I have a DLA appeal on 04-04-07- benefit has been refused on the basis of the Residence and Presence test because she has not been in the country for 26 weeks out of the last 52. Obviously this is taking account of Reg 2 of the DLA regs- I was looking at reg 13A of the Claims and Payments Regs re advance award and wondered if if this should have allowed her to be awarded from a future date if the test of 26 out of 52 weeks was a rolling test? Reg 2 of the DLA Regs talks about 'in relation to any person on any day and 'on that day' - its not clear to me if this means the date of claim? the date of decision or any day benefit is claimed and therefore if the test was met within the 3 months following the date of claim benefit could have been awarded. The DBC say she can not receive benefit until 26 weeks after she returned to the country as the date in question is the date she returned and she did not meet the test at that time. This may well be correct but there is still a doubt? Does anyone have any thoughts on this- would really appreciate some help. Thanks

I can't see why Reg 13A couldn't be used: its classic use is for people who are more or less bound to satisfy a qualifying condition at some future date, such as the three month qualifying period for DLA. But Reg 13A would only allow the decision to be made now that she will be entitled to DLA at a future date, when she does satisfy the rules. My reading of Reg 2 is that "that day" refers to a period on which entitlement is sought: clearly there can be no entitlement until she satisfies the 26 week rule. So reg 13A can surely be used, if the calim is more than 13 weeks after arrival, to say, "Unless anything changes (and of course you must tell us if it does) between now and then, you will be entitled to DLA with effect from (whenever)."

The only issue is whether they are treating it like the advance decision on habitual residence, which were hastily legislated away.

Thank you for that advice - I had been looking at it from the point that if the test of 26 out of 52 weeks was a rolling one - it would mean that eventually after a futher 3 weeks counting back the 52 weeks would have meant she met the test in the new period. However the Department state like yourself that the date of meeting this test is the date entitlement is sought so in effect she cant meet entitlement until she is back in the country for 26 weeks. Thanks again - Joyce

Hi folks - further to my previous enquiry I now realise that this can not be argued - I was thinking that if the 26 out of 52 week rule was rolling - however because the rule has to be met by the 52 weeks immed preceding the date of entitlement this cant be done as it will always be the same (in this case 25 weeks 2 days. Its been a learning curve anyway and thanks for your help.