this documents substituted.

The substituted decisions given there are limited to the issue arising in the appeals, the effect of section 1(1A). It is therefore now for the Council to go on to make decisions (as soon as possible in the light of the lapse of time involved) on the other issues involved in the two cases. I do not have the evidence to do that in the substituted decisions. In relation to housing benefit, that will require a calculation of the claimant's entitlement following the change of circumstances of the taking up of the new tenancy down to the date of the new decision, taking account of amount of the rent and the amount of the claimant's income, subject to his possible entitlement to other benefits. A similar calculation will have to be made in order to give a complete new decision on the claim for CTB from and including 15 January 2007. When those final decisions have been made, the claimant will have a right of appeal to the First-tier Tribunal if dissatisfied with the outcome.

(Signed) J Mesher

Judge of the Upper Tribunal

Date: 28 April 2009