Hi all,

I am advising a client whose wife has been refused a NINO on the basis that she had no right to remain in the UK


The client is a GB national. His wife is from Bangladesh and entered the UK on a spousal visa that expired last year. No application to renew or extend that leave was made prior to expiry as the client stopped being self-sufficient and had to claim JSA

He has sought immigration advice elsewhere and been advised that the Home Office would not look favourably on such an application at this stage given that he cannot support her and she has no sponsor.

As a result of the refusal to allocate a NINO his housing and council tax benefit claims have been cancelled and he has been deemed liable for overpayments for both benefits. The reason given is that he is not entitled to benefit as his wife has been refused a NINO.

The conclusion I have reached having regard to the decision in Wilson and after having consulted the LASA specialist support line is that

(1) It is now clear (following Wilson) that a NINO must be provided for a spouse of a claimant in order to be entitled to HB/CTB

(2) Allocation of a NINO does not appear to be governed by statute or regulations and appears to be an administrative act entrusted to the DWP. As such any challenge to the refusal is by way of Judicial Review

(3) It is doubtful that the Admin Court would intervene where the client's spouse is an overstayer and there is not current application for leave to remain with the Home Office

The client is in local authority accommodation and now appears to have no option but to ask his wife to leave (either to return to Bangladesh and seek leave to enter from there or to stay with relatives elsewhere in the UK so that he can be treated as a single claimant and not a couple).

Any suggestions as to how this can be avoided would be gratefully received. Has anyone sought to challenge the refusal to allocate a NINO to someone without the right to remain in the UK?

Thanks

Amran

There is no right of appeal against the refusal of a NINO, but there is a right of appeal against any outcome benefit decision that rests upon the determination (its not a decision) to refuse a NINO.

The Wilson case does not address the issue of refusal of a NINO, only a persons refusal to apply for one

There is a very useful decison of Mr Commissioner Jacobs CIS/0345/2003. The follwing passage from para 1 is worthy of note because it seems that a Tribunal would be justified in restoring benefit entitlement in a situation such as this where the refusal of the NINO is indefensible

"The tribunal will find helpful this passage from the Secretary of State’s written observations to the Commissioner. Those observations were written by an officer from the Adjudication and Constitutional Issues Branch in Leeds. The officer wrote:
‘It is to be hoped that the Secretary of State’s representatives in the claimant’s local social security office will in the meantime reconsider its refusal to provide to the tribunal the evidence on which its refusal of the claimant’s claim under section 1(1B) of the Social Security Act 1998 . If not, the new tribunal will, in my submission, be at liberty firstly to direct the Secretary of State to produce the evidence in question and secondly, in the event of a refusal to comply with that direction, to consider whether the Secretary of State is thereby seeking to shelter from scrutiny an indefensible decision.’"

Mr Commissioner Jacobs never tires of reminding LA's that they cannot cancel claims. They can only revise or supersede decisions. I would argue that the council does not have grounds for revision or supersession , and so there can be no overpayment to be recovered.

Thanks for that reply.

Just to clarify, is it your view that to refuse to allocate a NINO to a person who has no permission to be in the UK is indefensible?

If so, I would be obliged to know why you consider that to be the case. If we can support that assertion them we may have grounds to JR

Amran

Its indefensible because the refusal will cause injustice to the person who is entitled to claim. There is a statutory requirement put onot the claimant to provide sufficient info for the NINO to be allocated. If sufficient info is provided to confirm the partners identity etc a refusal is indefensible.

I had a vague memory that new rules about NINOs were introduced recently so I've been scrolling through the News items. I found it in an article on 10.11.2006 which basically says that regulations have been passed to prevent NINOs being issued to anyone with no right to work in the UK. Sorry I don't know how to put the link into this posting. I can't quite see from this what the position is of someone who wants it for a benefit claim only as I haven't looked at the wording of the regulation itself. But though a spouse usually has the right to work I presume she lost it once her leave expired.

This at least indicates that the reason for refusal - depending when it was - might be not just lawful but required, and not a matter of whim.

The Regulations are The Social Security (National Insurance Numbers) Amendment Regulations 2006 SI 2006 No. 2897

I know the explanatory note is not part of the Regs, but I have reproduced it for simplicity because lookin g at it makes it clear that the Regs dont prevent an application for a NINO in repect of a partner who is to be incl;uded in an HB/CTB claim

"These Regulations amend the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 (S.I. 2001/769).
Regulation 2(a) provides that a person who is required to apply for a national insurance number because he is an employed earner or self-employed earner must provide a document described in Part 1 or 2 of the Schedule to the Immigration (Restriction on Employment) Order 2004.

Regulation 2(b) requires a person to apply for a national insurance number if he is required to produce one when he qualifies for a student loan under the Teaching and Higher Education Act
1998 or the Education (Scotland) Act 1980.

A full regulatory impact assessment has not been produced for this instrument as it has no impact on the costs of business, charities and voluntary bodies."

Maybe I am missing something here, but it seems to me that the reason for refusal of HB is failure to comply with s.1(1A) of the SSAA. That is satisfied by providing an NI no, providing information so the number already issued can be traced, or applying for one. As I understand the situation here the claimant has applied for a NI number - the regulation says nothing about the SofS then having to provide one in order for the claim to be treated as valid. One can have all sorts of interesting arguments about whether the SofS is being unreasonable in not allocating a number, but surely the fact of the application satisfies the SSAA?

Simon Ennals

Just noticed my last post said I was at French & Co - havn't been there since Aug 05. Hopefully this post is more accurate -

Simon Ennals
Essential Rights Legal Practice

Why is she considered an overstayer ? spousal visa's don't usually expire. The no recourse is for two years and if they forget to apply for a change of status then the no recourse continues, but the right to remain in the UK also continues.

Thanks for these replies

I believe that she is an overstayer as she was only granted limited (probationary) leave to remain in the UK for 2 years. When that leave expired without an application for indefinite leave to remain (settlement) she then has no permission to remain in the UK and is an overstayer who is liable to administrative removal

As for a mere application meeting the requirements of s. 1(1)A of the SSA 92 isn't the problem here that (1B)(b) states that the requirement is met where an application for a NINO is made and which is accompanied by sufficient evidence "enabling the NINO to be issued".

If the evidence supplied indicates that the person is not entitled to a NINO then how can that requirement be met?