Terms & Conditions

[lord smeagol]

A claimant claims as a single person in October 2004. In February 2005 his partner moves in who is a foreign national, she does not apply for a NINO and he does not tell us she’s moved in. He continues to receive benefit until August 2006 when a change reduces his entitlement to Nil. He makes a new claim shortly after and declares his partner. Partner then attends interview for NINO allocation.

My questions:-

Does the requirement for providing a partners N.I number relate only to the ‘making of a claim’? In other words, does the fact that the claim made in October 2004 was perfectly legitimate, and the partner joining the household is just an ‘amendment’ to that claim, mean that she does not need to fulfil the requirement of having an N.I number (or apply for one), until the next claim is made? This is what I am leaning towards but i’m not 100% sure. It would seem very bizarre that a new claim cannot be paid if it includes a partner that has no NINO, yet a partner with no NINO can be freely added to an already running claim.

If this is not the case and there is still a requirement for the partner to have a NINO (or apply for one) when joining a claim, would it be right, in the scenario above, to cancel the claim back to when she first moved in and only pay benefit from the date she applied for a NINO? Or can the fact that she has now applied for a NINO be considered retrospectively. My thinking is that it can’t be considered retrospectively and the claimant would be overpaid from January 2005 to August 2006.

Thoughts and comments appreciated.

[Kevin D]

s.1; subsections 1A & 1B of the SSA 1992 apply:

new.hbinfo.org.com/menu2/acts/ssaa1992.shtml#1

Also see Sec of State v WILSON (2006) EWCA Civ 882:

new.hbinfo.org.com/menu2/caselaw/sofs_v_wilson_2006.doc

In my view, subsection [b:e1055438ac]1B(a)[/b:e1055438ac] requires the condition to be satisfied at the time of claim, [u:e1055438ac]BUT[/u:e1055438ac], subsection [b:e1055438ac]1B(b)[/b:e1055438ac] does not refer to a time at which the condition must be satisfied. Subsection [b:e1055438ac]1A[/b:e1055438ac] is crystal clear – no benefit entitlement unless subsection 1B is satisfied [b:e1055438ac]in relation both to the person making the claim [u:e1055438ac]and to any other person in respect of whom he is claiming benefit[/u:e1055438ac][/b:e1055438ac].

But, you may not need to worry about the change. If the change was beneficial, the usual one month rule applies for late notification. So in this case, if there is no good reason for late notification of the change, no retrospective change applies. Even if you went down the route of revising the claim to nil entitlement (for no NINO), any overpayment would in any case be subject to underlying entitlement.

Regards

[lord smeagol]

Thankyou for the response, I see your point regarding 1B(b) not refering to any particular time in which the condition must be satisfied, and from that it is logical to assume that there is no entitlement for any period where the claimant is claiming in respect of a partner with no NINO.

I cannot see however, how beneficial change rules or underlying entitlement can be a relevant factor when the claimant is simply ‘not entitled’ to benefit. The underlying entitlement is surely nil, as he is not entitled to claim, and there is no beneficial change to consider as it would not be right to add the partner to the claim. Again it comes down to the fact that the claimant is simply ‘not entitled to benefit’ for that period. Is my logic flawed here?

Futher discussion and views would be much appreciated

[Kevin D]

In my view, the wording and structure of [b:a832bca040]HBR 104(1)[/b:a832bca040] makes it clear that underlying entitlement would apply. [b:a832bca040]HBR 104[/b:a832bca040] makes an assumption that all matters have been remedied.

new.hbinfo.org.com/menu2/hbregs06/104_06.shtml

If it seems nuts that a clmt can be “overpaid” and get away with it under HBR 104; but a clmt gets (correctly) nilled at the outset and gets zero benefit, I would agree. But, HBR 104 exists, so must be applied.

Regards

[lord smeagol]

Thankyou again for your views and taking the time to reply, I still dont see how 104 applies though.

In this scenario the overpayment will be the result of a change in circumstances which leaves the claimant in the position where he is no longer entitled to claim benefit.

104 refers to benefit that ‘should have been determined to be payable’ in respect of the overpaid period. In my view no benefit can be ‘payable’ because the change itself, excludes the claimant from any entitlement to HB/CTB

The basis of the claim after it has been remedied to include any misrepresentation or non-disclosure is still one that includes a partner with no NINO. No legitimate award of benefit can therefore be used to reduce the overpayment. Any consideration of entitlement would be contrary to legislation.

Please dont take this the wrong way Kevin, I appreciate your views, but does anyone else have an opinion on this?

discussion and opinions, as always, appreciated.

regards

Mike Cannon

[Anonymous]

OK, Mike, but you ain’t gonna like it, because I agree with Kevin’s reasoning, and that how I’d assess it also. 😉 8)

As he says, it may be daft….. but that’s what it says to me as well!

[Kevin D]

LS: Nope, no offense taken – and I fully understand the request for other opinions.

The point you make about the claim NOT being remedied (i.e. no NINO) is a fair one. But, the snag is, the condition is now satisfied.

If an application for NINO had still not been made, I think your argument on that point may well hold water. It would be the same as a clmt failing to supply evidence of income to enable u/lying entitlement to be assessed (in which case inferences could be drawn – CDs support this view).

Regards

[lord smeagol]

Thanks to both, I have no problem with being persuaded otherwise, just want to make sure that I do what is right 🙂

Kevin, I see your point, could I just throw in one ‘last’ argument though, as it is central to my view point, and possibly have your take on it?

A person claims benefit, but at the time of the claim the partner had no NINO. Two weeks after the claim the Partner attends the allocation interview, benefit is presumably only payable from when the NINO allocation interview took place, and not from the actual date of claim. Even though the partner now satisfies the critiera of having applied for a NINO and the claimant is eligible to claim benefit, this is not the case before the interview took place. There is still no entitlement to benefit for this previous period.

Using this logic and applying it to 104, does this not still hold true? There is no benefit that can be ‘determined as payable’ because the partner had not applied for a NINO during any part of the overpaid period.

Regards

Mike Cannon

[lord smeagol]

Kevin – I understand you not wishing to continue any further with this debate , clearly it’s not up to you persuade me one way or the other, you have given your view on the matter, to which I am grateful.

In the absence of any differing opinions, and judging by the number of people that have viewed this topic, I must conclude that all agree with your interpretation. I have therefore decided to go with this view and use 104 to reduce any overpayment

Thanks again for your help

Regards

Mike Cannon

[Kevin D]

Sorry Mike – this thread had slipped below the radar and I’ve had other things on my mind.

At first glance, the “at-the-time” argument seems entirely reasonable (and, morally, it probably is – but that’s a strictly subjective and personal view).

However, the best way I can think of to answer it is to point to an analogy.

Scenario: At the time of the claim, the clmt fails to disclose he has a particular source of income. As with the “no NINO” case (at the time), the LA pays HB. Months later, the undisclosed income comes to light & the clmt cooperates in providing full details and proof.

Arguably, the failure to disclose should result in a defective claim (for failing to comply with HBRs 83 & 86 at the time of the claim). But, even if you follow that line (& plenty of LAs wouldn’t), the income is NOW known and therefore underlying entitlement is due – even though the clmt failed to satisfy the HBRs mentioned above.

If, however, the clmt had failed to cooperate and rectify the claim, then I’d agree that there would be nil entitlement – just the same as if the NINO situation had not NOW been rectified.

Does that help? Erm, I really hope so…. 🙂

Regards

[lord smeagol]

Ah yes I see exactly where you are coming from now with that analogy. I think I was getting too bogged down with this individual case and not thinking laterally enough 🙂

A defective claim would result in no ‘entitlement to benefit’, just as no NINO results in no ‘entitlement to benefit’. On that basis I can see how, once the conditions to enable entitlement to be determined have been satisifed, there is no reason at all to think that underlying entitlement is due in the former and not the latter.

thankyou again

regards

Mike Cannon.

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