Birmingham Law Centre Blog

By Dave Stamp - ASIRT (Originally posted on the ASIRT Blog )

It was with great horror and deep sadness that we read of the deaths of Mrs G and her baby son, recognised as  refugees and then left in destitution as Mrs G struggled to access the benefit payments to which she was legally entitled, having had her subsistence payments from the UK Border Agency stopped.

Tragically, the bureaucratic morass in which Mrs G found herself is all too typical. The tragic irony is that, for many people who have survived the indignities of the asylum system, the point at which they become entitled to mainstream welfare support is the point at which they are, once again, plunged into abject poverty and despair.

ASIRT and Birmingham Law Centre are aware of numerous examples of cases in which people granted status and the right to remain in the UK have their UKBA support stopped, while obstacle after obstacle is placed in the way of their access to benefits. Research carried out by BLC suggests that the application process for Jobseekers Allowance typically takes 38 working days from the date of application – almost 2 months.

Numerous explanations/excuses are routinely given for an inability to speed this process up, including most commonly an inability to make payments until the claimant has been awarded a National Insurance Number. This is simply untrue, since Section 1 (1B) of the Social Security Administration Act 1992 enables Jobcentre Plus staff to pay benefits, provided the application is accompanied by sufficient evidence of identity and entitlement- such as a Home Office status document granting Leave to Remain.

Yet even if this were not the case, it is impossible to identify  any immutable law of nature either preventing the allocation of a National Insurance Number to claimants at the same time as Leave to Remain in the UK is granted, or a joined up and cohesive approach to individuals’ support arrangements between the UK Border Agency and the Department for Work and Pensions. Under the present system, UKBA support arrangements are terminated 28 days after the grant of refugee status, irrespective of  whether or not alternative support arrangements have been out in place.  Typically, internal delays both within the UK Border Agency and the office of the applicant’s solicitor means that the successful client will not be notified or have evidence of the grant of status for two weeks or so, severely curtailing the time available to the client to arrange alternatives.

Previously, asylum seekers recognised as refugees could get advice and assistance about employment opportunities, housing options and welfare rights from the Refugee Integration and Employment Service. This service no longer exists, following funding cuts.

Evidence suggests that access to advocacy and appropriate legal representation makes a significant difference. Again, BLC’s research indicates that applicants’ claims for welfare benefits are processed and paid into clients’ bank accounts within seven days of the initiation of a pre-action protocol, threatening a Judicial Review of the DWP’s unlawful withholding of payments.

While it is plainly an unsatisfactory state of affairs if JR has effectively become the default remedy to a situation in which applicants for welfare benefits are routinely left in a state of abject poverty, the still more troubling fact is that, from April 2013, cuts to the provision of Legal Aid will render access to competent advocacy and legal support  more difficult than ever.

The grim and impoverished circumstances which contributed so significantly to the deaths of Mrs G and her baby son are sadly all too likely to be experienced by countless other families in the years to come.

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:

By Michael Bates