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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Child DLA two year residence and presence requirement - disapplied for EU citizens - discriminatory to UK nationals?

Mary Ward PLE project
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To claim DLA a child has to
- be habitually resident
- not be subject to immigration control
- be present in GB
and
- have been present in GB for two out of last three years

DLA regs 2(1) with fourth bullet point being DLA reg 2(1)(a)(iii)

Then DLA reg 2A says this -
Persons residing in Great Britain to whom a relevant EU Regulation applies
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.

effectively disapplying the two year residence rule for a habitually resident EU citizen exercising treaty rights.
- is there any mileage in arguing that this discriminates against a UK national? 
- is the age of the claimant (under 16) crucial to whether this could apply or not?
- can the notion of a genuine and sufficient link to UK system apply to children?

Daphne
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I may be wrong but my understanding of that is just to allow presence in an EU country to count as presence in GB- including for British citizens - provided there is link to UK social security system. So for example, if I had been in Spain for the last three years but had clear NI record in this country, I could apply for PIP straight away.

I don’t know enough about the genuine and sufficient link but I’m guessing if a child has been with a parent who has then that link that would be enough - I think it’s about who the competent state is.

The commentary in Sweet and Maxwell for the equivalent PIP provisions says ‘If the claimant is an EU national he will still need to be present in GB though not necessarily for 104 out of the past 156 weeks. He will also need to be habitually resident in GB and to demonstrate a sufficient link to the UK social security system’. So I don’t think it’s any more favourable to EU nationals.

Sweet and Maxwell also highlights that the relevant EU regulations are in s84 of the Welfare Reform Act 2012 - http://www.legislation.gov.uk/ukpga/2012/5/section/84

Mary Ward PLE project
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Thanks Daphne —point taken about the purpose of 2A enabling residence elsewhere in EU to count.
I think that makes sense with the scenario we have, which involves a UK national child who has been living outside the EU, then returns to UK late 2013 and a DLA claim is made and refused early 2014.

- so in effect the fourth bullet point becomes a requirement to have been present in GB or the EU (if certain conditions apply).  If you’re coming from outside the EU you have to wait 2 years.

But on the other hand reg 2A applies ‘on any day that’ that the EU citizen has habitual residence and sufficient link with UK system.  Some EU citizens may be able to show that within a substantially shorter period than two years surely?

 

Daphne
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I haven’t studied the EU regulations but I think an EU national would have to have been at least in the EU for 2 out of the last 3 years - it’s just that their presence in the EU can meet the ‘presence in GB’ conditions if all the other bits apply. That’s my understanding anyway but I may be wrong…

matthewjay
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The whole test is essentially discriminatory against anybody who has been living outside the EU. I’m not sure what mileage there is in arguing against it, however. EU law permits reverse discrimination (i.e. less favourable treatment of home state nationals by the home state where there is no link with EU law).

You need to look at the EU regulation as well as the domestic implementation is incomplete.

The implementation of the social security co-ordination Regulation in the DLA regs (et al) appears faulty. Have a look at the plain wording of article 6 of Reg 883/2004. If you have been living outside the EEA or Switzerland, then art 6 will not help.

The reg you quote implements ECJ Case Lucy Stewart, which was about someone living in Spain and claiming IB(Y). That was decided under the old Reg which was quite different. The claimant had to rely on citizenship and a proportionality argument. If you can demonstrate a genuine and sufficient link, e.g. NI contributions by the parents - other egs are mentioned in Lucy Stewart -, that will help to satisfy 2A(1)(c). As I understand it, you do not necessarily have to have been living in the EU to be successful under this route as the past presence test is disapplied on the date of claim.

Edit: and to answer the question re children: in Lucy Stewart they used the link of the parents. The claimant in that case had been credited with contributions but she had never worked. The Court also looked to her parents’ link with the social security system.

[ Edited: 26 Apr 2015 at 01:53 pm by matthewjay ]