Claims and Notification: Provision and Verification of a NINO
The Tax Credits (Claims and Notifications) Regulations 2002, Reg 5(4), (6) and (8)
It is a condition of entitlement to WTC/CTC that a valid claim is made. A valid claim should include:
- information or evidence to confirm that the NINO they have provided belongs to them, or
- information or evidence to enable their NINO to be traced if it is unknown.
If either of the claimants do not have a NINO, they must apply for one.
They must provide sufficient information or evidence, which will allow a NINO to be allocated to them by a DWP or DSD District Office.
There are two exceptions to the above, they are:-
- where an officer of the Commissioners for HM Revenue & Customs decides that the person who made the claim had a ‘reasonable excuse’ for not having a NINO or being able to provide evidence to allow one to be issued, or
- where any person who is included on a claim is subject to immigration control and falls within the meaning set out in section 115(9)(a) of the Immigration and Asylum Act 1999 (see below) and to whom a NINO has not been allocated.
The term ‘reasonable excuse’
The term ‘reasonable excuse’ is not defined in law. What amounts to a reasonable excuse will vary from case to case, and there can be no hard and fast rules setting out the types of excuses that are, or are not, reasonable. It is a matter for the officer’s discretion.
Making the discretionary decision
It is important that when making a discretionary decision of this type, the decision itself is one that is reasonable. This concept is often called “Wednesbury reasonableness.”
Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1947). Commissioner’s Advice to Inspectors (Direction 1) under Social Security Act 1998 section 37(5)(a)
It is possible that there is more than one reasonable outcome on a case. This would derive from the individual circumstances of each case. The term reasonable would include that the officer has considered and evidentially recorded all facts of the case. The officer has exercised discretion and interpreted and applied the law (in this case under The Tax Credits (Claims and Notifications) Regulations 2002, Reg. 5 (4) before 5 (6)). That the officer has taken all relevant and not irrelevant considerations into account and that they acted fairly without bias having given the claimant the opportunity to put their case forward.
Interpreting the law
Interpretation means giving the law and directions their correct meaning. There is only one correct interpretation of the law or the directions - the accurate one.
Acting fairly means to act in accordance with the principles of natural justice, which are the right to be heard and the rule against bias. The right to be heard consists of (1) the claimant’s right to know the case against him or the reasons for the decision in the review context and (2) a fair opportunity for the claimant to put his case or make his own comments.
Some aspects of decision-making are constrained by very narrow directions, which are binding and do not allow for the exercise of discretion, for example, eligibility. In other areas of decision-making, there is a duty on the officer to exercise their discretion. This applies, in particular, when deciding whether to make an award and the amount of the award.
The fact that evidence has been recorded should mean that it has been taken into account and accepted or rejected appropriately. As a broad principle, if the officer states they have taken something into account it will usually be appropriate to accept that it has been taken into account unless:
- it is an important point and is not reflected in the decision; or
- the decision on a particular issue is one the officer could not reasonably have reached, had he genuinely taken account of the point.
If the officer has not taken proper or appropriate account of the relevant considerations of the case it will usually be apparent in the outcome of the decision.
Section 115(9)(a) Immigration and Asylum Act 1999
Specifies that “a person subject to immigration control” is a person who is not an EEA national and who requires leave to enter or remain in the UK but does not have it.
Following a change in DWP Regulations (2009) NINO’s will no longer be issued to people residing in the UK illegally. These people will still have to verify their identity at an identity interview (usually held at a DWP office) but they will no longer receive a NINO after this interview.
A further change to the Tax Credit Regulations is that HMRC will (from and including 6 April 2009), no longer pay the second adult element on any WTC claim where the couple is not responsible for a child or qualifying young person and one member of that couple is subject to immigration control under section 115(9)(a) of the Immigration and Asylum Act 1999.