In Benefits

Avoidable Tragedies: Refugees and Transition to Mainstream Benefits

It was with great sadness that we read the story of the successful asylum seeker and her young son, starved to death because their route out of destitution had been blocked by bureaucratic delay (reported in Inside Housing, 5 October 2012). This brought back memories of the pioneering project we set up in Birmingham in order to avoid such a tragedy.

At the end of 2009 it had been highlighted to us by our friends at ASIRT, RESTORE, Red Cross, Refugee Council and others that many asylum seekers who had been granted refugee status were being plunged straight back into destitution on the basis that their claims to benefits were not being processed quickly enough. The most popular excuse used by the Jobcentre Plus office dealing with applications was that the claimant had no National Insurance Number (NINO) and could not be awarded benefits until they had one.

We knew that this was simply untrue and set about devising a way of combating this problem and unblocking these administrative delays to benefit claims. The first response was to tell the Jobcentre Plus that the idea of not being able to get benefit without a NINO was nonsense; the second response was to make use of the power that the Secretary of State has to make interim payments of benefit; and the third was to threaten Judicial Review if we were being ignored.

Benefits can be paid without a NINO being allocated. An application for a NINO is made automatically when you make your application for JSA, IS, ESA, Pension Credit. There will usually be an identity interview as part of the process of your NINO application. However this can take up to six weeks and in some cases longer. It is fair enough that there should be an administrative system in place to ensure as smooth an application and benefit payment process as possible. It is also fair enough that all of us should be required to have a unique reference number given to us for this system to work: the so-called National Insurance Number requirement. But what is not fair is to expect that this be the only way in which benefits can be paid, especially if you don’t yet have a NINO.

Fortunately, the law makes provision for this under Section 1 (1B) of the Social Security (Administration) Act 1992. You can receive benefit even if you have applied for but not yet been allocated a number, as long as your application has been accompanied by sufficient evidence of identity. A freshly minted residence permit granting leave to remain is precisely the kind of evidence that will be sufficient in these circumstances.

Persuading the Jobcentre Plus of this fact was only achieved by pointing it out in writing and requesting an interim payment whilst they made up their mind. The message had not filtered through to the front line and poorly trained telephone staff were simply unable or unwilling to help.

If this request was not answered in 7 days then a pre-action letter threatening Judicial Review was sent to the DWP solicitors and in every case that we have done this, the problem has been resolved and benefit put into payment within 7 days.

The table below shows the typical action taken and timeline of a reasonably straightforward JSA application for a single person, assisted by the referral agency for stages 1 and 2 and referred to BLC for stage 3 or 4:

Stage 1 Day 1 Indefinite Leave to Remain granted.
Day 5 ILR received.
Stage 2 Day 6 Application for JSA by telephone.
Day 10 Work focused interview at Jobcentre;

hand over of identity and HO docs;

application for NINO (this is automatic with JSA application).

Day 20 NINO identity interview appointment letter received.
Stage 3 Day 24 Interim Payment letter sent.
Stage 4 Day 31 Pre-action JR letter sent.
Day 35 Decision on entitlement to JSA made.
Day 38 JSA paid and received in bank.

Between October 2009 and March 2010 when we first evaluated this project, we had 20 clients referred to us by ASIRT, RESTORE and Red Cross. We threatened Judicial Review in 5 cases and sent pre-action letters. The DWP solicitors co-ordinated a very quick response in each case and benefit was paid within days. The other cases concluded successfully within 7 days of the interim payment letter being sent.

We have continued to use this very effective mechanism for unblocking administrative delays and have done so for over 100 clients. We think this is a successful example of local agencies working together and of an imaginative use of strategic litigation to obtain results that change lives and avoid tragedies.

Please contact us if you want further information on interim payments and Judicial Review: michael@birminghamlawcentre.org.uk

By Michael Bates

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