UC refused, NINO refused, sick client

It’s not going to solve your client’s immediate problem but the employer shouldn’t be giving out temporary NINO’s as they are not accepted by HMRC anymore. As such, one could ask questions about what has been happening to any NIC’s or tax your client has paid.

What if my employee has a temporary NINO?
If an employee gives you a NINO beginning with the letters ‘TN’ – this is a temporary (TN) National Insurance number. It may indicate that the employee does not have a proper NINO. TN numbers are not permitted to be used and will not be accepted by HMRC.

They will either need to apply for a proper NINO (if they have never had one) or try and retrieve it from HMRC (if they have lost or forgotten it) – we look at both of these options below.

What if my employee has a temporary NINO?

Paul, the employer has issued wage slips and HMRC have sent client a letter with her tax code using the temp nino, she has been refused a nino as she is said not to have the right to work by whoever issues nino’s , however as HMRC have used her temp nino on letters to her it all seems rather bizarre, the employer is a BIG organisation employing hundreds of polish staff so I expect they have to use temp nino’s to get any wages processed for new employers,
I am beginning to think the NINO issue is a red herring, its the UC refusal that I want to concentrate on and how to challenge it, she claimed EUSS on the 30 06 so is jut in time so why are UC playing hard ball ?????

Diogenes,

1. I agree that she needs to challenge the UC refusal. The grounds of challenge at revision stage would be that although she had no NINO then she had made an application for one and provided sufficient evidence of this to enable one to be allocated which means she met the NINO requirement in s.1(1B)(b) of the Social Security Administration Act 1992.

2. The current difficulty with such a challenge is that a 3 judge panel of the Upper Tribunal in R(Bui and Onakoya) v SSWP [2022] UKUT 189 (AAC) could be taken as having decided that without a NINO a person is simply not entitled (ie that s.1(1B)(b) requires an actual NINO to be issued). An appeal to the Court of Appeal in that case is to be heard on 30/03/2023. Hopefully it will win. But it could, I think, potentially be argued that where the reason for refusing a NINO was not that information had not been provided but that there was said to be no entitlement to the NINO the case does not have this effect.

3. I also think that the client should immediately make a new application for UC. As soon as she gets a journal page following that application she should say that she wants her application treated as also an application for a NINO- please follow the process you said you follow in Bui etc.

4. If the DWP are at all hesitant about doing this then I would think about letter before action etc.

Martin, thanks for this, the local JC+ are being helpful and have offered to apply for a new NINO for the client, I don’t think its the NINO issue that has caused the UC refusal but maybe I am wrong, I know that benefits could be aid without a NINO in the past but this new decision seems to have scuppered that, OK we will ask for an MR and apply for a new NINO , but why the first NINO was refused does not make sense as she had applied to the EUSS by the cut off date !!!!!!
any more help appreciated
Many thanks

Diogenes- sorry, I think I have focussed too much on the NINO issue when, as you say, that is not the reason for refusal of UC. A colleague at CPAG has pointed this out for me…..

The issue is whether or not the client is entitled to rely on protected EU law rights of residence- that comes down to whether or not she is within the scope of the Withdrawal Agreement.

ADM 19/21 explains the issue like this:

Claimants who made an EUSS application prior and up to 30.06.21 7. Where an EEA or Swiss national, in scope of Article 10 of the Withdrawal Agreement, made a valid application to the EUSS prior to the end of the grace period on 30.06.21 and that application is yet to be fnally determined, they are protected by the Withdrawal Agreement. Additionally, they are protected if they are appealing a Home Offce (HO) refusal decision to grant them EUSS. This means that they can continue to reside and access benefts as they did before the end of the grace period. Decision Makers (DMs) should ensure that reviews are set for these claimants to check when they are fnally granted status.

When we look at the “scope of Article 10 of the Withdrawal Agreement” the only relevant bit, for someone who moved post 31/12/2020 and is not a full family member but rather a durable partner is article 10(4):

“4.  Without prejudice to any right to residence which the persons concerned may have in their own right, the host State shall, in accordance with its national legislation and in accordance with point (b) of Article 3(2) of Directive 2004/38/EC, facilitate entry and residence for the partner with whom the person referred to in points (a) to (d) of paragraph 1 of this Article has a durable relationship, duly attested, where that partner resided outside the host State before the end of the transition period, provided that the relationship was durable before the end of the transition period and continues at the time the partner seeks residence under this Part.”

So the issue under that is providing evidence of her relationship predating 31/12/2020. If she can do that then arguably she is within scope of the Withdrawal Agreement and so ok.

DWP could perhaps argue that they have not, as yet, decided whether to facilitate her entry and residence under article 10(4) and so she is not yet within scope. However, I think the counter to that would be to refer to article 18(3) which seems to say she has the rights pending the decision on the application.

Sorry for going down the wrong route.

Martin, thanks for this, I do tend to have cases with many facets and am not always good at expressing the salient points so no worries about the NINO. this is really useful stuff and I will get it loaded up to DWP as the basis of an MR, once we have chackled the durability of the relationship, but we do havea   letter from the client’s partner describing her as his ” life partner” so that may help
Thanks again to all contributors

Martin, help please or anyone, any news on the NINO case law ???

the NINO issue has raised its head again, the DWP have accepted claim in principle after MR, they just want proof of employment which we have, BUT the DM asked if we could provide a NINO , all we have is a temp NINO issued by the employer, its not even the standard temp NINO which is T date of birth. cl has been paid on this rogue NINO and HMRC even quoted it a letter they sent the client but it is not like nay NINO I or the DWP have ever seen, CAN UC BE PAID WITHOUT A STANDARD NINO ?????
I fear that when we cant provide one to the DM he will stop the claim in its tracks
PS ok I now know what she has been issued with and its a HMRC temp reference number , cant be used for benefits , I have asked DWP to apply for a proper NINO though the client did apply and was refused as the Gov say she has not proved she has a right to work !!!!!!bizarre as she has been working and paying tax for months and has applied for EUSS in the time limits