This guide is aimed at households where one has a national insurance number and the other doesn’t causing (at times) Housing Benefit being refused by the Local Authority. As with all our guides please note the information may become and you should not rely on the advice and templates therein, you should seek independent legal advice.
• Client has indefinite leave to remain in the UK or is a UK Citizen
• Client made an application in for Housing Benefit which was refused on the basis that the Local Authority believed he was living with his partner as husband and wife and that he needed to supply her National Insurance number to the Authority.
The requirement for a national insurance number for all claims under the general provision of sections 1(1A) and 1(1B)(a) of the Social Security Administration Act 1992.
These require the claimant (regardless of their immigration status) to have been allocated a national insurance number or have applied for one to be allocated in order to be entitled to HB/CTB.
An application for a number will be sufficient if the application is accompanied by all the evidence and information required to process it (section 1(1B)(b)). In addition, a claim for benefit should be treated as an application for a national insurance number.
The requirement for a national insurance number also applies to the claimant’s partner.
However Regulation 4 of the Housing Benefit Regulations provides an exception to the requirement for the partner to provide a national insurance number where that partner would be ineligible for HB/CTB because they are:
• a person who is ‘subject to immigration control’; or
• a ‘person from abroad’.
Whether a person is ‘subject to immigration control’ for HB/CTB purposes this is governed by section 115 of the Immigration and Asylum Act 1999 and the regulations made under it. A person will be subject to immigration control if they are a national of any state outside the EEA.
Whether a person is a ‘person from abroad’ is governed by the Housing Benefit Regulations 2006. The exclusion will apply to anyone who has recently entered the UK for the first time and mainly affects EEA nationals.
The test has two elements either of which can disqualify a person from benefit.
• a person will be excluded from benefit if they do not have a ‘right to reside’.
• a person will be excluded from benefit if they are not habitually resident in the UK or the Republic of Ireland.
Persons subject to immigration control
Section 115 of the Immigration and Asylum Act 1999 disqualifies persons who are ‘subject to immigration control’ from certain social security benefits (including HB/CTB).
Section 115(9) defines ‘subject to immigration control’ as being a person who is not a national of an EEA state and who:
• requires leave to enter the UK but does not have it (i.e. an illegal entrant or overstayer or asylum seeker)
• has leave to enter the UK but who is subject to a ‘no recourse to public funds’ condition
• has leave to enter the UK given as a result of a maintenance undertaking
• has leave to enter the UK only as a result of the fact that they are awaiting the outcome of an appeal against a decision to vary or refuse to vary limited leave.
The Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, Regulation 2(1) and paragraphs 1 to 4 of the schedule set out the prescribed categories of person who despite being subject to immigration control are nevertheless not excluded from receiving HB/CTB:
1. A person with limited leave who has previously supported themselves without claiming benefits, but whose funds from abroad are temporarily disrupted, provided that there is a reasonable expectation that their supply of funds will be resumed.
2. Those who arrived who were given leave to remain but are the subject of a maintenance undertaking and either:
o all the sponsors have died; or
o five years have passed since the undertaking was made.
However, further conditions apply in each these three categories before the claimant is entitled HB/CTB:
• In the case of the first category, the award of HB/CTB is limited to a maximum of six weeks within any one leave period. If the disruption of funds has already exceeded six weeks when the application is made there is no entitlement. The application must be made at a time when the person is actually without funds and not after funding has been restored.
• In the case of the second category (maintenance undertakings), the claimant must also be habitually resident (although this is likely to be the case).
• In the case of the third category, the claimant must have a right to reside and be habitually resident. The requirement for a right to reside effectively means that they must have leave (although it does not matter if it includes a public funds restriction), except where they are also an EEA family member.
Applying for a National Insurance Number
In CH/4085/2007, this case suggested that it is possible to fulfil the requirements for HB/CTC cases where an application is made but the National Insurance Number is not granted.
In LCC-v-SSWP (2009) UKUT 74 (AAC), the case decided that the applicant did not need a National Insurance Number but provided information was given to show that they had applied and was to attend an interview was sufficient.
If the partner does not have a NINO (due to no right to work) or is applying for one (and you have proof of same) then you can appeal the decision to receive Housing Benefit.
See attached a letter to Benefits Section NONI though keep our disclaimer in mind.