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DLA and absent from the UK
I have a client who’s been called in for an interview under caution. I’ve deduced it’s because he spends 4 or 5 months out of the U.K. in India. He goes there because the climate helps his arthritis and for medical treatment from a hospital which he pays for. I’ve checked the regs and I think he’s okay. Has anybody got any thoughts or identify any pitfalls?
the question (assuming you’re right, of course) is whether he’s habitually resident here, which he needs to be.
plenty of case law out there, mostly in the family jurisdiction; essentially it’s a question of fact
which leads to this
plenty of cases on the commisioner’s website if you use “habitual residence” as the search term in the notes section (but none on DLA). my feel is some of the more recent decisions will be about EU citizens but i haven’t actually looked at them.
and here is the Supreme Court’s most recent pronouncement on the subject
http://www.bailii.org/uk/cases/UKSC/2016/4.html
(from para 27)
To my mind, the principal must be the same whether one is talking about a child or an adult; with the added benefit that with an adult it is the adult’s own decision that is relevant.
HTH
Thanks Claire, yes that’s what I’m looking at too.
and look what just popped up on bailii
and look what just popped up on bailii
it is in fact about the past presence test not habitual residence, but is about DLA….
and look what just popped up on bailii
Claire
That’s just what I need for a Carers Allowance appeal I’ve got on the past presence test. The DWP are arguing that my client can’t rely on her own status under article 11 as she is not working so she has to rely on her estranged husband’s status who lives and works in Holland. Working trumps residence. Ergo, in their mind Holland is thus the competent state for the payment of Carers Allowance. I’m arguing that that is a complete misreading of the co-ordination regulations. Thanks for this.
:-)
shame it doesn’t help the original poster (i should read cases before i link them!)
:-)
shame it doesn’t help the original poster (i should read cases before i link them!)
Does anyone know of any specific case law which will assist my case please?
No specific case law off the top of my head but I had a client in a similar situation some years ago. In his case the DWP decided he wasn’t entitled (and had incurred stonking overpayment) on the basis that he wasn’t HR in the UK. We argued otherwise and the appeal succeeded but it was basically a matter of documenting all his absences to confirm they didn’t exceed 26 weeks along with providing as much evidence as possible to show his centre of interests was in the UK. If I can remember his name (it escapes me currently) I’ll see if we still have the old file as I probably researched case law at the time.
R(IS) 6/96, R(IS) 2/00, CIS/4474/2003; dissented from in CIS/2559/2005 but largely followed in R(IS)7/06
For pitfalls that might afflict your client see CIS/12703/1996
edit… that was a blast from the past; it’s ages since I’ve had cause to read the Hab Res commentary.