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Summary

The claimants were, respectively, Vietnamese and Nigerian nationals with leave to remain in the UK without restrictions on claiming public funds. Having applied for UC, they were both denied payment, including advance payment, until the point at which they were allocated a national insurance number (NINo), the DWP having verified the information and evidence the claimants provided with their applications for a NINo. The claimants requested judicial review of the failure to pay them UC until that point.

A three-judge panel of the Upper Tribunal (Mr Justice Farbey, Judge Wikeley and Judge Church) refused the claimants’ request for judicial review. The Secretary of State had not acted unlawfully in not paying UC until the point that the evidence relating to the application for a NINo had been verified and a national insurance number allocated. In so holding, the Upper Tribunal considered the application of the so-called ‘NINo requirement’ at section 1B of the Social Security Administration Act 1992. That requires that entitlement to benefit cannot arise unless the claimant either has a NINo or, (per section 1B(b), as was the case here) the claimant did not already have a NINo, but applied for one and supplied ‘information or evidence enabling such a number to be so allocated’.

Both claimants argued that the Secretary of State’s requirement that an individual must be allocated a NINo prior to payment of UC was a misdirection in law. That was rejected by the Upper Tribunal. In so deciding, the Upper Tribunal declined to follow the decision of Commissioner (as he then was) Rowland in CH/4085/2007, where he had held (at paragraph 26) that: ‘there is no requirement that a national insurance number have been allocated before benefit is awarded. It is sufficient that an application has been made.’ The Upper Tribunal considered that obiter (not binding) reasoning on the facts of the case, and no principles of law or authority had been cited regarding it. Rather, the NINo requirement was an anti-fraud measure, and as such the words in section 1B(b): ‘…cannot refer to information or evidence which purports to enable a NINo to be allocated. Rather, parliament must mean verified information or evidence which actually then enables a NINo to be allocated’ (paragraph 55). There were ‘… sound reasons of public policy for parliament to impose, by virtue of subsection (1B)(b), a process of verification before awarding or paying public funds to a person who may not be entitled to them’ (paragraph 56). That also applied to advance payments, specifically in the context of the requirement at regulation 5(1)(b) of The Social Security (Payments on Account of Benefit) Regulations 2013 (SI No.383) that it was ‘likely’ that the claimant would be entitled to UC: the Upper Tribunal agreed with the Secretary of State that: ‘..verification is a neutral exercise under section 1(1B)(b) in the sense that it will not be “likely” that entitlement will be established under that process or, conversely, not established. The Department cannot know until the verification process has been completed’ (paragraph 59).

The claimant in Bui additionally argued that it was a breach of Article 1 of Protocol 1 of the European Convention on Human Rights (rights to property); and unlawful discrimination against her as a foreign national, via indirect discrimination within the meaning of section 19(1) of the Equality Act 2010 on grounds of race, as foreign nationals are less likely than British nationals to have a NINo prior to making a claim for UC. The Upper Tribunal did not accept that Article 1 of Protocol 1 was engaged. She could not have an assertable right to UC until the NINo requirement was satisfied, so UC was not her property until that point had been reached. Even if it were, some delay in paying UC was justified ‘by the important public interest in preventing the payment of benefit in respect of fraudulent claims, which was parliament’s intention in introducing section 1(1B)(b)’ (paragraph 63). Neither did the Upper Tribunal accept that the Equality Act was breached. Any differential treatment of claimants from abroad in this context was justified: ‘The government issues NINos only to those who are resident in the United Kingdom. To issue NINos to the entire world, on the off-chance that they might at some point in the future come to the UK and claim benefits or enter employment here, would plainly be impossible. Equally, abandoning the system of routinely issuing NINos to United Kingdom residents approaching adulthood would generate major inefficiency in relation to market and social security access’ (paragraph 69).

Comment from CPAG

Many will find it odd that despite a clear statutory route for satisfying the NINo requirement by applying for one and supplying sufficient evidence, the present decision finds in effect that it cannot be satisfied until one is actually allocated. The claimants have applied for leave to appeal to the Court of Appeal.

For the Court of Appeal's decision see our caselaw summary: Bui, R (On the Application Of) v Secretary of State for Work and Pensions (Re Universal Credit)
Bui, R (On the Application Of) v Secretary of State for Work and Pensions (Re Universal Credit). For further information see our test case update: Delays accessing universal credit for claimants with national Insurance numbers.

Decision in brief

Claimant had lived in Wales since 1986 – would have been considered ordinarily resident in Wales for healthcare purposes and indeed had been an NHS patient between 1986 and 2016 – given decision of the Court of Justice of the European Union in VI v HMRC, Case C247/20, his access to free NHS treatment constituted ‘comprehensive sickness insurance’ for the purposes of his claim to housing benefit in December 2016, and as there was no question about his self-sufficiency until 2014, he had already acquired a permanent right to reside

Decision in brief

Claimant ‘sacrificed’ some earnings under a contractual agreement to forego an amount of cash pay in return for the employer’s agreement to make an employer’s contribution to the employee’s occupational pension – held that did not form part of the employee’s earnings as they fell to be excluded as a ‘payment in kind’ under regulation 95(2) of the Employment and Support Allowance Regulations 1998 – approach taken in R(CS) 9/08 approved and applied

Summary

The claimant had obsessive compulsive disorder (OCD). She was temporarily absent from Great Britain for a number of periods in excess of the default four weeks (during which entitlement to ESA may always continue), but within the 26 weeks in which entitlement may be retained where the absence is ‘solely’ in connection with ‘treatment’ of the claimant. The absences were at a property in Spain which she owned with her husband, a former army and NHS surgeon. The stated reason for the absences was to increase the claimant’s exposure to sunlight, which had been observed to markedly improve her condition. The decision maker held that entitlement was lost during these absences. The First-tier Tribunal allowed the claimant’s appeal, having found that while in Spain the claimant maximised her opportunity to be in the sunlight, and that although while there she met up with friends once a week, she remained under the supervision of her husband and the reason for the extended absence was solely in connection with treatment for her OCD. 

Judge Stout dismissed the further appeal of the Secretary of State, holding that the tribunal had not erred in law. The relevant rule was regulation 153 of the Employment and Support Allowance Regulations 2008, SI No.794. The relevant part of that rule in this case was the provision that a claimant may remain entitled during the first 26 weeks of a temporary absence from Great Britain where the absence is unlikely to exceed 52 weeks and the claimant is absent ‘solely in connection with arrangements made for the treatment of the claimant...’. The tribunal correctly held that in regulation 153 ‘solely’ did not mean that the only thing the claimant did while absent was to receive medical treatment, but rather that the medical treatment must be the sole reason for the absence. The tribunal legitimately held that test was met in the light of the evidence, which included the testimony of the claimant and her husband, research papers submitted by the claimant’s husband and a supportive letter from her GP saying that it was ‘scientifically plausible’ that sunlight would improve the claimant’s mental health. There was therefore a sufficiently objective basis for the tribunal’s conclusions on this question. Although, said the judge, ‘many tribunals would not have reached the same conclusion’, the decision was not ‘perverse’, particularly given the severity of the claimant’s OCD and the credibility of the evidence regarding the ‘positive impact’ of spending time in Spain (paragraph 37). 

The tribunal also legitimately held that the requirement for the absence to be in connection with ‘treatment’ and for that to be provided ‘by, or under the supervision of, a person appropriately qualified to carry out that treatment’ was met. Under regulation 153(2), ‘appropriately qualified’ meant qualified to provide medical treatment, physiotherapy or a form of treatment similar to, or related to, either of those forms of treatment’. The Secretary of State’s argument that sitting in sunlight could not be ‘treatment’ was rejected. Regulation 153 did not require the treatment to be ‘medical treatment’ and even the definition of ‘medical treatment’ in regulation 2 included a reference to ‘any course or diet or other regimen’ which made it clear that it ‘can be something that one does to oneself without any direct third party treatment’ (paragraph 43). Although (per the finding in R(S)2/69) mere rest could not be treatment, in this case there was an ‘agency’ of actual treatment in the form of the sun, so that the treatment was ‘exposure to sunlight’ (paragraph 50). There was nothing to require that the person providing or supervising the treatment be registered or a specialist, or that such a person could not also be a family member. Treatment for OCD was not limited to a particular category of medical professional. What was required under regulation 153(2) was that the qualification had to be appropriate to the particular treatment: ‘Evidently, there are no restrictions on who can supervise a regimen of exposure to sunlight’ (paragraph 60).