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

Section 1(1B)(b) of the Social Security Administration Act 1992 requires a claimant without a National Insurance number to provide information or evidence that in fact justifies allocation of a number. Material that merely appears genuine is insufficient.

For an advance payment, the Secretary of State may in principle assess whether all conditions of entitlement are likely to be satisfied before verification is complete. A blanket policy of never making that assessment is unlawful. A two-stage verification and allocation process was not irrational, given the need to balance prompt and accurate payment with fraud prevention.

These were conjoined appeals by Ms Bui and Ms Onakoya from the Upper Tribunal (Administrative Appeals Chamber), which had dismissed their judicial review claims in [2022] UKUT 189 (AAC).

Both claimants had applied for Universal Credit without National Insurance numbers. Their claims were delayed while their identities, immigration status and entitlement to numbers were verified. They challenged the refusal to make advance payments before that process was complete and the Secretary of State’s two-stage administrative practice.

The central issues were whether section 1(1B)(b) required verified information before entitlement could arise, whether regulation 5 of the Payments on Account Regulations permitted an advance payment before verification, and whether the administrative process was irrational.

Lord Justice Nugee gave the judgment of the court. Lord Justices Edis and Underhill agreed. The appeal was allowed on Ground 1 to a limited extent; Grounds 2 and 3 were dismissed.

1. National Insurance number requirement. Section 1(1B)(b) of the Social Security Administration Act 1992 requires an application for a National Insurance number accompanied by information or evidence that does in fact justify allocation of the number. It is not enough that the material appears on its face to support the application. The anti-fraud purpose of the Social Security Administration (Fraud) Act 1997 reinforced that construction. The Secretary of State must determine whether the evidence justifies allocation when deciding the claim. If it does not, no award is made. Ground 2 therefore failed.
2. The requirement is not otiose. Once the claim is approved, section 1(1B)(b) crystallises entitlement from the date of the initial claim, rather than from a later claim made after allocation of a National Insurance number.
3. Administrative process. A rationality challenge faces a high hurdle. The Secretary of State was entitled to balance prompt payment against accurate payment and fraud prevention. It was rational to reserve specialist, security-cleared officers for cases which appeared to require National Insurance number allocation, after ordinary checks had been completed. Ground 3 therefore failed.
4. Advance payments. Regulation 5(1)(b) of the Social Security (Payments on Account of Benefit) Regulations SI 2013/383 refers to the conditions of entitlement generally. Those conditions include the section 1(1B) requirements. They need not have been conclusively satisfied before the Secretary of State can consider whether it appears likely that they will be satisfied. In principle, an advance payment may therefore be made before National Insurance number verification, provided the other regulatory conditions, including financial need, are met.
5. The Secretary of State’s practice of never considering likelihood before verification was complete was flawed. Whether likelihood can be assessed depends on the facts of the individual case. The court did not prescribe the administrative arrangements required to implement the power, and left the appropriate relief for further submissions.

• Court of Appeal (Civil Division): Allowed Ground 1 to a limited extent and dismissed Grounds 2 and 3.
• Upper Tribunal (Administrative Appeals Chamber): In [2022] UKUT 189 (AAC), dismissed the conjoined judicial review applications.