25 May 2023 - In a judgment handed down on 25 May 2023 the Court of Appeal held that the Department for Work and Pension’s (DWP) practice of refusing to pay Universal Credit advance payments on the basis that someone doesn’t have a National Insurance Number (NINO) is unlawful. 

The judgment follows a joint appeal by two individuals represented by Central England Law Centre (CELC) and Child Poverty Action Group (CPAG). Both clients had successfully applied for Universal Credit but experienced delays of several weeks before they received their payments. The DWP refused to put Universal Credit into payment on the basis that the clients did not have a NINO. The DWP also refused to provide advance payments on the same basis.  

Advance payments are available to Universal Credit claimants in financial hardship who are not able to wait for their first ‘standard’ Universal Credit payment that comes at the end of a five-week assessment period, if it appears to the DWP that it is ‘likely’ that they will be eligible for Universal Credit. The DWP’s position was that it is not possible to determine whether it is ‘likely’ that someone will be allocated a NINO, and therefore that they cannot make advance payments to Universal Credit claimants without a NINO.  

CELC and CPAG argued that the DWP’s interpretation of the legislation was wrong and that its blanket practice of refusing to make advance payments to UC claimants on the basis that they don’t have a NINO is unlawful.  

The Court allowed the appeal on this ground, holding that the DWP’s blanket practice of refusing to pay advance payments simply on the basis that a claimant does not have a NINO is flawed. The Court held that the legislation does not prevent the DWP from making advance payments to someone who doesn’t have a NINO.  

The judgment is a result of hard work and collaborative working by CELC and CPAG over multiple years. It was crucial to be able to rely on the breadth of evidence from both organisations for this case to succeed. We thank CPAG for their collaboration.

Michael Bates, Head of Public Law at CELC, said:

“The transition to mainstream support for those whose immigration status has been recently regularised has been problematic for many years. Delays in allocating NINOs and the knock on delays to benefits payments has left many facing destitution just at the point of increased need. This judgment now means that the DWP will be required to consider putting benefits payments in place almost immediately. Not only is this a positive outcome for our clients but it will also remove the need for costly emergency expenditure by local authorities who are often left to pick up the pieces.”

Kasper Meidell, caseworker at CELC, said:

“This is an important judgment. It addresses a really serious problem which is that destitute Universal Credit claimants who don’t have a national insurance number have been left without any income and vulnerable to significant delays. The DWP will now have to consider their requests for advance payments in line with other applicants and cannot refuse to provide these just because someone doesn’t have a NINO. The judgment should mean that fewer destitute claimants go for long periods without support.”

Claire Hall, Head of Strategic Litigation at Child Poverty Action Group:

"New Claim Advances are the only thing stopping some UC claimants from spending 5 weeks in real hardship while they wait for their first payment. It is vital that all claimants can access one—especially considering that the DWP can verify a claimant’s identity and can assess whether they are likely to be entitled to UC. This is an important win and must be implemented by the DWP urgently. The government must also fundamentally change the nature of New Claim Advances to ensure that those receiving them are not later pushed into debt as the government recoups those payments through reducing monthly UC payments.  Following this judgment the DWP must offer the option to apply for a New Claim Advance to all claimants, whether they have a NINo or not."

CELC will now await how the DWP will implement the judgment and will provide further updates on any amendment to DWP’s policy and practice. Universal Credit claimants who experience financial hardship should request advance payments if they wish to do so and following this judgment they cannot be refused simply on the basis that they don’t have a NINO.  

The full judgment R (on the application of Ngoc Hong Thi Bui) v Secretary of State for Work and Pensions and R (on the application of Idowu Onakoya) v Secretary of State for Work and Pensions [2023] EWCA Civ 566.