How to treat Nigerian nationality with no NI for U/E

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  • #39609
    ben steventon
    Participant

    Hi All,

    I have a quite complex case that has landed with me as an appeal and, after meeting with the customer, I have the office divided on how to deal wih this case.

    DWP have processed a Fraud case against the claimant and withdrawn I/S due to LTAHAW, back to 2009. Her partner is from Nigeria and for the period of the claim, has no NI number. He was working (self confessed) for cash in hand, but has no way of proving how much he earned.

    This is where I am struggling dealing with how to tackle the case. U/E has not been invited, but if we did, how would it work? Would we add the partner to her claim and input a notional income? Should he be added to her claim as he had no NI, if so how do we deal with his earnings?

    My concern is that the DWP seem to be able to class them as LTAHAW even though he had no NI, but the general consensus in the office is that we can’t add him to her claim due to the lack of NI.

    To throw another spanner in the works, the appeal is against partner being included on the claim, as she is adament he wasnt resident for the period in question, so if we do add him to her claim, it will make things much more tricky to deal with.

    #112755
    Chris Robbins
    Participant

    Ben, this is where people get confused because they persist in looking at U/E as though they are ‘awarding’ benefit for the O/P period. You are not. What you are doing is offsetting an O/P, and the normal evidential rules for making an award do not apply.
    Your process should be:
    Are you satisfied there are grounds for superseding your customer’s award: i.e. do you believe she failed to declare a partner in household?
    If yes, then what was his income? If you have no evidence then for the period of the O/P all you can do is draw an inference which is reasonable. That may give maximum O/P, some O/P or may lead to none at all.
    As far as her ongoing award is concerned, she will need to satisfy normal evidential requirements. That will involve ‘partner’ applying for a NINO.
    If a Tribunal find no LTAHAW then the original award continues undisturbed. If they are satisfied on the LT point then any future award will only be payable once the evidence requirements have been met.

    #112758
    ben steventon
    Participant

    Thanks Chris,

    I understand regarding U/E, but the real trouble I am having is how do we apply the customers partner for the period of U/E. As I see it, he had no NI so we cant add him as a person to the claim, do we then add his assumed or proven (whichever it ends up being) income to the claimant as if it were her income?

    #112761
    Chris Robbins
    Participant

    If for the sake of argument your customer had declared the partner at the time he joined, what would you have done? Asked for a NINO or sent a NINO enquiry form off to DWP. You WOULD then have been able to pay as long as you were satisfied that a proper application for a NINO had been made.
    You can’t do that now. It is all inference. On the balance of probability do you think the partner would have pursued an application for a NINO. If you do then the inference means you can apply underlying entitlement on the basis you accept there would have remained valid entitlement as your claimant’s partner would have applied for a NINO. The fact he didn’t in fact have one at that time is irrelevant.

    #112767
    Kay_Tade
    Participant

    Agree with Chris, first thing is normal entitlement rules[Forget the UE cos it a next stage], then the OP calc…not sure I envy you..

    All I can say, based on your post, is, how reasonable is the info you have..as I always say LTAHAW is hard enough in itself, but I think it’s been made easier, thank god, with the changes in 2008 to the justice system[More, I pray happens, don’t even say UC!!!].

    A tribunal, FtT or ortherwise, now have [almost] the same say[maybe not the exact same powers] when it comes to criminal proceedings[I’m sure there is a case still outstanding, regarding this, and hope someone can let us know more if they can].

    Before I digress, I think, look at all your info and recalc the O/P. If they appeal so be it, you can’t help what situ you find yourself, if the info you have says he is a H/Hold member, based on the evidence, then it’s fact, so all the rules kick in. As it always seems the case the story may change as you go along but I can’t see how that’s a problem right now. You can do another recalc on the O/P based on new info to reduce/increase it… This is based on the assumption the DWP have closed the LTAHAW case?

    Well, good luck, maybe not of much any help, cos I don’t see it going away. 🙁

    #112806
    Anonymous
    Guest

    Couple of threads relating to a similar case I dealt with a few year’s ago:

    Partner with no NINO

    Ask for correction of decision notice or request set-aside?

    #112805
    Anonymous
    Guest

    If you are happy that the evidence points to the partner living with the claimant since 2009, and you reckon a tribunal will come to the same conclusion, I’d be tempted to go for the Scorched Earth approach: No entitlement for the entire period because the partner did not satisfy section 1(1B) SSAA 1992. However, you may as well send the DCI1 form now in case either (i) the tribunal allows the appeal or (ii) they make a new claim.

    See Wilson (which pre-dates the recent changes but is still relevant in the case you describe):

    Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882


    Might also be worth looking at CH/4085/2007 which clarified that the NINO requirement applies to changes in circs as well as claims.

    However also see Peter Barker’s forum posts on the Jim Bowen approach (“let’s have a look at what you could have won…”)

    #112810
    ben steventon
    Participant

    Some interesting points there, thanks to all. After much discussions in the office and after speaking to management and the DWP, we have decided to await the outcome of the Income Support appeal before we tackle the case. It seems pointless for us to go to the nth degree trying to prove LTAHAW if the outcome is that DWP decide to re-award I/S.

    Thanks again to all that replied.

    #112809
    Anonymous
    Guest

    A Talbot hatchback!

    Don’t forget as well that the requirement of s1(1A) to (1C) is not simply to [b]have[/b] a NINO – the requirement is to [u]prove to the Council[/u] that you have one, or if you have not got one to make the application. It seems to me you cannot penalise someone for failing to satisfy an evidence requirement until they have been asked to satisfy it in the first place. To disallow benefit for the entire period on the basis that the claimant’s partner did not proactively sort out the NINO without being asked is a bit like saying that you will never apply u/e in any case where the claimant failed to provide evidence of their true earnings at the time of the original award. That would be all u/e cases then!

    #112811
    Anonymous
    Guest

    You may as well make your decision now, that way the appeals can be heard together. If the IS appeal is disallowed and you then make a decision withdrawing HB, there will be fresh appeal rights and the first tribunal’s decision will not be binding.

    By all means give the claimant a chance to prove that the partner had a NINO when he joined the household in 2009, or that he promptly applied for one. :p

    #112813
    ben steventon
    Participant

    The partner did not have an NI until July/August 2011 (new claim for HB/CTB submitted since). Prior to that he was unable to obtain one as he had no right to reside in the UK, hence our problem. He has recently been granted limited leave to remain until 2013 due to them getting married.

    #112816
    Kevin D
    Participant

    As an HB/CTB appeal has been made, I don’t think the LA has any legal authority to delay that appeal pending the outcome of the IS appeal. In my view, the best approach is to send the HB/CTB appeal to TTS AND ask for the LA to be a party to the IS appeal and for the DWP to be joined as a party to the HB/CTB appeal. When dealing with appeals for LAs, I never had any problem with this approach (er, apart from TTS’s lack of communication with ALL parties….).

    #112818
    ben steventon
    Participant

    Your probably right Kevin, but the avenue of appeal opened up issues that the claimant wasnt happy with, and on that proviso she was more than happy to delay the appeal.

    The problem is that the claimant (quite understandably) doesnt want to request U/E as she believes in doing so, she is incriminating herself as she is effectively admitting to her partner being resident to do so. On the other hand, I explained that U/E is likely to reduce the overpayment, whereas if she loses the appeal, she will owe all of the overpayment.

    I’m getting a headache :((

    #112819
    Anonymous
    Guest

    I assume the claimant realises that the same issues will be raised in the IS appeal? Why would he want to proceed with the IS appeal but delay the HB appeal? Doesn’t make sense.

    I’d get the submission done now. regardless of the claimant’s request. If the IS appeal makes it to tribunal, and the judge was aware that there was a HB appeal outstanding, they would most likely direct that the appeals be heard together. You’d just be wasting time if you delay preparing the submission.

    #112820
    Anonymous
    Guest

    …or are you waiting to see if the DWP revise internally and lapse the appeal? Even if IS was reinstated, section 1(1B) still needs to be satisfied, so you might still have an overpayment.

    I would suggest:
    Forget about the DWP. You need to make your own decision as to whether they were LTAHAW. If the evidence is strong enough to show that the partner was resident, you need to decide whether 1(1B) was satisfied. If not -> proceed to tribunal. If it was, the DWP’s decision becomes relevant. If IS is not reinstated you can revise based on some kind of inference as to the partner’s earnings, or proceed to tribunal and let a judge decide.

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