[2024] UKUT 340 (AAC)

On appeal against a decision that a claimant is not entitled to benefit because he or she does not satisfy section 1(1A) of the Administration Act, a FTT is not confined to considering whether the Secretary of State’s decision – and thus his approach to section 1(1B) – was reasonable on the evidence before him and consistent with the relevant law. Rather, the FTT is engaged in a rehearing of the question of whether the claimant satisfies the requirements of section 1(1B) (R(IB) 2/04 at paragraphs 13-15 and 19-33). In effect, it must apply for itself the tests in section 1(1B) in the light of the evidence that is now available to it, which could in principle include any evidence of identity that was brought to light by the claimant or the Secretary of State after the date of the decision under appeal (cf. R(DLA) 3/01 at paragraph 58).

On appeal, a FTT should establish precisely what steps the Secretary of State has taken in relation to section 1(1B). In particular, it should ensure that it is provided with (a) copies of all information and evidence that the claimant provided when claiming and during the Secretary of State’s subsequent investigations (including proper accounts of any interviews that have been conducted), and (b) an informative summary of what has been fed into what tools with what results. However, the tribunal is not, in my submission, bound to follow in the Secretary of State’s footsteps. It will be up to it to decide for itself how to approach and apply the tests in section 1(1B). For example, where, as here, the Secretary of State has found that section 1(1B) is not satisfied without determining whether the specialist tools available to a NiNo allocation officer can trace a NiNo for a person with the claimant’s alleged details, but the tribunal is of the view that it would be best to establish whether a NiNo exists for such a person and then consider whether the claimant and that person are one and the same with the benefit of the information relating to the NiNo-holder that DWP’s records contain, then it is entitled to direct the Secretary of State to carry out this investigation and provide it with an account of its methods and findings. In the end, it will be for the tribunal to decide whether a NiNo allocated to the claimant has been identified and (if not) whether the claimant has established his identity to such a degree of confidence that a NiNo can properly to be allocated to him. In short, in my submission, one way or another, it will fall to the tribunal to make a fresh, evidence-based appraisal of whether the claimant is who [she] says [she] is.

establish what evidence the Secretary of State has requested from the claimant, and what her responses were; and

establish what computer searches the Secretary of State had conducted with a view to tracing an existing NINO for the claimant, and what the results were;

determine whether the tests in sections 1(1B)(a)(i) and (ii) had been properly investigated and applied;

if sections 1(1B)(a)(i) and (ii) were not met, determine, for the purposes of section 1(1B)(b), whether:

finally decide, in the light of the foregoing, whether: