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PIP past presence test re: Client returned to UK 3 months ago, after several years in Africa.

Andyp5 Citizens Advice Bridport & District
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Client returned to UK 3 months ago, after several years in an African country.

Had originally gone with Partner and their child on a 3 month visa with a return ticket to meet Partner’s Mum.

Partner’s Mum’s health deteriorated, they cared for her, she then passed away. There were issues equivalent to probate sorting out her affairs after she passed away.

This was a slow process and the years passed, before they returned to UK, client is barred from African country for overstaying her 3 month tourist visa.

They made a claim for UC when they arrived back in UK after a couple of weeks which was refused on HRT grounds (MR lodged on basis of arguable case for her being found to have HRT on day of return to UK). Gap of roughly 7 weeks between this claim and the subsequent claim below.

We helped them with a UC second claim. DWP made award accepted an ‘appreciable period’ as 2 months for establishing HRT. As have our local LA regarding housing issues.

They had also made a claim for PIP which was refused as client had not been in UK for 104 weeks out of the previous 156 weeks. 

Had a look at the ‘residence and presence conditions reg 16 i.e. meeting the above. Looking at running an argument to meet the above on the basis of reg 17 (2) ‘absence from UK’  i.e. C is temporarily absent if, at the beginning of the period of absence, C’s absence is unlikely to exceed 52 weeks’.

Has anyone got any thoughts on whether this argument has any mileage?

Simon
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As I understand them Andy the Reg 17 provisions will only apply to temporary absences during an existing claim, I don’t believe there is any provision to utiise them to satisfy past presence test.

Andyp5 Citizens Advice Bridport & District
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Simon - 27 February 2019 02:10 PM

As I understand them Andy the Reg 17 provisions will only apply to temporary absences during an existing claim, I don’t believe there is any provision to utiise them to satisfy past presence test.

Thanks Simon for the response really appreciated!

I think the Reg 17 provisions can apply to the past presence test i.e. reg 17 (1) refers to reg 16 (a) (b) i.e. ‘on any day for which C claims PIP’. But academic in client’s case.

But I think our client is caught by by the reg 17 (1) first 13 weeks of absence, and that i have confused myself over reg 17 (2) i.e. the meaning of ‘temporary absence’.

As in C2057 in ADM Chapter C2: Personal Independence Payment, International Issues - have attached just in case it comes in handy for anyone.

Meaning of “temporarily absent”
C2057 A claimant is temporarily absent if, at the beginning of the period of absence, their
absence is unlikely to exceed 52 weeks1
.
1 SS (PIP) Regs, reg 17(2)

Temporary Absence - Up to 13 Weeks
C2058 A claimant who is temporarily absent (see C2056) from GB shall be treated as
present for the first 13 weeks of absence1
. At the end of that 13 weeks, unless
helped by the EU law provisions – see C2070 et seq or, exceptionally, one of the
other absence rules described in C 2058 to C2069 applies, the claimant will cease
to satisfy the condition of entitlement to PIP that they be present in GB.
1 SS (PIP) Regs, reg 17(1)
Absence to Receive

 

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Helen Rogers
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I have had a case where PIP have accepted the argument that the absence didn’t count because it was initially intended to be temporary of less than a year.  This is to satisfy the past presence test on a new claim.  Client went to Australia originally for 9 months.  He had a return ticket.  But due to an accident, he had to be medically transferred back to the UK and this took a while to sort out, so he was out of the UK for 53 weeks.

Andyp5 Citizens Advice Bridport & District
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Helen Rogers - 28 February 2019 09:23 AM

I have had a case where PIP have accepted the argument that the absence didn’t count because it was initially intended to be temporary of less than a year.  This is to satisfy the past presence test on a new claim.  Client went to Australia originally for 9 months.  He had a return ticket.  But due to an accident, he had to be medically transferred back to the UK and this took a while to sort out, so he was out of the UK for 53 weeks.

Helen i would be really interested in what you argued??????????????

Helen Rogers
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The attached is an excerpt from the letter to PIP.  Credit goes to my colleague who wrote this.  I picked up the case once the PIP 2 had been issued.

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Andyp5 Citizens Advice Bridport & District
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Thanks Helen for the attached!

Um was this a MR application? or an appeal? If it was an appeal, could i beg a copy of the Tribunal Decision Notice please i.e. redacted version.

Helen Rogers
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It was a request for an any time revision.

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Helen Rogers - 06 March 2019 01:53 PM

It was a request for an any time revision.

That was quick! Thanks Helen!

Helen Rogers
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I’ve now had the MR notice on this case.  Backdating has been issued because the client’s claim should have been accepted when it was originally made - but was initially turned down because of past presence test.  The attached gives the blurb on the relevant bit from the MR notice.

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