Ngoc Hong Thi Bui, R (on the application of) v Secretary of State for Work and Pensions

For a claimant without a National Insurance number, the entitlement gateway in section 1(1B)(b) of the Social Security Administration Act 1992 requires information or evidence that has been verified and actually enables a number to be allocated. Material which merely purports to do so is insufficient.

Until verification is complete, it will ordinarily not appear likely that all entitlement conditions are met for the purpose of an advance payment. The anti-fraud purpose of the statutory scheme justifies that result. A claim and ostensibly sufficient documents do not create an assertable proprietary right to universal credit before the gateway is met. Any indirect disadvantage to foreign nationals is justified as a proportionate means of efficiently administering benefits and preventing fraud.

The claimants, foreign nationals with leave permitting recourse to public funds, applied for universal credit without National Insurance numbers. In each case, an administrative error delayed the Department for Work and Pensions in initiating its internal National Insurance number procedure. Universal credit was subsequently paid, including a back payment in Ms Bui’s case.

They sought judicial review of the Secretary of State’s practice of withholding universal credit, including advances, until a number had been allocated. They contended that section 1(1B)(b) of the Social Security Administration Act 1992 required only an application accompanied by documents capable in principle of enabling allocation. Ms Bui also relied on A1P1 and indirect race discrimination under the Equality Act 2010.

The claims were transferred from the Administrative Court and heard together. The central issue was whether verification and allocation must occur before payment.

1. The judicial review claims were dismissed. Section 1(1A) makes satisfaction of section 1(1B) an additional condition of entitlement. For a claimant without a National Insurance number, section 1(1B)(b) requires an application accompanied by information or evidence that actually enables allocation, rather than material which merely appears sufficient.

2. The provision was enacted as an anti-fraud measure. Read in that context, it requires verification of the claimant’s information or evidence before public funds are awarded or paid. Although the subsection does not expressly make allocation of a number a condition of entitlement, payment cannot in practice be made until verification establishes entitlement to a number.

3. The Tribunal declined to apply an earlier observation that benefit payment should not generally await processing of a National Insurance number application. That observation was obiter and did not state a statutory-interpretation analysis. The other earlier tribunal decisions did not resolve the point.

4. An advance under regulation 5 of the Social Security (Payments on Account of Benefit) Regulations 2013 requires it to appear likely that entitlement conditions are met. Before verification under section 1(1B)(b), that inquiry is neutral, not likely in either direction. The Regulation could not alter the meaning of the primary legislation, even if this left it without practical operation for claimants subject to that gateway.

5. Ms Bui had no assertable right to universal credit, and thus no possession for A1P1 purposes, before verification was complete. In any event, delay for fraud-prevention verification was justified. The claimants established a prima facie particular disadvantage to foreign nationals, but the National Insurance number system was a proportionate means of efficiently administering welfare benefits and preventing fraudulent claims.

• Upper Tribunal (Administrative Appeals Chamber): Heard the transferred judicial-review claims together and dismissed them.
• High Court, Administrative Court: Permission to apply for judicial review was granted in each claim. Ms Bui’s claim was transferred under section 31A(3) of the Senior Courts Act 1981; Ms Onakoya’s claim was also transferred to the Upper Tribunal.