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Forum Home  →  Discussion  →  Disability benefits  →  Thread

Advance DLA claims

matthewjay
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GOSH CAB

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Total Posts: 84

Joined: 23 March 2012

Hello all

I have a client who claimed DLA for child about 1 month before being entitled. It’s bascially accepted that the disability criteria were satisfied at the date of claim, as well as all other entitlement crtieria, other than the past presence test. Off to the Tribunal and the judge ruled that regulation 13A only applies to the disability critieria. I just want to run my argument past you to get any other ideas:


1. The 1992 Act says “A person shall not be entitled where he does not meet prescribed conditions as to residence and presence”. The primary statute therefore makes the residence criteria a ‘condition of entitlement’.

2. The words ‘requirements for entitlement’ in reg 13A are not specially defined in the Regulations or the 1992 Act. They must therefore be interpreted with their ordinary meaning in the statutory context in mind.

3. There is no case law which says reg 13A only applies to disability criteria.

4. In fact in CDLA/1190/2006 Commissioner Howell held that reg 13A and reg 13C could apply to other criteria. In that case, the only problem criterion was age. The appellant was not yet 3 yrs old but would definitely be entitled to mobility once he was 3. Held: reg 13A/13C applied for an advanced award to be made.

5. If 13A can apply to age, then it can also apply to residence.

6. The judge said in her SoR that, although evidence could show that disability criteria are likely to be extant within 3 months from the date of claim, ‘it would not be possible to predict the future presence of an individual in Great Britain’ because someone might leave. However, Courts and Tribunals must every day infer the current and future intentions of individuals from their conduct and circumstances. Such inferences form the jurisprudence of large parts of the common law and, in particular, elements of benefits law.

7. There was plenty of evidence in the present case which shows the appellant was most likely going to be here 1 month after the date of claim. E.g. he was enrolled in a school, there were no plans to return home, no return tickets, all family members working/looking for work (and now all actually working), they are still here, medical care back home for him was very poor.


I know there are some cases on reg13A which say things like “this applies where someone does not yet meet the 3month back test” but I don’t think those cases mean reg 13A is limited to those criteria. As far as I know, they did not have any other entitlement criteria in question/to mind and so did not expressly deal with them.

Does anyone know if CDLA/1190/2006 is still good law? And has anyone had success with similar arguments?

Cheers
Matt

Ruth_T
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Volunteer adviser - Corby Borough Welfare Rights & CAB

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Joined: 21 June 2010

A claim subsists until it is decided.  Since it usually takes more than a month from receipt of claim to decision, this should be OK.

Have a look at KH v SSWP [2009] UKHT 54 (AAC)  (CDLA/59/2009) available at   http://www.osscsc.gov.uk/Aspx/view.aspx?id=2661 

matthewjay
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GOSH CAB

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Total Posts: 84

Joined: 23 March 2012

Except here they managed to make a decision within 9 days. They managed to dispose of it before the PPT would have been normally satisfied.