Late ILR request for PIP

Am writing this on the go so apologies for any errors!

Client I have just seen was awarded pip for 3 months. His claim ended on 15 March 2018 as his leave to remain had expired. Pip have proof from the HO that he didn’t reapply for leave until 21 March so was outside of the one month extension to have his pip reinstated pending HO decision. Pip received notice from the HO that they his leave was being considered so they created a “new claim” on 03 May 2018 which was disallowed on 21/06/18. Reason was a ‘lay disallowance’ as client had no leave. Client requested a MR and on 02 Oct 18 with the decision being unchanged even though they had received proof that leave was granted on 23 August. An appeal has already gone in and according to PIP it will only look at the 21 June decision.

So, do we have any recourse to get the first decision changed if we have proof that leave was applied for before the date that pip have? If not, as pip had proof that his leave was granted before the decision of 02 oct could pip be awarded from 03 May or would it only be awarded from 23 August, the date leave was granted?

Thanks Jo

If he had made an application for leave prior to the expiry of his existing leave, his existing leave would have been automatically extended whilst the application was dealt with. The effect of his failure to do that was to make him a PSIC and overstayer from 16/03/18. When he was eventually granted leave on 23/08/18, that grant did not have retroactive effect (as I understand it) - so he was still a PSIC when the decision was made on 21/06/18 to refuse his claim of 03/05/18.

It is the facts on the date of the decision - not the MR - which are important and he was a PSIC when the decision was actually made.  That would make his appeal futile as on the facts which existed on the decision date, he was not entitled to PIP. I would be encouraging him to make a further claim ASAP.

That said, there is a big unanswered question here. Presumably the purpose of treating him as having made made a new claim from 03/05/18 was that - when leave was actually granted - it would be possible to ensure that payment was made from the earliest possible date. So they could have taken the claim from 03/05, deferred making a decision until September and then said “I am awarding benefit from 23/08 only”. Otherwise, what was the point of the new claim?

Perhaps there is some argument that the DM jumped the gun in deciding the claim at all in June when really they should have deferred making any sort of decision until after the outcome of the HO application was known. But I think that is a maladministration argument rather than an appeal argument and I think - at best - it would only secure payment from the day leave was granted to the day he actually (or should have) made a new PIP claim as above.

I think everything from 16/03 - 22/08 was lost as soon as the 15th came and went without him making a new application for leave - so unless this is the result of tardiness on the part of his immigration adviser or some such, I think he is out of luck.