DMG memo 03/25 & ADM memo 03/25: Identity of Claimants and Children – Effect of Upper Tribunal
Decision. . These memo’s gives guidance on the decision of the UT in PHC v SSWP (UC) [2024] UKUT 340 (AAC).
In the above case the claimant made an online claim for UC for herself and her four children. She subsequently attended an interview to establish her identity, but she failed to provide the evidence of identity that the DM expected, either during the interview or afterwards. Her claim was disallowed. On appeal, a FTT upheld the DM’s disallowance. The claimant appealed to the Upper Tribunal.
THE UT’S DECISION
The UT has considered five alternative decisions that in principle could be given where a claimant has failed to provide evidence of identity. Four of these have been found to be wrong in law, and one to be correct. The UT has also explained the consequences of failing to prove the identity of a child. Although the decision concerns UC, its findings apply equally to the benefits listed in DMG 02176 and the corresponding legislation that relates to them (SS (C&P) Regs, regs 7 & 32; SS CS (D&A) Regs, regs 16 & 18).
THE INCORRECT APPROACHES
- First in correct approach: suspension and termination
- Second incorrect approach: disallowance as penalty for failing to comply with a request for evidence
- Third incorrect approach: disallowance for not claiming in the required manner
- Fourth incorrect approach: disallowance for not claiming in the required manner
THE CORRECT APPROACH
. The UT has held that the question of the claimant’s identity must be approached by way of the condition of entitlement that relates to NINos. . Guidance on this condition can be found HERE.
The UT has held that the NINo-related condition of entitlement does not apply to children. Instead, entitlement to the child element depends on the claimant proving the child’s existence and identity on the balance of probabilities.
CLAIMS
- The identity of a claimant must be approached by way of the condition of entitlement that relates to NINos. This sets out three alternative conditions:
- The claimant must provide a statement of their NINo and information or evidence that shows that that number has been allocated to them.
- The claimant must provide information or evidence that enables a NINo that has been allocated to them to be traced.
- The claimant must both apply for a NINo and provide information or evidence that enables one to be allocated to them. The test is ultimately whether the claimant has shown that they are who they say they are to such a degree of confidence that a NINo can properly be allocated to them.
- A claim by a person who has failed to prove their identity can only be disallowed when all three conditions are found not to be satisfied. If a claimant fails to pass the first test, the second must be considered. If the claimant fails that test as well, then the third must be applied. Relevant operational procedures should be followed to refer the case to a specialist NINo allocation officer. The allocation officer will invite the claimant to make an application for a NINo and submit evidence in support of it. If an
application for a NINo is made, they will also make the determination as to whether the available evidence properly allows a NINo to be allocated. This determination should be incorporated into the final outcome decision on the claimant’s entitlement under the claim. - None of the three conditions requires the claimant to provide specific items of evidence of their identity as a condition of passing its test. In particular, an application for a NINo made by a person who requires one for benefit purposes is not subject to the list of acceptable forms of evidence that applies to applications for NINos made by employed earners, self-employed earners, persons who wish to pay voluntary Class 3 contributions, and student loan applicants. A CHB UT decision that said that the list
applies to a benefit claim made by an employed earner should not be followed. For a benefit claimant, the obligation to apply for a national insurance number is found in the condition of entitlement that relates to NINos itself. The application is not made under the regulation that imposes the prescriptive list of acceptable evidence
