Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 340 (AAC)

Fecha: 28-Oct-2024

Interpretation Five: disallowance under SSAA 1992 sections 1(1A) and 1(1B)

48.

This interpretation is much more promising. Section 1(1), (1A) and (1B) of the SSAA 1992 (as amended by section 19 of the Social Security Administration (Fraud) Act 1997) provide as follows:

Entitlement to benefit dependent on claim

̶ (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 any 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.

49.

Section 1(1B) provides for three alternative conditions ((1B)(a)(i), (1B)(a)(ii) and (1B)(b)), each of which must be considered in turn. It is only where the claimant fails to meet all three tests that the entitlement condition in section 1(1A) is not satisfied.

50.

This was the case in ED v SSWP, whereJudge Perez accepted the submission made on behalf of the Secretary of State that the claimant was disentitled from the outset of her claim(s) by virtue of section 1(1A) and (1B) (see paragraphs 54-64). I agree with Ms Cowan’s analysis at paragraph 32 of her supplementary submission:

A claimant’s identity is relevant to the condition of entitlement in section 1(1A) and falls to be ascertained by way of the steps in section 1(1B). A decision as to whether the claimant has shown whether he is who he says he is falls to be made under that section and as part of the investigation of the claimant’s entitlement under a claim as made. It is not made during the preceding stage of determining whether the claim has been made in the required manner.

51.

Ms Cowan helpfully further submits as follows:

33.

In the case of a person who does not provide a NiNo when claiming, section 1(1B) envisages a two-step process:

34.

It is first considered whether the information and evidence the claimant has provided allows a NiNo that was allocated to her to be tracked down (see section 1(1B)(a)(ii)). As was noted in paragraph 34 of Bui, in practice “the UC agent carries out basic checks to see if the claimant already has a NINo.”

35.

If no such NiNo is found, an application for a NiNo is made (in practice by DWP on the claimant’s behalf), and then consideration is given as to whether the information and evidence the claimant submits in connection with that application are sufficient to allow a NiNo to be allocated (see section 1(1B)(b)), a matter that will centrally turn on whether the applicant is who she says she is. As paragraphs 35 and 36 of Bui note, in practice this stage of the process is conducted by specialist NiNo allocation officers, and as part of the process they will first return to the question raised by section 1(B)(a)(ii): “On receipt of the form a NINo agent carries out a more advanced check to see if the claimant already has a NINo.” As paragraph 36 of Bui also notes, the NINo allocation officer will also consider whether the claimant has a right to reside in the UK. If it is concluded that the claimant has no right to reside, the NiNo allocation process will stop. The claim will then be disallowed on the right-to-reside grounds instead (e.g. under section 4(1)(c) of the Welfare Reform Act 2012).

36.

In the case at hand, the Secretary of State’s decision can, I submit, plausibly be construed as a finding that the claimant has failed to satisfy sections 1(1A) and 1(1B) for the following reasons:

The claimant has not stated a NiNo that is hers.

The claimant cannot show that a NiNo has been allocated to her because she has not shown who she really is.

A NiNo could not properly be allocated to her because she because she has not shown who she really is.

52.

It follows that section 1(1A) and 1(1B) of the SSAA 1992 set out the correct approach to questions of a claimant’s identity in relation to new claims for UC (and most probably other benefits, although none are at issue in this appeal).

53.

The position with regard to PHC’s children is not quite the same. In the first place regulation 5 of the UC etc (Claims and Payments) Regulations 2013 provides that section 1(1A) (and so by necessary extension section 1(1B)) “is not to apply to a child or qualifying young person in respect of whom universal credit is claimed”. The UC child element is then payable “for each child or qualifying young person for whom a claimant is responsible” (regulation 24(1) of the Universal Credit Regulations 2013 (SI 2013/376)). Assuming that PHC herself can satisfy section 1(1A), then entitlement to the child element under regulation 24 will depend on the Secretary of State being satisfied as to the existence and identity of any children. It is then for the claimant to prove the child’s existence and identity on the balance of probabilities, applying the principles set out in Kerr v Department for Social Development.