DLA claim for child subject to immigration control where parent has ILR

I am becoming quite confused around the topic having read too many articles.  Can anyone provide more guidance please.  Child in question has Downs and signficant Learning Difficulties so meets criteria for DLA.  She came from Ghana to join parents.  Father is Canadian and has been granted ILR.  I am not clear whether there is a ‘no recourse to public funds’ condition for child.  DLA has been refused on the basis that she is a PSIC.  However, there seems to be a lot of contradiction around this area and I do not want to forego the chance to appeal if there is any prospect of successful.  Any advice much appreciated.

The claimant is the child and it is her immigration status that determines whether or not she even gets past first base for DLA.  You need to know whether there is any public funds condition which will be visible on the immigration card/sticker if such a condition exist.  One very quick rule of thumb: if she has indefinite leave, there is no condition.

As the benefit she is claiming is DLA, it doesn’t matter if she is subject to a family member’s maintenance undertaking: such an undertaking normally prevents the person from claiming benefits for five years but it doesn’t apply to DLA (see para 4 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000).  That’s lucky because she is a prime candidate for a maintenance undertaking.

Vilma - 12 November 2020 09:59 AM

She came from Ghana to join parents.  Father is Canadian and has been granted ILR.

HBInfo is right on the question of whether there is a “no recourse to funds” condition- there won’t be one for ILR. And also on the fact that the child is the claimant and it is her immigration position which matters.

However, if the child was granted ILR then she might have been granted it because of a maintenance undertaking by her parent (a promise she would be maintained).

If that was the case she would be a person subject to immigration control not because of a no recourse to funds condition but because of the maintenance undertaking - see s.115(9)(c) Immigration and Asylum Act 1999.

If this is the case, then you need to argue that despite being subject to immigration control, that does not exclude her from entitlement to DLA because of para 4 of Part II to the Schedule of the Social Security (Immigration and Asylum) Consequential Amendment Regulations 2000 (SI No. 636) which is an exemption that allows persons subject to immigration control due to a maintenance undertaking to nevertheless get DLA.

Martin

That sketch where the woman says something in the meeting and no-one takes any notice, then the man says exactly the same thing ...

Thank you so much.  Papers are with home office for extension to current leave which is not ILR. I need to check with child’s father if there are any conditions or maintenance agreement. Were there not to be conditions (I guess this is most unlikely) would her limited leave still qualify, or does it always have to be ILR?

Limited leave without a “no public funds” condition is less common than with, but you do sometimes see it: main example would be a refugee or family member of a refugee who get five years’ limited leave without any conditions.  Limited leave without a “no public funds” condition is fine for claiming benefits - only difference from ILR is that it isn’t guaranteed to last forever.  Also the usual advice to be cautious and consult a licensed immigration adviser to enquire about the possibioity that having had recourse to public funds during a period of limited leave (even if not in breach of any conditions) would reduce the chances of getting ILR in the future.

DWP is supposed to be able to check status directly with the Home Office in a case where the docs are with the Home Office for a renewal application.

Don’t worry about maintenance undertakings - as noted in our replies above, this does not prevent entitlement to DLA.