Secretary of State for Work and Pensions v Wilson [2006] EWCA Civ 882

Case No C5/2005/2203[2006] EWCA Civ 882
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOCIAL SECURITY COMMISSIONER
Commissioner Levenson
CH 3801 2004
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 29th June 2006
Before
LORD JUSTICE WALLERLORD JUSTICE MOORE-BICKLORD JUSTICE RICHARDS
Between
Secretary of State for Work and PensionsAppellantScott WilsonRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal WordWave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Nathalie Lieven and Katherine Olley (instructed by The Solicitor to the Department for Work and Pensions) for the AppellantSally Robertson (instructed by Messrs French & Company) for Respondent
Judgment
[1]Where a claim is made for housing benefit, section 1 of the Social Security Administration Act 1992 (“the SSAA”) requires a specified condition to be satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit. The condition concerns the provision of information about, or the making of an application for, the person’s national insurance number. The main issue in this appeal is whether, where a claim is made by one member of a couple, benefit is also being claimed “in respect of” the other member of the couple, so that the condition must be satisfied in relation to them both; and whether it makes any difference that the claimant is on income support at the material time.[2]The claim in this case was made by the respondent, Mr Wilson, who satisfied the condition. His wife, who was living with him, did not satisfy the condition. For that reason the relevant authority, Lincoln City Council, decided that Mr Wilson was not entitled to benefit. An appeal by Mr Wilson was allowed by the Appeal Tribunal. A further appeal by the authority was dismissed by the Social Security Commissioner. The Secretary of State was joined as party to the appeal before the Commissioner and now appeals against the Commissioner’s decision. Save for stating in a letter that it supports the Secretary of State’s submissions, the authority has played no part in the proceedings before this court.

The facts

[3]For a proper understanding of the submissions in the case the facts need to be stated more fully.[4]Mr Wilson, a British citizen, was a tenant of Lincoln City Council and had been in receipt of housing benefit and council tax benefit for some time. In April 2003 he got married. His wife was a Thai national who had entered the United Kingdom in January 2003 on a visitor’s visa with a condition that she neither work nor have recourse to public funds. Her application to remain as his spouse was refused on 18 June 2003, but she had leave to remain pending an appeal against that decision. She lived with him in his council property.[5]On 24 June 2003 Mr Wilson submitted a renewal claim for housing benefit. In the claim form he named himself as the claimant but also referred to his wife and made clear that he was living at the property with her. Indeed, he described her as “joint owner or joint tenant” of the property, though the tenancy was in fact in his name and the liability to pay rent was his.[6]On 26 June 2003 he submitted a claim for income support. It is not clear whether this was a renewal claim or a first claim, but it is not in dispute that income support was awarded to him pursuant to the claim or that evidence of his receipt of income support was taken into account in determining his housing benefit claim.[7]On 6 September 2003 the authority notified Mr Wilson that he was entitled to housing benefit from 30 June 2003 “as a single person”, though no particular significance appears to attach to the use of the expression “as a single person”.[8]On 16 November 2003 Mr Wilson submitted a further renewal claim, again stating in the form that his wife was living with him. The payment of housing benefit to him “as a single person” continued.[9]In January 2004 someone at the authority noticed for the first time that no national insurance number had been supplied for Mrs Wilson. The claim form contained a space on the front page for this information. In early February the omission was raised with Mr Wilson and he was advised that his wife should attend an interview with a view to obtaining a national insurance number. But the interview did not go ahead. This was because Mr and Mrs Wilson were advised by solicitors that an application for a national insurance number might prejudice her application for leave to remain in the United Kingdom. In a letter dated 10 February 2004 Mrs Wilson’s immigration solicitors told the authority that she had never applied for housing benefit or a national insurance number and she did not wish to claim any form of benefit. In a letter dated 10 March 2004 solicitors instructed by Mr Wilson in relation to the housing benefit claim explained the reasons more fully as follows:
“Our client informs us that he has told you on countless occasions that it is not possible for his wife to have a National Insurance number due to her immigration status. His wife currently has a restriction on her Visa which does not allow [any] recourse to [any] public benefit and therefore her immigration solicitor has advised her not to make an application for a National Insurance number until her immigration status has been dealt with by the Home Office.”
[10]The letter of 10 March was in response to the authority’s decision, notified to Mr Wilson on 2 March, that he was not entitled to housing benefit from 30 June 2003 as his wife had no national insurance number. Although the view was taken that benefit had been overpaid, the council later indicated that it was unlikely to seek recovery because there had been an official error (presumably in failing to realise the significance of the absence of a national insurance number although Mr Wilson had disclosed the material facts); and, in the event, no recovery has been sought.[11]I have referred already to the subsequent appeals to the Appeal Tribunal and the Social Security Commissioner. The reasons for the decisions of the Tribunal and the Commissioner are best considered after setting out the main legislative provisions.[12]On 12 January 2005 Mrs Wilson applied for a national insurance number, so that the relevant condition became satisfied at last in relation to her. Payment of housing benefit was restored from that date.[13]Income support had continued to be paid throughout. The Secretary of State produced to the court, however, a decision dated 14 February 2005 (revising a decision of 18 January 2005) to the effect that income support was not payable until Mrs Wilson applied for a national insurance number and that the award of income support therefore “failed” until 12 January 2005. This decision had not previously been notified to Mr Wilson.

The legislative framework

[14]By section 1(1) of the SSAA, entitlement to “benefit” (defined by subsection (4) to include any income-related benefit and a wide range of other benefits) is generally dependent on the making of a claim. The section, as amended by the Social Security Administration (Fraud) Act 1997, continues:
“(1A) No person whose entitlement to any benefit depends on his making a claim shall be entitled to the benefit unless subsection (1B) is satisfied in relation both to the person making the claim and to any other person in respect of whom he is claiming benefit. (1B) This subsection is satisfied in relation to a person if – (a) the claim is accompanied by (i) a statement of the person’s national insurance number and information or evidence establishing that the number has been allocated to that person; or (ii) information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or (b) the person makes an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated”
(emphasis added). (a) the claim is accompanied by (i) a statement of the person’s national insurance number and information or evidence establishing that the number has been allocated to that person; or (ii) information or evidence enabling the national insurance number that has been allocated to the person to be ascertained; or (b) the person makes an application for a national insurance number to be allocated to him which is accompanied by information or evidence enabling such a number to be so allocated” (emphasis added).[15]The purpose of the requirement is the prevention of fraud: it facilitates cross-checking between social security claims and the tracing and control of multiple claims.[16]By subsection (1C), regulations may make provision disapplying subsection (1A) in the case of “prescribed descriptions of persons in respect of whom benefit is claimed”. One regulation made pursuant to that provision is regulation 2B of the Housing Benefit (Regulations) 1987 (“the 1987 Regulations”), which provides inter alia that subsection (1A) shall not apply(a) to a claim for housing benefit where the person making the claim, or “in respect of whom” the claim is made, is liable to make payments in respect of a dwelling which is a hostel, or(b) to any child or young person “in respect of whom” housing benefit is claimed.[17]Entitlement to benefits of various kinds, including housing benefit, is governed by the Social Security Contributions and Benefits Act 1992 (“the SSCBA”). As regards housing benefit, section 130 provides:
“(1) A person is entitled to housing benefit if – (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum housing benefit in his case; and (c) either (i) he has no income or his income does not exceed the applicable amount; or (ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made. … (3) Where a person is entitled to housing benefit, then – (a) If he has no income or his income does not exceed the applicable amount, the amount of the housing benefit shall be the amount which is the appropriate maximum housing benefit in his case; and (b) if his income exceeds the applicable amount, the amount of the housing benefit shall be what remains after the deduction from the appropriate maximum housing benefit of prescribed percentages of the excess of his income over the applicable amount.” (a) he is liable to make payments in respect of a dwelling in Great Britain which he occupies as his home; (b) there is an appropriate maximum housing benefit in his case; and (c) either (i) he has no income or his income does not exceed the applicable amount; or (ii) his income exceeds that amount, but only by so much that there is an amount remaining if the deduction for which subsection (3)(b) below provides is made. (a) If he has no income or his income does not exceed the applicable amount, the amount of the housing benefit shall be the amount which is the appropriate maximum housing benefit in his case; and (b) if his income exceeds the applicable amount, the amount of the housing benefit shall be what remains after the deduction from the appropriate maximum housing benefit of prescribed percentages of the excess of his income over the applicable amount.”
[18]The 1987 Regulations contain specific provisions about claims to housing benefit by couples. A “couple” is defined in regulation 2(1) to include “a man and woman who are married to each other and are members of the same household”. Where a claimant is a member of a couple, the other member of that couple is a “partner”. In summary, either member of the couple (but not both) may claim housing benefit, irrespective of which of them is actually liable to pay the rent. Thus, regulation 6(1) provides:
“… the following persons shall be treated as if they were liable to make payments in respect of a dwelling – (a) the person who is liable to make those payments; (b) a person who is a partner of the person to whom sub-paragraph (a) applies.”
Regulation 71(1) provides:
“In the case of a couple … a claim shall be made by whichever one of them they agree should so claim or, in default of agreement, by such one of them as the relevant authority shall determine.” (b) a person who is a partner of the person to whom sub-paragraph (a) applies.”
[19]Housing benefit takes two forms: rent rebates (for council tenants, such as Mr Wilson was) and rent allowances (for private sector tenants). It is not necessary to go into the method of calculation in any detail, but some broad features are important.[20]First, the benefit is means-tested. Section 130(3) of the SSCBA, quoted above, shows that income is a key concept; but capital is taken into account as well. There are provisions for capital to be treated to a prescribed extent as income, and for entitlement to benefit to be excluded if capital exceeds a prescribed amount. Two further points should be noted: i) Section 136(1) provides that where a person claiming an income-related benefit is a member of a “family” (defined in section 137 as including “a couple”), the income and capital of any member of that family shall, except in prescribed circumstances, be treated as the income and capital of the claimant. This is picked up in regulation 19 of the 1987 Regulations, which provides that the income and capital of a claimant’s partner which is to be treated as income and capital of the claimant shall be calculated or estimated in accordance with the provisions of Part VI in like manner as for the claimant, and that any reference to the “claimant” shall, except where the context otherwise requires, be construed for the purposes of Part VI as if it were a reference to his partner. ii) Where a claimant is on income support, then by provisions in Schedules 4 and 5 to the 1987 Regulations the whole of his income and capital fall to be disregarded in the calculation of income and capital for the purposes of housing benefit. In effect, the relevant calculations are treated as having already been carried out at the income support stage.[21]Another key concept is that of the appropriate maximum housing benefit. By regulation 8, a claimant’s maximum housing benefit is to be calculated under Part VIII by reference to the amount of his eligible rent determined in accordance with various regulations. The main provision in Part VIII is regulation 61, by which the amount of a person’s appropriate maximum housing benefit in any week shall be 100 per cent of his eligible rent calculated on a weekly basis, “less any deductions in respect of non-dependants which fall to be made under regulation 63”. Regulation 63 specifies a range of deductions in respect of non-dependants of various descriptions. “Non-dependant” is defined by regulation 3 as meaning any person who normally resides with a claimant, except inter alia “any member of the claimant’s family”. Thus, non-dependant deductions do not apply to a partner of the claimant.[22]A further key concept is that of the applicable amount. Applicable amounts are governed principally by regulation 16, which provides that subject to certain other regulations:
“… a claimant’s weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case – (a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2 … (b) an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family ….”
A higher amount is specified in Schedule 2 in respect of a couple than in respect of a single person, and additional amounts are specified in respect of children or young persons. (a) an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1(1), (2) or (3), as the case may be, of Schedule 2 … (b) an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family ….”

The decisions of the Appeal Tribunal and the Commissioner

[23]The reasoning of the Appeal Tribunal appears from the following paragraph of its statement of reasons:
“The question therefore raised … is whether Mr Wilson is making a claim on his own and also ‘in respect of his wife’. I can find no judicial guidance to assist me. There is no doubt if somebody applies for example for Income Support for himself and his wife and family then he is making a claim on their behalf. I do not accept however that the same can be said of Housing Benefit. Mr Wilson was the sole tenant and it was only he who was legally liable to pay rent. He was making a claim for Housing Benefit in his name for that purpose. Although his wife was of course living in the property with him I do not think it can be said that he is making a claim on her behalf as well for Housing Benefit. It might well be different if they had been joint tenants.”
[24]The basis upon which the Commissioner dismissed the authority’s appeal against that decision was materially different. He stated in his conclusions:
“26. I have no doubt that the phrase ‘a person in respect of whom he is claiming benefit’ in section 1(1A) of the Social Security Administration Act 1992 is capable of including a claimant’s partner with whom he lives, and that in most cases it does in fact include such a partner. 27. However, it seems to me that the injustice of the Secretary of State’s more general argument is demonstrated by the facts of the present case. A claimant lives alone and is correctly in receipt of income support and housing and council tax benefit. The tenancy is and continues to be in his name. He has a national insurance number. He then marries but his wife does not have a national insurance number. She comes to live with him but has no capital or income. She is not allowed to work or to have recourse to public funds. The Secretary of State argues that the claimant would immediately lose his entitlement to housing and council tax benefit because his wife does not have a national insurance number. I cannot accept that this result was either intended or in fact is the consequence of the legislation. The claimant still needs to live somewhere. He still has a level of means that would otherwise entitle him to income support and to passported benefits. 28. Accordingly, I conclude that where a claimant’s partner is not allowed by law to have recourse to public funds, she is not ‘a person in respect of whom he is claiming benefit’ for the purposes of section 1(1A) of the Social Security Administration Act 1992 in relation to a claim for housing benefit. Accordingly, the requirements of section 1(1B) do not have to be satisfied in relation to her.”

The issues

[25]The main issue is whether the Commissioner erred in law in concluding that Mrs Wilson was not a person in respect of whom Mr Wilson was claiming housing benefit and that the condition in section 1(1B) of the SSAA did not therefore have to be satisfied in relation to her.[26]If it is held that Mrs Wilson was a person in respect of whom Mr Wilson was claiming housing benefit, the question arises whether the condition in section 1(1B) was in fact satisfied in relation to her: the case for Mr Wilson is that she made an application within section 1(1B)(b). This issue was not the subject of decision by the Appeal Tribunal or the Commissioner because of their findings on the first issue. Miss Robertson submits that the case should be remitted for a decision on whether Mrs Wilson did make an application.[27]In outline, the respective positions of the parties before us were as follows: i) For the Secretary of State, Miss Lieven submitted that a housing benefit claim is made “in respect of” a person if that person benefits from the claim, and that a claim by a member of the couple is plainly for the benefit of the claimant’s partner as well as the claimant. In any event, consideration of the housing benefit scheme shows that a claim made by a member of a couple is necessarily made in respect of the claimant’s partner as well as the claimant. The partner is an integral part of the calculation of the benefit and is therefore an integral part of the claim itself. Whichever member of the couple makes the claim, the outcome in terms of benefit is the same. The scheme does not permit a member of a couple to claim separately as a single person. Miss Lieven supported her submissions by reference to a decision of Deputy Commissioner Wikeley in Case CTC/2874/2003 concerning a claim for working families’ tax credit by a member of a couple. In the course of her submissions she also suggested that a claim by one member of a couple is necessarily made “on behalf of” both members of the couple. ii) For the respondent, Miss Robertson conceded that where a partner is taken into account as one of the “building blocks” in the calculation of housing benefit, the claim is made in respect of the partner as well as the claimant. But she submitted that that was not the position in the present case, because the claimant was on income support which acts as a “gateway” or “passport” to housing benefit: no further means or needs test is required, and instead there is a simple assessment of the amount of housing costs eligible for housing benefit. It is true that the partner falls to be taken into account at the income support stage and that the income support claim is therefore made in respect of the partner; but once income support is granted, as it was to the claimant in this case, the partner is not taken into account at the housing benefit stage. For that reason the claim to housing benefit cannot be said to be in respect of the partner.[28]As a matter of ordinary language, benefit is claimed “in respect of” a person if the benefit claimed is referable in some way to that person, as where the benefit or some component of it is defined or quantified by reference to that person. I see no reason to depart from that ordinary meaning here. It is supported by numerous instances of such usage in the primary legislation. For example: i) A person engaged in caring for a severely disabled person may be entitled under section 70 of the SSCBA 1992 to a carer’s allowance. For this purpose a “severely disabled person” means “a person in respect of whom there is payable either an attendance allowance or a disability living allowance …” (section 70(2)). Where two people would otherwise be entitled to a carer’s allowance “in respect of the same severely disabled person”, provision is made for only one of them to have the entitlement (section 70(7)). ii) By section 77(1), a person is entitled to a guardian’s allowance “in respect of a child or qualifying young person” if he is entitled to child benefit in respect of that child or qualifying young person and other conditions are satisfied. Child benefit itself is governed by section 141, which provides that a person who is responsible for one or more children or qualifying young persons in any week shall be entitled to child benefit for that week “in respect of the child or qualifying young person, or each of the children or qualifying young persons, for whom he is responsible”. iii) The rate of incapacity benefit is increased in prescribed circumstances “for adult dependants”, but regulations may provide that “where the person in respect of whom an increase of benefit is claimed” has earnings above a prescribed amount there shall be no such increase in benefit (section 86A). By section 88, a person shall not be entitled under or by virtue of that and certain other provisions to an increase in benefit “in respect of more than one person”.[29]It is unsurprising that the primary legislation does not use the same language in the case of housing benefit, since the benefit is not necessarily referable to persons other than the claimant: where a claim is made by a single person living on his own, the benefit claimed will generally be referable only to the claimant. There are many cases, however, where the benefit is referable to other persons as well, in that it is quantified by reference to them. In those cases the benefit can properly be said to be claimed in respect of those other persons.[30]A claim to housing benefit by a member of a couple is just such a case, in that, as explained above, the partner is taken into account in the quantification of the benefit – to the extent that the outcome is the same whichever member of the couple makes the claim. In particular, the applicable amount in the case of a couple is “an amount in respect of both of them” and is in general a larger amount than in respect of a single person.[31]The link between the provisions concerning applicable amounts and section 1(1A)-(1B) of the SSAA can be illustrated further by the position of children. Where there is a child of the claimant’s family, there is an additional applicable amount in respect of the child. It follows, on the view I have taken, that the benefit is claimed in respect of the child. On that basis section 1(1A) prima facie requires the relevant condition to be satisfied in relation to the child. That consequence is avoided, however, by regulation 2B of the 1987 Regulations, which provides that section 1(1A) shall not apply to any child in respect of whom housing benefit is claimed. Thus there is a consistency of approach in the statutory language, and a sensible result.[32]In the ordinary course, therefore, where benefit is claimed by one member of a couple, in my view it is claimed in respect of the claimant’s partner as well as the claimant and the relevant condition has to be satisfied in relation to both of them. Miss Robertson’s concession to this effect was rightly made.[33]Does it make any difference, as Miss Robertson contended, that on the facts of the present case, because Mr Wilson was on income support, no separate calculation was carried out for the purposes of housing benefit, beyond a simple assessment of the amount of housing costs eligible for housing benefit? In my judgment it does not: i) First, if the entitlement to income support was properly determined, Mrs Wilson should have been taken into account at the income support stage in exactly the same way as she would have been for the purposes of a separate housing benefit calculation. The material parts of the two sets of calculations are the same: in particular, regulation 17(1)(a) of the Income Support (General) Regulations 1987 contains a like provision for the claimant’s applicable amount to include, in the case of a couple, “an amount in respect of both of them”. Although the payment of income support then acts as a gateway or passport to housing benefit, without the need to carry out a separate set of calculations for housing benefit, it seems to me that the housing benefit must be taken in these circumstances to be claimed in respect of the partner in just the same way as it would be if there were no income support and a separate but materially identical set of calculations had to be carried out for housing benefit. ii) If Mr Wilson was not in fact entitled to income support, either because he failed to include Mrs Wilson on the income support claim form (as Miss Lieven suggested was the case, though we were not shown the relevant documents) or because Mrs Wilson failed to satisfy the condition in section 1(1B) of the SSAA (which was the basis of the decision of 14 February 2005 that the award of income support “failed”), that would be a further reason for rejecting the argument that the payment of income support caused the normal position under the housing benefit regime to be avoided.[34]I should also mention an additional point touched upon in argument, which was that Mrs Wilson’s inclusion in the calculations under the income support regime or the housing benefit regime would not in practice have affected the outcome: because she was a “person from abroad” the applicable amount attributable to her would have been nil. This appeared to be common ground and we were not taken to the relevant statutory provisions. I did not understand Miss Robertson to rely on these matters in support of her argument that housing benefit was not claimed in respect of Mrs Wilson. In my view she was right not to do so. The material point is that the partner is taken into account in the way I have described, whether or not this produces a different result in the particular circumstances of the case.[35]Another point I should mention is that in the course of her submissions Miss Robertson contrasted a council tenant (rent rebate) case with a private tenant (rent allowance) case. But I did not understand this to be a fundamental part of her argument and we were shown nothing to support the existence of a material distinction between the two situations.[36]For the reasons I have given, I would accept the Secretary of State’s contention that housing benefit was claimed by Mr Wilson in respect of Mrs Wilson as well as himself, and that Mrs Wilson was therefore required to satisfy the condition in section 1(1B) of the SSAA. My reasons, however, do not reflect a wholesale acceptance of the way in which Miss Lieven put the case for the Secretary of State. For example, I would reject the submission that a benefit claim is made in respect of a person if that person benefits from the claim. There is no warrant for equating “in respect of” with “for the benefit of”, and it would create difficulty and uncertainty if one had to ascertain in each case who were the actual beneficiaries of a particular statutory benefit.[37]Nor do I think that any assistance is gained from consideration of whether a claim by one member of a couple is made “on behalf of” the partner. Indeed, it seems to me that the Appeal Tribunal went wrong in equating a claim to benefit “in respect of” another person with a claim “on behalf of” another person, and in holding that because Mr Wilson was the sole tenant he was claiming in his own name and not on behalf of his wife as well, so that she did not have to satisfy the relevant condition. I would be prepared to accept that Mr Wilson’s claim was not made on behalf of his wife, though this had nothing to do with the fact that he was the sole tenant. Under the statutory scheme either of them could have made the claim, irrespective of whether it was a sole or joint tenancy; but it seems to me that, whichever of them made the claim, the claim was his or her own claim and was not also made on behalf of the partner. Benefit was nonetheless claimed “in respect of” the partner, for the reasons given above.[38]The Commissioner, for his part, accepted that “in most cases” a claim by a member of a couple is made in respect of the partner, but he was influenced by the perceived injustice of the Secretary of State’s position to conclude that a partner cannot be a person in respect of whom benefit is claimed if the partner is not allowed by law to have recourse to public funds. There is, however, nothing in the statutory regime to support that exception; and it seems to me that any injustice is more apparent than real.[39]The Secretary of State has made clear that a national insurance number can be applied for, and will be allocated, irrespective of any intention to work and without any conflict with a visa condition prohibiting a person from working in this country. The use of a national insurance number has a non-work-related function in the control of fraud in benefit claims. That view is supported by the contents of an internal departmental document, referred to as the “SNAP [Secure Number Allocation Procedure] Code”, which contains guidance to officials on the operation of the relevant administrative arrangements. Thus, it was open to Mrs Wilson to apply for a national insurance number (as she eventually did) without prejudicing her immigration status or her application for leave to remain. The advice to the contrary that she received from her solicitors was in practice mistaken. It is true that the use of a national insurance number for this purpose may give rise to misunderstanding, as it did with Mrs Wilson’s solicitors, and that the issue of a national insurance number could even encourage people to take work in breach of their visa conditions, but I do not think that this can be regarded as creating any real unfairness.[40]Further, the fact that housing benefit was claimed by Mr Wilson in respect of Mrs Wilson as well as himself would not in my view place Mrs Wilson in breach of her visa condition not to have recourse to public funds. Even though she was taken into account in the calculation of benefit, her status as a person from abroad meant that this did not lead to any increase in the amount of benefit actually paid; and to gain an indirect advantage from the payment of a statutory benefit, as Mrs Wilson might be said to have done from payment of housing benefit to her husband, is not to be equated with having recourse to public funds. All this may involve the drawing of some fine lines, but in my view such lines can properly be drawn and they serve to avoid the unfairness that troubled the Commissioner.[41]Accordingly, I would hold that the Commissioner erred in law on this issue and that, subject to the next issue, he ought to have allowed the authority’s appeal.

Application for a national insurance number

[42]My conclusion that housing benefit was claimed in respect of Mrs Wilson means that the relevant condition had to be satisfied in relation to her as well as to Mr Wilson. The decision that Mr Wilson was not entitled to benefit was based on the failure to satisfy the condition in relation to her. It is therefore necessary to consider the alternative submission by Miss Robertson that the case should be remitted for a decision on whether the condition was indeed satisfied in relation to her.[43]Miss Robertson’s submission is that, although Mrs Wilson did not satisfy section 1(1B)(a), since she did not have a national insurance number, the information provided in the claim for housing benefit was sufficient to comply with section 1(1B)(b): there was enough to enable a national insurance number to be allocated, as is shown by the fact that an official of the authority was able to complete a form (labelled DCI 1LA) requesting a national insurance number.[44]The simple answer to that submission is that section 1(1B)(b) requires the person concerned to make an application for a national insurance number to be allocated. It is the application which must be accompanied by information or evidence enabling such a number to be allocated. In this case there was no application. Mr Wilson’s housing benefit claim form did not constitute such an application, and the subsequent communications in the form of a telephone conversation with Mr Wilson and solicitors’ letters to the authority made it plain that no application was being made by Mrs Wilson. Accordingly, no question can arise of Mrs Wilson having satisfied section 1(1B)(b).[45]In the circumstances it is unnecessary to consider an additional submission by Miss Lieven that Mrs Wilson would probably have been required to attend an interview and that the information or evidence enabling a national insurance number to be allocated had not necessarily all been provided.[46]In my view there is no prospect of a decision in Mr Wilson’s favour that his wife satisfied section 1(1B)(b). It follows that no useful purpose could be served in this respect by remitting the case.[47]I should mention finally that Miss Robertson raised, but very sensibly did not pursue with any vigour, an argument that there were no valid means by which a person in Mrs Wilson’s position could apply for a national insurance number so as to satisfy section 1(1B)(b): the situation fell outside regulation 9 of the Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations 2001 (which defines the circumstances in which there is a duty to apply for a national insurance number), and the discretionary arrangements described in the SNAP Code had not been shown to be authorised by any other enabling provision. In my view the argument was misconceived and does not merit detailed consideration.

Conclusion

(b) Conclusion

[48]I would allow the Secretary of State’s appeal. The appropriate form of order can be the subject of further submissions if it is not agreed between counsel.[49]I agree.[50]I also agree.

Cited in 1 later judgment