Couple have a child with cerebral palsy. Child first came to UK with mother 6 months ago. Mother has no recourse to public funds. Dad has been in UK for some time and has UK citizenship, he wants to know if he can claim DLA for the child.

I don't deal with enquiries of this nature very often, so I was hoping someone could clarify whether a claim for DLA in this case will be treated as recourse to public funds.

It is my general understanding that when a child comes to the UK with a parent who has prior entry clearance and who is granted limited leave, then the child is granted the same sort of leave.

However CPAG p1412 seems to suggest that a claim for DLA is still possible without effecting anyone's immigration status since the child is a family member of an EEA national (i.e. dad).

Have I understood this properly?

Derek

don't know the answer in relation to the child and DLA, though the child is a member of the family of an EEA national, and would appear to be both entitled under this provision and, conversely (perversely?) at risk regarding their (and mother's?) immigration status if they claim.......I have not come across this situation personally.

An alternative, however, may be to seek an assessment and services for the child from the Local Authority, as its Community Care duties will be triggered under a variety of legal provisions, not least s17 Chidrens Act which can provide an almost limitless amount of services to meet the identified needs of a child (financial help included) and will not affect any residence questions for the future regarding recourse to public funds.

Hope someone can clarify the DLA/residence paradox here.

How old is the child and what is his/her nationality? Depending on the history, may be entitled to British nationality inherited from father, in which case there can be no conditions attached to right to enter as he/she will have the right of abode.

The problem may be stablishing this if as is likely the child has dual nationality and has come in on a passport from the country of origin.

Brigid

The child is 9 and is Afghani. My understanding is that neither mother nor child had been to the UK before first coming here 6 months ago.

Derek

OK, but how and when did father get his British Nationality? For someone who is naturalised or British because British born, nationality can be transmitted to a legitimate child born after the acquisition of British nationality even if the child is born outside the UK. There may however be formalities to be gone through (eg registration in the country of orign) Not that I imagine there's much available in the way of formalities in Afghanistan at the best of times, which these ain't. If the dates tie up it has to be worth looking into. Do you have any handy immigration law practitioners?

The point is that "no recourse to public funds " is a condition attached to the leave of a person to enter the UK. If someone has the right of abode (as a British citizen has)then they do not need leave to enter the UK so there's nothing to attach the condition to. And of course the benefit is the child's, not the mother's, so mum's nationality/immigration status is almost irrelevant.

I'd be really interested to hear how you get on and if it does turn out that you can establish British nationality be descent.

Good luck

Brigid

Hi,
I'm asuming this child is over 1.
Has to be ordinarily resident - this depends on where parent with responsibility lives, both parents are here & dad should be claiming Child Benefit therefore he's responsible therefore child ordinarily present.
Must satisfy 26 week presence test.
As has cerebral palsey forward & backward tests will be satisfied.
There are exceptions to immigration conditions for DLA/AA/CA for family members of EU/EEA nationals, including British Citizens. This includes partner, children, parents and some other relatives.
REGS
2(1A) SS(DLA)Regs
2(1A) SS(AA) Regs
9(1A) SS(ICA) Regs - this will need checking for CA.
Hope this helps.
Margaret

Definitive answer coming up......

1. Entitlement to benefits despite being a Person Subject to Immigration Control:

The family member of an EEA national (ie family member of UK citizen), can claim DLA. This is provided for in Para 1 of Part II of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 (SI 2000/636)- see page 683 of current edition of Vol II of the Social Security Legislation.

2. Recourse to public funds?

Where a person is able to claim a benefit despite being a person subject to immigration control by virtue of a provision contained in regulations made under sec 115(3) of the Immigration and Asylum Act 1999 then this is not counted as recourse to funds under the Immigration Rules:

paragraph 6B -

'A person shall not be regarded as having recourse to public funds if he is a person who is not excluded from specified benefits under section 115 of the Immigration and Asylum Act 1999 by virtue of regulations made under sub-sections (3) and (4) of that section or section 42 of the Tax Credits Act 2002.'


This amendment took effecton 15 March 2005 and was introduced by Statement of Changes in Immigration Rules HC 346.


So in summary- claim DLA for child. There is no problem with this being a breach of immigration conditions by being recourse to public funds.

Woops... forgot to join all the dots in the above post....

SI 2000/636 is a regulation that is made under the power in Sec 115(3) of the I & A Act 1999.... see page 673 of Vol II which makes that clear.