CH/4085/2007

DECISION OF THE SOCIAL SECURITY COMMISSIONER
  
1.	I allow the claimant’s appeal.  I set aside the decision of the Oxford appeal tribunal dated 12 July 2007 and substitute the decision the tribunal should have given on the evidence before it.  On 24 November 2006, there were no grounds for revising or superseding the award of housing benefit and council tax benefit made to the claimant and she therefore remained entitled to those benefits.  Consequently, there was no overpayment of housing benefit or council tax benefit and no award of excess council tax benefit.

REASONS

2.	This appeal raises a short but difficult point of statutory construction, the provision in issue being section 1(1B)(b) of the Social Security Administration Act 1992.  I have been greatly assisted by written submissions from Ms Sally Robertson of counsel, instructed by Turpin and Miller, solicitors in Oxford acting on behalf of the claimant, Ms Alison Meacher of counsel, instructed by the Legal and Democratic Services Department of the local authority, Oxford City Council, and Mr Wayne Spencer, on behalf of the Secretary of State for Work and Pensions who has intervened in the proceedings.  The Secretary of State supports the claimant’s appeal but on different grounds, with which Ms Robertson has not agreed.  The local authority disagrees with both the other parties but concedes that the appeal should be allowed in part.  Ms Robertson has suggested that further written submissions may be required and possibly an oral hearing at a later stage but I am satisfied that the parties have provided me with sufficient material upon which I can properly make a decision without either further written submissions or a hearing.  None of the parties will be surprised that I do not entirely agree with any of them.

3.	Section 1(1) to (1B) of the Social Security Administration Act 1992 provides –

“(1)	… no person shall be entitled to any benefit unless, in addition to any other conditions relating to that benefit being satisfied –
    (a)	he makes a claim for it in the manner, and within the time, prescribed in relation to that benefit by regulations under this Part of this Act; or
    (b)	he is treated by virtue of such regulations as making a claim for it.

(1A)	No person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection (1B) below is satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit.

(1B)	This subsection is satisfied in relation to a person if –
    (a)	the claim is accompanied by –
    (i)	a statement of the person’s national insurance number and information or evidence establishing that that number has been allocated to the person; or
    (ii)	information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or
    (b)	the person makes an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated.”

By subsection (4), “benefit” is defined so as to include carer’s allowance, income support, housing benefit and council tax benefit.

4.	In Secretary of State for Work and Pensions v. Wilson [2006] EWCA Civ 882 (reported as R(H) 7/06), the Court of Appeal reversed CH/3801/2004 and held that a claim for housing benefit was made “in respect of” the partner of the claimant, even though the partner was subject to immigration control and was not entitled to have recourse to public funds with the consequence that the amount of benefit awarded to the claimant as a member of a couple could be no greater than it would have been if the claimant were a single person, although it might have been less.  Thus, in that case, where the claimant was a British citizen but his wife was not and had entered the United Kingdom on a visa with a condition that she did not have recourse to public funds, satisfaction of section 1(1B) required the claimant’s wife to have a national insurance number or to have applied for one.  

5.	The present case is similar.  Here, the claimant was not a British citizen at the material time – although she is now – but she had indefinite leave to remain in the United Kingdom and had ceased to be subject to immigration control.  Therefore, she was not excluded from entitlement to benefits by section 115 of the Immigration and Asylum Act 1999.  On the other hand, her husband, whom she had married on 7 January 2005, was subject to immigration control.  He was an Indian citizen and had entered the United Kingdom unlawfully in 2003.  It appears that the claimant was already in receipt of carer’s allowance, income support, child benefit and child tax credit as well as housing benefit and council tax benefit at the time of her marriage.  Her husband lived with her from the date of their marriage until 7 March 2006, when he moved out following a row.  Their child and an older child of the claimant’s continued to live with the claimant.

6.	On 7 August 2006, the claimant called into the local authority’s offices and informed them that her husband had moved back into her home on 4 August 2006.  When asked, she was unable immediately to assist the local authority as to his immigration status.  On 15 September 2006, the claimant’s husband’s solicitors, then Turpin, Miller and Higgins, informed the local authority that he was unlawfully present in the United Kingdom and that they had advised him that he could apply for leave to enter the United Kingdom to live with his wife but that he would have to do so by making the necessary application from outside the United Kingdom.  On 3 October 2006, the local authority suspended payment of housing benefit and council tax benefit and asked the claimant to complete a new “claim” form in both her name and that of her husband.  The completed claim form was received by the local authority on 16 October 2006 and showed that the claimant’s husband did not have a national insurance number.  On 23 October 2006 payment of housing benefit and council tax benefit was reinstated, with a further technical adjustment on 27 October 2006.

7.	On or about 27 October 2006, the local authority sent the Secretary of State a request for a national insurance number for the claimant’s husband on form DCI 1(LA).  Included with the request were the front page of the claim form for housing benefit and council tax benefit, showing the claimant’s husband’s name, address, date of birth and daytime telephone number, the last page of the claim form with the declaration of accuracy signed by both the claimant and her husband, the claimant’s statement that her husband had moved back in with her and the letter from the solicitors dated 15 September 2006.  On 15 November 2006, the Secretary of State’s representative telephoned the local authority to say that a national insurance number would not be issued because the claimant’s husband had not attended an interview but the written decision of the Secretary of State, dated 16 November 2006 said simply that a national insurance number could not be allocated because “Applicant is illegal immigrant – has no right to remain”.

8.	Had the claimant’s husband had a national insurance number, it would have made no difference to the claimant’s entitlement to housing benefit and council tax benefit whether or not he lived with her, because she was in receipt of income support, and it would have made no difference to her entitlement to income support either, because his immigration status meant that her applicable amount took no account of him and because he had no relevant resources to be taken into account.  However, her entitlement to those benefits was potentially affected by section 1(1A) and (1B) once he joined the household, because he did not have a national insurance number.  Those provisions did not affect her entitlement to carer’s allowance because she had not claimed an increase in respect of him and she was not obliged to claim that benefit as one member of a married couple.

9.	In the light of section 1(1A) and (1B), the Court of Appeal’s decision in Wilson and the claimant’s husband’s failure to attend the interview at the jobcentre, the local authority decided, on 24 November 2006, that the claimant was not entitled to housing benefit from 7 August 2006 or council tax benefit from 4 August 2006 and that she had been overpaid housing benefit amounting to £2,769.30 in respect of the period from 7 August 2006 to 20 November 2006 and council tax benefit amounting to £702.49 in respect of the period from 4 August 2006 to 1 April 2007 and that those sums were recoverable from her.  For reasons I have given in CH/3076/2006, I have some doubt as to whether the whole of the sum credited to the claimant’s council tax benefit account up to 1 August 2007 was potentially recoverable as excess council tax benefit, but nothing turns on this point because, if it was not, the same result could have been achieved administratively.  (The local authority had also decided that the claimant had not been entitled to housing benefit and council tax benefit from 10 January 2005 to 7 March 2006 and that £11,092.63 paid or awarded in respect of that period was recoverable from her but, in the light of paragraph 18 of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 and the date on which Wilson was decided, it revised and reversed those decisions and I need say no more about them.)
 
10.	Following the local authority’s decisions, the claimant’s husband applied for leave to remain in the United Kingdom on the ground of two years’ cohabitation and he also sought another interview at the jobcentre in relation to his application for a national insurance number.  On 18 December 2006, his solicitors faxed further information to the jobcentre, including his place of birth.  On 20 December 2006, the Secretary of State’s representative in the jobcentre refused to interview him on the ground that he was not entitled to a national insurance number because he was not working or entitled to have recourse to public funds.  All parties are agreed that that decision was wrong but I have some sympathy for the approach taken by the jobcentre for reasons I will explain below.

11.	After some correspondence, the local authority refused on 17 January 2007 to revise or supersede the decision of 24 November 2006, and a threat of an application for judicial review received by the local authority on 12 January was treated as an appeal both against the decisions that she was not entitled to housing benefit from 7 August 2006 and council tax benefit from 4 August 2006 and against the decisions that there had been an overpayment of housing benefit and an award of excess council tax benefit from those dates that were recoverable from her.  On or about 9 February 2007, the claimant’s husband was eventually allocated a national insurance number, following a threat of judicial review of the Secretary of State’s previous refusal to grant one, and I presume that a new claim for housing benefit and council tax benefit was made shortly afterwards.

12.	On 12 July 2007, the claimant’s appeals against the decisions of 24 November 2006 were dismissed by the Oxford appeal tribunal on a “paper hearing”.  As regards entitlement, the tribunal took the view that the terms of section 1(1B)(b) were not satisfied because the failure of the claimant’s husband to attend the interview and the subsequent decision refusing a national insurance number showed that he had not provided sufficient information or evidence to enable a national insurance number to be allocated.  It followed that there was an overpayment of housing benefit and the crediting of excess council tax benefit and, as regards recoverability, the tribunal found that the overpayment had not been caused by official error as the local authority was obliged to accept the Secretary of State’s decision not to allocate a national insurance number and it was irrelevant that the claimant had not failed to disclose any information she had been asked to disclose and could not reasonably have been expected to know that she was being overpaid or that there had been an award of excess benefit.  The claimant now appeals with my leave.  

13.	Ms Robertson, for the claimant, argues simply that the claimant’s husband had supplied all the information necessary for the grant of a national insurance number which could only be refused on the ground of an applicant had not established his or her identity and that the tribunal was not entitled to rely on the refusal of a national insurance number for the purpose of deciding that section 1(1B)(b) of the 1992 Act was not satisfied.  She submits that the local authority should have included a copy of the claimant’s passport with the application for the national insurance number but observes that the local authority itself was clearly sufficiently satisfied as to the claimant’s husband’s identity to make an award of benefits and she points out that the Secretary of Secretary of State considers the issue of identity at an interview rather than only on the documents.  She therefore submits that, on the evidence before it, the tribunal was obliged to find that the condition of section 1(1B)(b) was satisfied.  She also submits, I think in the alternative, that it should have been apparent to the local authority that the Secretary of State was wrong to refuse to interview the claimant for a national insurance number and it should have suspended payments until one was granted.  In support of this submission, she refers to the approach taken by Mr Commissioner Jacobs in CA/3800/2006.

14.	Mr Spencer, for the Secretary of State, draws attention to CIS/345/2003, in which Mr Commissioner Jacobs held that a decision of the Secretary of State to refuse a national insurance number was a free-standing but appealable decision, made under regulations made under section 182C of the 1992 Act, or, alternatively, was an element of a decision awarding income support so that its merits could be considered within the context of an appeal against a refusal to award income support.  He submits that there are difficulties with the first of those approaches although it had been that approach that was advanced before the Commissioner by the Secretary of State and, in particular, he submits that regulations made under section 182C are not relevant.  He submits that Mr Commissioner Jacobs’ second approach is the better.  In this case, Mr Spencer submits, there had been a refusal of a national insurance number and that was a determination within the housing benefit and council tax benefit decisions that were under appeal.  The refusal was wrong and so, he submits, the tribunal should simply have found that the claimant should have been given a national insurance number and that there were no grounds for superseding the awards of housing benefit and council tax benefit and therefore no overpayment or award of excess council tax benefit.

15.	Ms Meacher, for the local authority, opposes the appeal on entitlement, disagreeing with both the other parties.  She first submits, albeit faintly, that there had been no compliance with section 1(1B)(b) because the local authority had made the request for a national insurance number rather than the claimant.  In the alternative, she argues that the question whether the claimant had supplied sufficient evidence to the Secretary of State was one to be answered by the local authority and that, while the tribunal had not been entitled to find that a refusal to issue a national insurance number necessarily showed that the claimant had provided insufficient information or evidence, it was entitled to find that insufficient information or evidence had been supplied in this case because the claimant had failed to attend the interview.  She points out that, by virtue of paragraph 6(9)(b) of Schedule 7 to the 2000 Act, the tribunal was not entitled to have regard to any event after 24 November 2006, the date of the local authority’s decision, which was before the Secretary of State declined to interview the claimant.  She agrees with the Secretary of State that the regulations made under section 182C are irrelevant but submits that the tribunal was not required to consider whether the Secretary of State had been entitled to refuse a national insurance number but only whether the claimant had provided sufficient information and evidence to enable one to be allocated.  However, she concedes that the overpayment of housing benefit from 23 October 2006 to 20 November 2006 and the excess council tax awarded from 23 October 2006 to 24 November 2006 are not recoverable.  This concession is on the basis that payment should not have been reinstated after the claim form had been received and so the overpayment and award can be attributed to “official error”.  I assume that the payment and award made during that period include sums in respect of the arrears that accrued during the period of suspension from 3 October 2006.  Ms Meacher also submits that the claimant is entitled to both housing benefit and council tax benefit from 20 December 2006, presumably on the backdating of the subsequent awards.  Thus less than three months’ benefit is now in issue.

16.	In response, Ms Robertson agrees that regulations made under section 182C are not relevant but submits that, if that is so, section 1(1A) and (1B) must be disapplied because there is no statutory basis for the allocation of national insurance numbers.

17.	It has to be said that subsection (1B) of section 1 of the 1992 Act is a most unsatisfactory provision in a number of respects, many but not all of which are relevant to this case.  Apart from anything else, it is surprising that subsections (1A) to (1C) were inserted into section 1 of the 1992 Act by section 19 the Social Security Administration (Fraud) Act 1997 at all, rather than being made a freestanding section like section 182C of the 1992 Act, which was inserted at the same time by paragraph 9 of Schedule 1 to the 1997 Act.  Two obvious difficulties, not of direct relevance to this case, appear at once and arise because one usually expects some consistency in the use of language within a single section of an Act of Parliament, even if there is inconsistent usage in different parts of the Act.  In section 1(1), “person” includes a child, who may, for instance, be a claimant of disability living allowance even if an adult is always appointed to act on a child’s behalf.  I doubt that it was intended that “other person” should include a child in section 1(1B).  Secondly, a “claim” is made in order to obtain an initial decision conferring entitlement and it ceases to subsist once it has been determined (see paragraph 2(a) of Schedule 7 to the 2000 Act).  When a claim has been determined in a claimant’s favour, any further decision in respect of the award is made by way of revision or supersession under paragraphs 3 and 4 of Schedule 7 to the 2000 Act, either on an application by the claimant or on the local authority’s own initiative.  Thus, in the present case, where the claimant already had an award of housing benefit and council tax benefit in her favour when she visited the local authority’s offices on 7 August 2006, it seems to me that she was merely reporting a change of circumstances and that the claim form issued by the local authority was merely a convenient device for obtaining information for the purpose of deciding whether the award should be revised or superseded.  The claimant was not making a new claim, even when the completed claim form was received.  It is obvious that the provisions of section 1(1) are not intended to apply to applications for revision and supersession; even less can they apply where there is a revision or supersession on a local authority’s own initiative.  It seems unlikely, therefore, that “claim” in section 1(1B)(a) is intended to be limited to situations where there is a “claim” within section 1(1).

18.	That last issue does not have a direct bearing on this case because one of the few points of common ground between the parties is that the case falls to be determined under section 1(1B)(b), rather than section 1(1B)(a), since the claimant’s husband did not have a national insurance number at the material time.  The case turns on what is meant by “an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated”.  This issue is complicated because the background legislation is sparse and the practice is not quite what the draftsman of section 1(1B)(b) may have anticipated.

19.	A second point upon which all parties are agreed is that Mr Commissioner Jacobs was wrong to hold in CIS/345/2003 that the allocation of national insurance numbers for the purpose of section 1(1B) was governed by regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 (S.I. 2001/769), which is made under section 182C of the 1992 Act.  With respect to the learned Commissioner, the parties are clearly right.

20.	Both Mr Spencer and Ms Robertson have referred to the history of the legislation.  Despite a reference in regulation 9 of the 2001 Regulations to the National Insurance Act 1965, I have been unable to find any statutory reference to national insurance numbers in any enactment that came into effect before 1975.  However, my understanding is that national insurance numbers were in fact introduced when the National Insurance Act 1946 came into effect in 1948.  Their purpose was to enable a record to be kept of a person’s national insurance contributions over his or her lifetime, for a claim to a contributory benefit by a contributor to be linked to his or her contribution record and for the identification of those people covered by the industrial injuries scheme introduced by the National Insurance (Industrial Injuries) Act 1946.  There was a duty on any “insured person” – i.e., an employed person covered by the industrial injuries scheme and potentially liable to pay Class 1 contributions, a self-employed person potentially liable to pay Class 2 contributions or a person wishing to pay voluntary Class 3 contributions – to apply to the Minister for an “insurance card” upon which to affix each week the “adhesive insurance stamp” that denoted the payment of a flat-rate contribution.  The issue of such a card would have involved the allocation of a national insurance number.  The duty to apply for a card was imposed by regulation 2 of the National Insurance and Industrial Injuries (Collection of Contributions) Regulations 1948 (S.I. 1948/1274) which remained in force until 1975, when insurance cards ceased to be required by employed earners upon the introduction of the earnings-related Class 1 contributions.  From 1975, those liable, or entitled, to pay Class 2 or Class 3 contributions remained under a duty to apply for a “contribution card”, by virtue of regulation 43 of the Social Security (Contributions) Regulations 1975 (S.I. 1975/492), but all employed earners, self-employed earners and those wishing to pay Class 3 contributions were placed under a duty to apply for allocation of a national insurance number, by virtue of regulation 38 of the 1975 Regulations, made under paragraph 6(1)(l) of Schedule 1 to the Social Security Act 1975.  That provision of the 1975 Act was subsequently replaced, on consolidation, by paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992, the 1975 Regulations having already been replaced by the Social Security (Contributions) Regulations 1979 (S.I. 1979/591).

21.	Paragraph 8(1)(p) of Schedule 1 to the Social Security Contributions and Benefits Act 1992 was in turn repealed by the 1997 Act at the same time as section 182C was inserted into the Social Security Administration Act 1992.  These amendments were plainly made because, until 1997, national insurance numbers were used only for the purposes relating to contributions and benefits described above (see section 1(4) of the Social Security Contributions and Benefits Act 1992, which limited Schedule 1 to that Act to matters concerning “the computation, collection and recovery of contributions … and otherwise with respect to contributions”), whereas they thereafter assumed a wider importance in the combating of fraud.  In effect, national insurance numbers have become used as unique reference numbers, enabling data matching to take place so that inconsistent claims for benefit, or claims for benefit that are inconsistent with work being performed, may be spotted.  To this end, section 182C(1) and (1A) of the Social Security Administration Act 1992 conferred, when they came into force, a broad power to make regulations requiring a person to apply to either the Secretary of State or to the Inland Revenue (who by then had taken over responsibility for contributions) for a national insurance number.  By virtue of regulation 9 of the 2001 Regulations, the requirement to apply for a national insurance number applies, not only to an employed person, a self-employed person and a person wishing to pay voluntary Class 3 national insurance contributions, but also to all those approaching the age of 16 who are directed to make an application and, since 11 December 2006, to those claiming student loans.  However, there is nothing in regulation 9 that imposes on a person in the position of the claimant’s husband any obligation to obtain a national insurance number.  Nor, I would add, do the 2001 Regulations make any further provision for the allocation of national insurance numbers, which remains the purely administrative decision it has always been.  The duty of the Secretary of State or what is now Her Majesty’s Revenue and Customs to allocate a national insurance number to a genuine applicant who needs one so as to be able to pay contributions and claim contributory benefits exists only by implication, although it is no less of a duty for that.

22.	I agree with Mr Spencer and Ms Meacher that the obligation on the claimant’s husband to apply for a national insurance number must be found in section 1(1A) and (1B) of the Social Security Administration Act 1992.  The reason that the draftsman of the primary legislation did not rely solely on the new section 182C and regulations made under it is plainly that, unless the duty on a claimant of a non-contributory benefit to apply for a national insurance number is linked to entitlement to the benefit, it cannot properly be enforced.  However, I suspect that the draftsman anticipated that the regulation-making power given by section 182C would be invoked to supplement section 1(1A) and (1B) because the legislation as it now stands conspicuously fails to say to whom an application for an insurance number must be made and therefore upon whom lies any implied duty to allocate such a number.

23.	I do not regard that as fatal in the present case.  The legislation can be made to work as long as someone accepts the duty to allocate such numbers and there is implied a duty on the authority responsible for the administration of the relevant benefit to inform the claimant how and to whom the relevant application is to be made.  In this case, the local authority advised the claimant that her husband had to make an application to the Secretary of State and the Secretary of State has accepted that any duty to allocate a national insurance number lay on him.  That is appropriate, given his general responsibilities as regards socials security, including the duty to make schemes for housing benefit and council tax benefit, and it is sufficient for the purposes of this case.  In the absence of any relevant provision in the 2001 Regulations, the duty to make the application is also left to mere implication: if entitlement to benefit depends on the making of an application for a national insurance number, there is an implied obligation to make such an application if the person concerned wishes to receive benefit or to enable his or her partner to receive benefit.  Notwithstanding the lack of legislation, I am not satisfied that the statutory framework is so incomplete that section 1(1A) and (1B) is unworkable and must therefore be disapplied, as Ms Robertson submitted, although I suggest that some appropriate regulations should be made lest, against a different factual background, it proves impossible in another case to fill all the lacunae by implication.

24.	I reject Ms Meacher’s submission that the condition of section 1(1B)(b) was not met in this case simply because the application for the national insurance number was made by the local authority rather than the claimant’s husband himself.  There is some considerable administrative advantage in a local authority sending the application to the Secretary of State, both because there can be certainty that it has been sent and because the local authority can be satisfied as to the information sent with it, and common sense requires that the local authority be treated as acting on behalf of the applicant when sending the application.

25.	However, I agree with Ms Meacher and Ms Robertson that, in deciding whether or not the condition set out in section 1(1B)(b) was satisfied, it was unnecessary for the tribunal to decide whether or not the Secretary of State had erred in refusing to allocate a national insurance number to the claimant’s husband.  Ms Meacher refers to the decision of Mr Commissioner Pacey in CH/1231/2004 and submits that the Secretary of State’s argument, based on the alternative part of the reasoning in CIS/345/2003, is incorrect.  Section 1(1B)(b) merely requires that there has been an application for a national insurance number “accompanied by information or evidence enabling such a number to be so allocated”.  The refusal of the Secretary of State to allocate a national insurance number may indicate that the information or evidence provided with the application was not such as enabled him to allocate a number, but it cannot be conclusive.  It is therefore unnecessary to find, as Mr Commissioner Jacobs did in CIS/345/2003, that an appeal against a refusal to award benefit incorporates an appeal against a decision to allocate a national insurance number, which is, in any event, a difficult notion where the benefit is administered by a local authority, because no-one has suggested that a local authority has a power to allocate a national insurance number.

26.	It is to be observed that there is no requirement that a national insurance number have been allocated before benefit is awarded.  It is sufficient that an application has been made.  That is consistent with the idea that having the national insurance number is not really necessary for entitlement to a non-contributory benefit but is merely a tool in the fight against fraud.  The payment of benefit is not generally to be delayed while the application for the national insurance number is processed.

27.	Moreover, I am not as convinced as the parties are that there is any obligation on the Secretary of State to issue a national insurance number to a person who applies for one for the purpose of satisfying the condition imposed by section 1(1B)(b).  If section 1(1B)(b) does not make the possession of a national insurance number a condition of entitlement to benefit, it is difficult to see why it should be held to imply a duty to allocate a national insurance number.  It seems to me that it would be open to the Secretary of State to take the view that the object of combating fraud was best met in a case like the present through satisfying himself that a national insurance number had not already been allocated and could be allocated but then not allocating one and perhaps allocating some alternative identification number.  That is because, as Ms Robertson pointed out to the Court of Appeal in Wilson, one possible disadvantage in issuing national insurance numbers to people not entitled to work in the United Kingdom is that it may make it easier for them to obtain employment in breach of a condition of leave to enter or remain or when they have no right to remain in the United Kingdom at all.  In other words, going through the process required to consider an application for a national insurance number may itself serve a purpose, without it being necessary to allocate a number at the end of it.  Thus, while the Oxford jobcentre may have misunderstood the Secretary of State’s policy, it is at least arguable that it did not err in law in not allocating a national insurance number on 20 December 2006.

28.	In any event, there are further difficulties with section 1(1B)(b).  First, it is plain that it is not intended that the application must always have been made before the first day in respect of which benefit is claimed.  It is sufficient that it has been made before the relevant decision is made.  Otherwise it would become virtually impossible to backdate claims.  In this respect, section 1(1B) is similar to section 1(1), where it is even more obvious that a claim need not have been made before the first day in respect of which benefit is claimed.  

29.	More important is the issue at the heart of this appeal: what is meant by “information or evidence enabling [a national insurance] number to be so allocated”.  The problem, which appears not to have been anticipated by the draftsman, is that it is not possible for a claimant to satisfy the Secretary of State that a national insurance number should be allocated by way of a postal application.  What the Secretary of State actually requires in order to allocate a national insurance number is sufficient evidence to show that the applicant does not already have a national insurance number (i.e., the evidence that would be required under section 1(1B)(a)(ii) so as to enable a national insurance number to be found if one had been allocated), information that a claim for a benefit requiring an application for a national insurance number has been, or is to be, made and information as to identity so that the Secretary of State can be satisfied that the claimant is genuine.  It is the information as to identity that is the difficulty.  A local authority should satisfy itself as to the identity of those in respect of whom benefit is claimed but the Secretary of State does not rely on the local authority doing so.  Instead, the person concerned is called to “an evidence of identity interview” at a jobcentre and is told what evidence to bring, it being made plain that photocopies are not accepted.  The interview enables the person’s face to be compared with a photograph in a passport, makes it unnecessary for valuable original documents as to identity to be sent by post and enables a person to be questioned to test his or her statements.  However, it has not been the understanding of the parties that the application is only “made” at the interview.

30.	Against this background, the phrase “information or evidence enabling [a national insurance] number to be so allocated” cannot, in my judgment, extend to information and evidence provided at an interview.  This is clear from the fact that the application must be “accompanied” by the information and evidence and, in any event, if Parliament had intended to include the information that is provided at interview, it would in my view simply have made entitlement conditional on a national insurance number being allocated, which it has deliberately not done so as not to delay the award of benefit.  Moreover, the legislation does not specify what information or evidence must be sent with the application because regulation 9(1A) of the 2001 Regulations does not apply.  A person can be expected to send only what he or she has been told to send and the source of that information is likely to be those administering the benefit being claimed.  The jobcentre will presumably ask for information that could have been sent in advance and has been omitted such as, for instance, information as to the applicant’s place of birth, which was not included with the information originally sent by the local authority on behalf of the claimant’s husband in this case.  It cannot be right that a claimant should be penalised because a local authority acting on her husband’s behalf neglects to include information that can perfectly well be provided subsequently.  In my judgment, the information and evidence mentioned in the legislation is only that information and evidence that the person concerned could reasonably have been expected to send when the application was made.  It follows that I do not entirely accept Ms Meacher’s argument in favour of revision in this case and generally prefer Ms Robertson’s.

31.	However, that is not to say that a failure to attend an interview or to supply all the information required will not be relevant to entitlement to benefit.  If a person does not take all the steps necessary to obtain a national insurance number after supplying the initial information and evidence, an adjudicating authority may be entitled to infer that the application for a national insurance number was not genuine, or has ceased to be genuine, and therefore not sufficient to satisfy the statutory condition of entitlement.  That could justify revision or supersession of an award.  Thus, while I agree with Ms Robertson that the tribunal should have found that the claimant had supplied sufficient information and evidence to satisfy section 1(1B)(b), I accept that Ms Meacher is entitled to draw attention to the failure to attend the interview.

32.	On the other hand, evidence of a failure to attend an interview is insufficient to show that an application was not, or has ceased to be, genuine.  Regard must at least be had to the cause of the failure but even a lack of good cause may not indicate a lack of intention to pursue an application.  Social security legislation makes specific provision for cases where a person has failed to attend a jobcentre to “sign on” or has failed to attend a medical examination.  Here, no specific provision is made but adjudicating authorities must act fairly.  Some enquiry must be made as to why the person failed to attend the interview and as to whether the person will attend another one.  If no reply is received, it may be appropriate to infer that there was never any intention of obtaining a national insurance number, but that was not the position here.  

33.	In my judgment, the tribunal erred in law in the present case in failing properly to consider the significance of the claimant’s husband’s failure to attend the interview on 15 November 2006.  Had it done so, it would have been bound to conclude that the claimant’s husband’s application for a national insurance number was genuine, which was the real issue.  This is not because the claimant has said that her husband failed to attend the interview because their child was ill and needed to be cared for while she went to look after her grandfather in his home, which may or may not have been the true reason for his non-attendance, but because, even if he had no very good reason for failing to attend the first interview, he clearly did wish to pursue his application for a national insurance number so as to entitle the claimant to benefit, as is shown by all his subsequent actions.  It is possible that the jobcentre would ordinarily have offered a second interview automatically and did not immediately do so in this case because it had erroneously believed that the claimant’s husband was not entitled to a national insurance number anyway, due to his immigration status.  In any event, it was incumbent on the local authority to ask the claimant whether her husband was intending to pursue his application for a national insurance number before it revised her award of benefit.  By the time the case came before the tribunal, the facts spoke for themselves, it being legitimate to have regard to events after the local authority’s decision for the purpose of determining whether the application had been genuine from the outset.

34.	I agree with Ms Robertson that one important distinction between this case and Wilson is that, in Wilson, the claimant’s wife had had no intention of applying for a national insurance number, because she was concerned it might prejudice her application for leave to remain in the United Kingdom, and her husband had argued his case on the basis that it was unnecessary for her to do so.  In the absence of fairly clear evidence that a claimant or partner lacks the intention to apply for a national insurance number, an adjudicating authority should, in my judgment, be slow to find a lack of entitlement to benefit, although delay may justify suspension while enquiries are made or the application for the national insurance number is completed.

35.	In the present case, I consider that the local authority was right to reinstate payment when it received the claim form, contrary to what is now suggested by Ms Meacher and, in her alternative submission, Ms Robertson.  However, when it received the information that the claimant’s husband had failed to attend the interview on 15 November 2006, it should have suspended payment again while it made enquiries, rather than revising the award and it should have reinstated the award again in December when it became clear that the claimant’s husband was trying to have another interview arranged and that it was the jobcentre that considered an interview to be unnecessary.

36.	For these reasons I allow this appeal and substitute for the tribunal’s decision the decision the tribunal should have given, which is that the claimant remained entitled to housing benefit and council tax benefit throughout the period in issue.  Thus no question arises as to the recoverability of any overpayment or excess council tax benefit.

	(signed on the original)	MARK ROWLAND
		Commissioner
		8 October 2008