Past Presence Test and Humanitarian Protection

I’m looking for a bit of a sense check as I feel like I’ve got DWP bang to rights but they’re being so stubborn I want to make sure I’m not missing something obvious as this is a bit unusual for me. It’s bit long so I’ve put a tl;dr at the bottom. The situation is as follow:

Client arrived in mid-2022 and applied for asylum on arrival. In early 2023 they were granted Humanitarian Protection status but not refugee status and given permission on that basis to be in the UK until mid-2025. They were contacted in autumn 2023 and told that, due to a change in Government policy, their permission to stay would be extended to five years from when they were granted Humanitarian Protection (so early 2028) their status otherwise was unchanged.  At this point the Home Office made a cock up (shocking I know) and accidently issued them a Biometric Residence Permit saying they were a refugee rather than someone with Humanitarian Protection. The issue was identified and corrected with the wrong card returned and a new card issued. Basically since early 2023 they’ve had Humanitarian Protection as their status just with few admin bumps along the way.

With that background out of the way, the benefits side. Client applied for PIP in April 2023 and a few weeks later received a request to confirm when they moved to UK and if they’d been abroad for 4 weeks or more in the last three years. The client promptly responded with the relevant info (date of arrival in mid-2022 and “no” to time abroad). The application then proceeded normally with PIP2 and assessment (which found points for SDL and EM) until September 2023 they were refused on the basis:

- You do not live in GB, or have lived somewhere else for more than 1 of the last 3 years
- You do not have the right to live in the UK, Ireland, Isle of Man or the Channel Islands, or
- You are subject to immigration control (and not a sponsored immigrant).

The client did their own MR supplied evidence from the Home Office confirming their status as having Humanitarian Protection. The decision was unchanged at MR and that’s when they came to me.

I completed the SSCS1 on the basis that someone with Humanitarian Protection is exempt from the Past Presence Test and cited ADM Chapter 2 Paragraph 2027: “From 17.3.16 PPT is no longer to be applied to claims submitted by refugees and their family members or to people with Humanitarian Protection status and their families. All claimants must satisfy the other conditions of entitlement.” Which would appear to exempt them and they meet all the other conditions of entitlement.

I’ve now had the response back and they’ve not changed the decision and have, politely, told me I’m an idiot. Specifically the response says:

“they [that is me] explain that they disagree that the law has been applied correctly, stating that in their opinion the past presence test has been applied incorrectly and should not apply to [the client]‘s PIP claim.

I’ve noted the rep’s points above, however they are unfortunately misinformed with regards to the law that applies to PIP claims and why [the client]‘s claim was refused.

This is to do with the legislation that applies to the residence and presence test, not the past presence test they state. The Tribunal will be aware that to get PIP a person must have been present, or be treated as present in Great Britain for 104 out of the previous 156 weeks when they claimed.

[The client] isn’t entitled to PIP from and including [date of claim] because they haven’t been present in Great Britain for a total of 105 out of the previous 156 weeks and couldn’t be treated as present.”

Now is it just me or is this just rubbish or am I missing something obvious? Elsewhere in the response it explicitly says the decision under appeal is that they lived outside Great Britain for more than 1 in the last 3 years am I losing my mind or is this not the very past presence test that ADM says people with Humanitarian Protection does not apply to?!?

tl;dr - Client has Humanitarian Protection, therefore client doesn’t need to show that they’ve been present in GB for 104 of the last 156 weeks, correct?

Yes, they have got a bit confused about the residence terminology.

The past presence test is the name used by advisers and decision makers to describe one aspect of the residence and presence rules, so they aren’t mutually exclusive: the former is a subset of the latter.

The past presence test is in Reg 16(b) and indeed it does not apply to your client because of Reg 23A.

https://www.legislation.gov.uk/uksi/2013/377/part/4

Refugees and people with Humanitarian Protection are exempt from the Past Presence Test because reg 23A(1)(a) PIP Regs says as much.

Thank you both. I was staring at the page utterly puzzled and beginning to doubt my reading comprehension becuase it seemed so clear that the DWP was wrong!