DLA past presence test rules held to unlawfully discriminate against disabled refugees or their family members.
In CDLA/528/2015, Upper Tribunal Judge Markus held that the past presence rules that require disabled children to have resided in the UK for 104 weeks before having entitlement to Disability Living Allowance (DLA) are unlawful indirect discrimination.
With the introduction of Personal Independence Payment (PIP) in April 2013, it has no longer been possible for adults to make a DLA claim.
However, as the past presence rules for DLA are identical to that for PIP, it was argued that disabled refugee adults should also be awarded PIP without having to wait for 104 weeks.
The DWP has now published DMG Memo 20/16 and ADM Memo 21/16 stating that the decision will not be appealed and confirming it as law.
"The past presence test is no longer to be applied to claims … submitted by refugees and their family members or to people with Humanitarian Protection status and their families."
Brief summary of the decision.
CDLA/528/2015
Application of past present test to refugees and their families amounts to unlawful indirect discrimination (contrary to the provisions of Article 28 of EU Directive 2004/83/EC and Article 14 of the ECHR)
Upper Tribunal Judge: Markus QC
This decision considers whether the application to refugees and their family members of the past presence test (“PPT”) in regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 amounts to unlawful indirect discrimination contrary to the provisions of Article 28 of EU Directive 2004/83/EC (the Qualification Directive), or Article 14 of the European Convention on Human Rights (ECHR).
Both appellants were disabled children.
MM is a Ugandan national. His mother was granted refugee status in the UK in March 2012. MM joined his mother in April 2013 with entry clearance on the basis of family reunion. A claim was made on his behalf for DLA in August 2013. SI is a Somali national. She arrived in the UK with her mother and sister in August 2013 and they were given indefinite leave to remain on arrival. A claim was made on her behalf for DLA in August 2013. Both DLA claims were refused on the grounds that neither child had been present in the UK for 104 weeks.
The legislation considered in this appeal includes as follows.
Regulation 2 of the Social Security (Disability Living Allowance) Regulations provides:
“2 (1) Subject to the following provisions of this regulation and regulations 2A and 2B, the prescribed conditions for the purposes of section 71(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that–
on that day -
he is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and
(ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to disability living allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, and
(ii) he is present in Great Britain; and
(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 104 weeks in the 156 weeks immediately preceding that day…”
There is provision for exemptions from regulation 2(1)(a)(ii) in the case of absence from Great Britain of a serving member of the forces and those in other specified occupations, and absences for medical treatment.
There is another exemption allowed by regulation 2A, which provides:
“2A (1) Regulation 2(1)(a)(iii) shall not apply where on any day -
(a) the person is habitually resident in Great Britain;
(b) a relevant EU Regulation applies; and
(c) the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.”
Article 28 of EU Directive 2004/83/EC (the Qualification Directive) is headed “Social Welfare” and provides:
“Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.
By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals.”
The effect of Article 28 is extended to the family members of those with refugee or subsidiary protection status by Article 23(2) of the Directive.
Protocol 1 Article1 of the European Convention on Human Rights provides:
(1) Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
(2) The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 14 of the European Convention on Human Rights provides:
“The enjoyment of the rights and freedoms set forth in this European Convention on Human Rights shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
In a long and detailed decision, Upper Tribunal Judge Markus holds that with respect to the DLA past presence test that:
- Article 28 of the Qualification Directive has direct effect;
- DLA is social assistance for the purpose of Article 28;
- the PPT indirectly discriminates against refugees and their family members.;
- the discrimination is not justified;
- DLA is within the ambit of Article 1 Protocol 1;
- the PPT does indirectly discriminates against refugees and their family members; and
- the PPT cannot be justified under Article 14.
As a result, Judge Markus concludes as follows:
“In the light of my finding of discrimination contrary to the Qualification Directive and applying section 2(1) European Communities Act 1972, it is appropriate to disapply the offending provision in the DLA Regulations. See Hockenjos, at [88]. In relation to discrimination contrary to Article 14 ECHR, the same result follows from the application of section 6(1) Human Rights Act 1998.
There is no dispute that the Appellants satisfied the other conditions of regulation 2(1) of the DLA Regulations. So the decision which I make is that at the relevant time the Appellants satisfied the residence and presence conditions for DLA in section 71(6) Social Security Contribution and Benefits Act 1992.
The Secretary of State must now determine the Appellant’s claims for DLA in accordance with this decision. If the Appellants are unhappy with the decisions that are made by the Secretary of State, they will have a further right of appeal to the First-tier Tribunal.”