The King (on the application of Ngoc Hong Thi Bui) v Secretary of State for Work and Pensions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Nugee,Lord Justice Edis,Lord Justice Underhill |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] EWCA Civ 566 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: CA-2022-002123 |
[2023] EWCA Civ 566
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Nugee
and
Lord Justice Edis
Case Nos: CA-2022-002123
CA-2022-002131
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mrs Justice Farbey, Upper Tribunal Judge Wikeley and Upper Tribunal Judge Church
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Drabble KC, Tom Royston and Rosalind Burgin (instructed by Child Poverty Action Group) for Ms Bui
Richard Drabble KC and Darryl Hutcheon (instructed by Central England Law Centre) for Ms Onakoya
Edward Brown KC and Talia Zybutz (instructed by the Treasury Solicitor) for Secretary of State for Work and Pensions
Hearing date: 30 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal is about Universal Credit ( “UC”). It concerns the gap between a person claiming UC and receiving it, and whether the Secretary of State can make payments on account during that period. The specific question concerns those who claim UC but who do not have a National Insurance Number ( “NINo”) at the time of making a claim.
UC is only payable to those who make a claim. In simple terms the process is as follows. The claimant makes a claim for UC. It is then for the Secretary of State for Work and Pensions ( “the Secretary of State”) to decide the claim (although in practice this and other decisions are made by officials in his department, the Department for Work and Pensions ( “the DWP”), on his behalf). If the decision is that the claimant is entitled to UC, an award is made. Once an award is made the benefit is put into payment.
It necessarily however takes some time for the decision to be made. What is more, UC is payable by reference to assessment periods of a month, and is paid in arrears, only having to be paid within 7 days of the end of each assessment period. That means that when a person claims UC, they will not be paid UC, even if the claim is decided promptly in their favour, for some 5 weeks after making a claim.
The Secretary of State has power under regulations to make a payment on account of benefit to a person who has made a claim for benefit which has not yet been determined and is in financial need, if it appears likely to the Secretary of State that the conditions of benefit are or will be satisfied. These payments on account are known as advance payments. Very many applicants for UC apply for, and receive, advance payments to cover them in the gap between claiming UC and UC coming into payment. Decisions on advance payments are made quickly, often on the same day.
There is a problem however for those who do not have a NINo. It is by statute a condition of entitlement to UC, like other social security benefits, that the claimant either has a NINo at the time of claiming or, if they do not have one, applies for one to be allocated, providing information or evidence enabling that to be done. The DWP treats a claim for UC by a person who does not have a NINo as including an application for one to be allocated. The practice, as explained in detail below, is for one set of officials first to check that the claimant is otherwise eligible for UC, and then for the claimant's entitlement to a NINo to be verified by a specialist team. Only once that has been done will the claim for UC be accepted.
In such a case the Secretary of State takes the view that no advance payments can be made until the end of the verification process. This is on the basis (in summary) that it is not possible to assess whether a claimant is “likely” to satisfy the conditions for benefit until that point. The practical effect is that a claimant for UC who does not have a NINo cannot access either UC itself or advance payments pending the verification process, and may be entirely without income for that period.
These two appeals concern individuals who did not have NINos and who applied for UC. In each case there were significant delays in processing their claims due to administrative error. They have each now in fact been paid what they are entitled to. But their cases form a convenient vehicle to examine the questions of law that arise. They each brought a claim for judicial review. The two cases were heard together in the Upper Tribunal (Administrative Appeals Chamber) by Farbey J (the Chamber President) and Upper Tribunal Judges Wikeley and Church ( “the UT”). In a decision issued by the UT on 18 July 2022 at [2022] UKUT 189 (AAC) they dismissed the applications for judicial review. The claimants now appeal with permission granted by Lewis LJ.
Statutory framework – (1) UC
It is convenient to set out the relevant statutory provisions at the beginning. They can be divided into three groups. The first are those specifically dealing with UC. The second are those which deal with the administration of social security benefits generally. The third are those dealing with interim payments or payments on account.
So far as the first group of provisions is concerned, UC was introduced in 2013 by the Welfare Reform Act 2012 ( “WRA 2012”), initially for a small cohort of claimants, and was later expanded until national coverage was achieved in December 2018. Part I of the WRA 2012 (ss. 1 to 43) concerns UC, and Chapter 1 of Part I (ss. 1 to 12) deals with entitlement and awards. The first group of sections (headed “Introductory”) consists of ss. 1 and 2. These provide that a benefit known as UC is payable in accordance with Part I (s. 1(1)), that it may be awarded either to a single person or to a couple jointly (s. 1(2)), and that a claim may be made for UC by a single person or members of a couple jointly (s. 2).
The next group of sections (headed “Entitlement”) consist of ss. 3 to 6. These provide that claimants are entitled to UC if they meet the basic conditions and the financial conditions (s. 3), specify the basic conditions and financial conditions (ss. 4 and 5 respectively), and provide for certain restrictions on entitlement (s. 6). The basic conditions specified in s. 4(1) are as follows:
“ 4 Basic conditions
(1) For the purposes of section 3, a person meets the basic conditions who—
(a) is at least 18 years old,
(b) has not reached the qualifying age for state pension credit,
(c) is in Great Britain,
(d) is not receiving education, and
(e) has accepted a claimant commitment.”
The financial conditions specified in s. 5 are that a claimant's (or joint claimants') capital is below a prescribed amount, and that their income is such that if they were entitled to UC, the amount payable would not be less than any prescribed minimum.
The next group of sections in Chapter 1 (headed “Awards”) consists of ss. 7 and 8: s. 7(1) provides that UC is payable in respect of each complete assessment period within a period of entitlement (the period during which entitlement to UC subsists), and s. 8 sets out how awards are calculated. This is supplemented by the final group of sections in Chapter I, namely ss. 9 to 12 (headed “Elements of an Award”).
The remaining Chapters of Part I contain provisions relating to claimant responsibilities (Chapter 2) and supplementary and general provisions (Chapter 3) respectively.
Various regulations have been made for the purpose of WRA 2012. The Universal Credit Regulations SI 2013/376 ( “the UC Regulations”) contain further provisions about such matters as entitlement and the calculation of awards. Regulation 9 for example expands on the basic condition in s. 4(1)(c) WRA 2012 that a person “is in Great Britain”. It provides that, subject to exceptions, a person is to be treated as not being in Great Britain if he is not habitually resident in the United Kingdom, Channel Islands, Isle of Man or Republic of Ireland (reg 9(1)); and is not to be regarded as habitually resident there unless he has a right to reside in one of those places (reg 9(2)). Regulation 21 concerns assessment periods. It provides that an assessment period is a period of one month beginning with the first date of entitlement, and each subsequent period of one month during which entitlement subsists (reg 21(1)).
Further regulations are found in the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations SI 2013/380 ( “the UC etc Claims and Payment Regulations”). Part 4 of the regulations (regs 45 to 56) concerns payment of benefit, which is defined so as to include UC (reg 2). Regulation 45 provides that subject to the other provisions of Part 4, benefit is to be paid in accordance with an award as soon as is reasonably practicable after the award has been made. Regulation 46 provides for payment of benefit by direct credit transfer to a bank account. Regulation 47 concerns payment specifically of UC. It provides the general rule that UC is payable monthly in arrears in respect of each assessment period (reg 47(1)); and that where paid by direct credit transfer it is to be paid within 7 days of the last day of the assessment period.
Statutory framework – (2) Administration of social security benefits
The second group of provisions concerns the administration of social security benefits generally. For a person to receive payment of UC they not only need to satisfy the basic conditions and financial conditions set...
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