Refugee with 01 January as date of birth and Pensionable Age - refusal by DWP to accept it.

Dear all

I have a client due to attend hearing soon who has been told that the date of birth, as provided on her residence permit and travel documents, is wrong.  The client knows only that she was born in 1952 and nothing more.

The DWP have therefore substituted 31 December as the date of birth.  This has had the effect of dis-entitling the client to two years of SPC.

DWP rely on CP/1074/1997 (which they have finally provided) which states that it is ‘sometimes’ reasonable for this to occur on the balance of probabilities.

I argue that this is unlawful on the grounds of race discrimination from both an EQA2010 and HRA1998 perspective (Art 14, Protocol 1).  Essentially, the client is being subject to the discrimination because she is from a country which did not keep formal records and therefore, the DWP have reached a manifestly unfair decision.  I further argue that the DWP has clearly had no regard to the above legislation.

I also argue that this is possibly a breach of her right to a private and family life (Art 8) as they are preventing her from developing her identity of which her DOB forms a part.

Moreover, is it not equally as likely and unlikely that the client was not, or was, born on either of those dates or indeed any other date in the year?

What do we think to this argument?  Are there opposing points you think I may encounter which I may not be prepared for?  Anything else you need or want to know?

Any help from anyone is appreciated as this seems like it could be an important case for clients in this situation. 

Please be swift as the hearing is Thursday this week!!!

Many thanks

Michael

Haven’t they made reference to CPC/2423/2013?

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/date-of-birth-should-be-decided-by-evidence-not-assumption

No they have not and neither had I.  Seems very useful as client did have a claim for ESA (and still does now after much negotiation) using 01 Jan as her DOB.  Brilliant shout!  Certainly something to take along with me.

Also, I have argued that, if client gave a different DOB than that she was provided, would she not be acting fraudulently?  For all intents and purposes, 01 Jan is her only DOB which is widely accepted (harking to the case you gave).

Cheers!

Does anyone else have any thoughts on this?

To let anyone who is interested know, the appeal was successful.

Allowed (essentially) on the grounds that DWP had made no enquiries as to the true DOB and no evidence to dispute it. 

Other arguments were not taken into account as they ‘clouded the issue’.

SSWP will no doubt request SoR and may appeal.

Sorry I had nothing further to add, but good result.