Payment of HB where partner has no NINO

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  • #23391
    Salmond1
    Participant

    I have been handed a case where HB/ CTB has been refused on the grounds that the partner has no NINO. They are married and the claimant is receiving single award of I.S and partner has no recourse to public funds. They are both liable for the rent as have both signed the lease agreement. Below is a commissioners decision which clearly states that HB/CTB can be awarded, but based purely on the claimant.

    Does anyone know of a decision which supercedes the below?

    [u:b97361517a][b:b97361517a]CH/3801/2004[/b:b97361517a][/u:b97361517a] – Decision date 07/06/05.

    Please help!!! 😕

    #12306
    gerryg
    Participant

    https://hbinfo.org/menu2/caselaw/sofs_v_wilson_2006.doc

    This one is the Court of Appeal decision from the CD you asked about.

    #12307
    Kevin D
    Participant

    [quote:2040faa3dc]Below is a commissioners decision which clearly states that HB/CTB can be awarded, but based purely on the claimant. [/quote:2040faa3dc]

    That CD was overturned in the Court of Appeal. Where a clmt has a partner, BOTH must satisfy the NINO requirement. If neither one does so, then there can be no HB to the other, not even as a single person.

    The case in question is:

    [b:2040faa3dc]Secretary of State for Work & Pensions v Wilson 2006[/b:2040faa3dc]
    http://www.bailii.org/ew/cases/EWCA/Civ/2006/882.html

    Be careful though – there are aspects that are considered to be, well, um, not well considered…… 🙂 . This earlier thread may be of interest:

    new.hbinfo.org.com/forum/viewtopic.php?t=6801

    Regards

    #12308
    Salmond1
    Participant

    Correct me if i’m wrong but that reads that normal service has resumed and no HB can be paid until an application for NINO has been made and a letter from the Home Office has been provided confirming a valid claim for NINO has been made.

    Is this correct?

    #12309
    Anonymous
    Guest

    An application for a NINO is made to either the DWP or HMRC

    I recently tried to help a client apply for a NINO and the person on the application line insisted that an application for benefit or tax credits had to be made and the application would be received via the department administering the benefit.

    This being the case I suggest that (despite Wilson) all the person needs to do is to provide you with the information necessary to apply for a NINO for the partner.

    If the DWP or Revenue refuse a NINO for no good reason, it is arguable that the HB should still continue. (see CIS/0345/2003)

    #12310
    Anonymous
    Guest

    DWP can’t refuse to take an application for HB/CTB purposes. They can refuse to give a NINO if the person fails to co-operate with them or supply evidence, but they can’t refuse the application.

    DWP’s own NINO guide covers this so if their staff say otherwise tell them to read the guide.

    As LAs a DCI1(LA) has to be completed and sent to DWP to authorise the need for the NINO, if we don’t do that DWP have no justification to prove a need.

    Make Payments on Account while awaiting the NINO

    #12311
    APT
    Participant

    [quote:1f12c24176=”JCB”]
    As LAs a DCI1(LA) has to be completed and sent to DWP to authorise the need for the NINO, if we don’t do that DWP have no justification to prove a need.[/quote:1f12c24176]

    And I would also send a covering letter stating that unless a NINO is provided the HB/CTB award must be refused. I’ve lost count of the number of DCI1(LA)s that have come back saying “NINO not issued as not working”.

    [quote:1f12c24176=”JCB”]Make Payments on Account while awaiting the NINO[/quote:1f12c24176]

    Once the DCI1(LA) is issued to the DWP you can decide the claim rather than make a POA.

    #12312
    Anonymous
    Guest

    I agree that you could decide the claim, but as the partner may not comply with the interview requirements or even turn up (I’ve seen it happen) I would stick with POA so that I can make the easy nil entitlement decision on the claim and recovery action.

    #12313
    Anonymous
    Guest

    [quote:ccb64db953]Once the DCI1(LA) is issued to the DWP you can decide the claim rather than make a POA.[/quote:ccb64db953]

    If you follow the [i:ccb64db953]Wilson[/i:ccb64db953] decision, that is not the case.

    [quote:ccb64db953]43. Miss Robertson’s submission is that, although Mrs Wilson did not satisfy section 1(1B)(a), since she did not have a national insurance number, the information provided in the claim for housing benefit was sufficient to comply with section 1(1B)(b): there was enough to enable a national insurance number to be allocated, as is shown by the fact that an official of the authority was able to complete a form (labelled DCI 1LA) requesting a national insurance number.

    44. The simple answer to that submission is that section 1(1B)(b) requires the person concerned to make an application for a national insurance number to be allocated. It is the application which must be accompanied by information or evidence enabling such a number to be allocated. In this case there was no application. Mr Wilson’s housing benefit claim form did not constitute such an application, and the subsequent communications in the form of a telephone conversation with Mr Wilson and solicitors’ letters to the authority made it plain that no application was being made by Mrs Wilson. Accordingly, no question can arise of Mrs Wilson having satisfied section 1(1B)(b).[/quote:ccb64db953]

    In other words, the sending of a DCI1(LA) does not constitute an application for a NINO [i:ccb64db953]by the claimant or partner[/i:ccb64db953], so the requirement has still not been met. I recall in an earlier thread on this subject that one or two people were advocating that one could turn a blind eye to this part of the [i:ccb64db953]Wilson[/i:ccb64db953] decision, but personally I would be somewhat unrelaxed about disregarding the judgement of three Appeal Court judges.

    #12314
    aosulliv
    Participant

    Completely agree. The issuing of a DCI1(LA) is an administrative function for the L/A in order to assist the application for a NINO. It is not an application in itself

    #12315
    Anonymous
    Guest

    Technically Amos is correct following Wilson, but my case is that the DWP and HMRC are not accepting applications direct from people who are not seeking work.

    They are taking the DC11 as the application

    #12316
    Anonymous
    Guest

    I would hesitate to take the Copurt’s comments about DCI1LA out of context.

    The main point of the Wilson case was whether Mrs Wilson had to satisfy the NINO requirements. Having established that she did have to, the Court then briefly considered whether in fact she had done so. At the time of the claim in question, Mrs Wilson made it absolutely clear that she had no intention of cooperating with the NINO application process – because her solicitor had convinced her that her leave to be in the UK would not be extended if she did that. The fact that a DCI1LA had been issued without her involvement did not satisfy the requirement.

    Most real cases are a bit messier than that. Partners from overseas usually have no NINO for the simple reason that there has not been any need for them to get one up to now, and given the patchy knowledge in local DWP offices described above, by far the easiest way to get the ball rolling is for the LA to issue the DCI1LA. In recognition of this, some councils have inserted a piece of cleverly-worded text on their claim forms along the lines of “if you do not have a NINO, are you prepared to authorise the council to arrange to have one issued?” and hey presto, the DCI1LA is an applicatioon on the claimant’s behalf. Job done.

    In summary would take the Wilson judgment with a pinch of salt, because
    (i) the main point was whether she had to comply, how she should do so was almost an afterthought and very much a secondary issue in the case;
    (ii) the circumstances of her failure to comply with s 1(1B) were unusual – the case doesn’t tell us much about people who are perfectly willing to cooperate and the Council is just trying to find the most efficient way forward.

    #12317
    Anonymous
    Guest

    I think Peter has hit it all spot on there.

    Personally I can see all sides of this re NINO application.

    On the one exdtreme we have the requirement that a fully accepted application is made to DWP before we pay, for which we might as well wait for the NINO to be issued from my experience as the applications can get rejected any time until the NINO is granted.

    On the other hand it is sometimes considered that the application is being made from the point the claimant conforms to the application process, which is providing us with the information for the DCI 1LA to send on.

    The first is understandible as claimants can cause problems atb any point in the process, but in the days where DWP was taking 6 months to give an appointment as they had huge backlogs this wasn’t fair on the claimant.

    Personally I would still make payment on account once the DCI 1LA is done until I hear differently from DWP, whether to award fully with a NINO or close and recover due to non-compliance. I think it’s the safest and fairest option all round.

    #12318
    lord smeagol
    Participant

    The only problem with this view is that the information and evidence that must accompany the application to enable the NINO to be allocated is not provided with the DCI 1LA, and is not in fact provided until the interview.

    From this perspective section 1(1B)(b) is not satisfied until the interview.

    #12319
    Anonymous
    Guest

    I think Peter Barker has summed the situtaion up, and he would have been well supported by Mr Commissioner Jacobs in CIS/0345/2003.

    I would argue that the information provided on the DCI1, provided everyting asked for on that form is complete, must be sufficient until the DWP ask for more at the interview

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