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DLA- step parent derived rights and past presence rules test case?
The client is a seven year old Pakistani national who came to the UK in February 2020 and claimed DLA in July 2020.
He lives with his father, also a Pakistani national, and his step-mother who is a Romanian national.
He is appealed in February 2021 against a decision to refuse him DLA on the grounds that he had not been resident in the UK for at least 104 weeks out of the last 156 weeks.
The DWP is submitting that he has no DLA entitlement on two grounds.
First, the client is a Pakistani national and is the step child of a EU national.
He cannot derive rights from her as a step parent does not come within the definition of a ‘family member’.
Second, at the time the DLA claim was made its past presence test was 104 weeks out of 156 weeks.
This reverted for children age 3 to 16 years to 26 weeks out of 52 weeks due to [2020] UKUT 284 (AAC)
https://assets.publishing.service.gov.uk/media/5fc500e0d3bf7f7f5521a732/CDLA_2208_2018-00_CDLA_2019_2018.pdf
This was decided on 12 October 2020 and is a “relevant determination” (test case).
As the client claimed DLA before that date he cannot benefit from [2020] UKUT 284 (AAC).
Are the DWP correct on either or both of the above?
The client is a seven year old Pakistani national who came to the UK in February 2020 and claimed DLA in July 2020.
He lives with his father, also a Pakistani national, and his step-mother who is a Romanian national.
He is appealed in February 2021 against a decision to refuse him DLA on the grounds that he had not been resident in the UK for at least 104 weeks out of the last 156 weeks.
The DWP is submitting that he has no DLA entitlement on two grounds.
First, the client is a Pakistani national and is the step child of a EU national.
He cannot derive rights from her as a step parent does not come within the definition of a ‘family member’.
Second, at the time the DLA claim was made its past presence test was 104 weeks out of 156 weeks.
This reverted for children age 3 to 16 years to 26 weeks out of 52 weeks due to [2020] UKUT 284 (AAC)
https://assets.publishing.service.gov.uk/media/5fc500e0d3bf7f7f5521a732/CDLA_2208_2018-00_CDLA_2019_2018.pdfThis was decided on 12 October 2020 and is a “relevant determination” (test case).
As the client claimed DLA before that date he cannot benefit from [2020] UKUT 284 (AAC).
Are the DWP correct on either or both of the above?
Hi Ken:
1. First, on the point about whether the child counts as a family member.—I am not clear whether they are asserting he does not so as to say he cannot rely on a “genuine and sufficient link” (”GSL”)to UK to defeat the past presence test (”PPT”) as not family member of EEA national to whom reg 883/2004 applies, or whether they are saying he is a person subject to immigration control:
(a) re 883/2004 (ie for defeating the PPT with GSL) then see HMRC v MB (CHB) [2018] UKUT 162 (AAC); [2018] AACR 32 at paras 11-13. I think that decision might be wrong (could argue family member has same meaning as in Directive 2004/38 I guess) but it is a reported decision.
(b) re Directive (ie for saying child is not PSIC if that is the problem) then I think you have plain words of Directive 2004/38 article 3 in your favour (direct descendants of “spouse” are included- so provided they are married you are good.
2. On the second point about the temporal effect to be given to the CPAG testcase -
(a) Firstly, he should definitely re apply if not done so already as clearly now meets the 26 weeks and claim relates to period postdating the testcase.
(b) Secondly, I am assuming the decision (or at least the MR) in this case also post dates the testcase judgment? If they predates the judgment then s.27(1)(b) of Social Security Act 1998 would not be engaged and so the anti-testcase rules does not bite.
(c) Thirdly if s.27 does bite then I think perhaps it is right to say that it is only the period down to the testcase date that he loses entitlement (see s.27(3)) and so he can still get benefit on this appeal from October.
(d) Fourthly, there might be an argument that s.27’s application in these circumstances results in a breach of his human rights and so that could be challenged- but I think not in the FTT only by way of JR.
Overall, I suspect this is one my colleagues would be happy to advise further on- try the testcases email?
Hi Martin,
Thanks a lot for this.
In terms of (1), the DWP are maintaining that the claimant is not a family member of EEA national to whom reg 883/2004 applies.
In terms of (2), the appeal was submitted on 1 February 2021.
However, the DLA refusal decision was made on 15 July 2020
The mandatory reconsideration was made on 7 December 2020.
As a DLA claim can only be made up to three months in advance wouldn’t this mean that no arrears can be paid as the ‘test case’ dates from 9 months after the claim?
Thanks a lot if you can advise any further.
I am not what I once was.
“I am not what I was”... is a really tricky case- I am struggling with it as well.
1. On the advance claim point:
a) you measure the 3 months from the date of decision rather than the date the claim was first decided- see cases written up to analysis to reg. 13A SS(C&P) Regs 1987 in Sweet and Maxwell Volume III: KH v SSWP (DLA) [2009] UKUT 54 (AAC), CDLA/3071/2005, CSDLA/852/2002 and CSDLA/553/2005.
b) that would be 15/10/2020 as last day (3 days after the testcase).
c) that said, I am not clear how SSWP could have been of opinion in July that the test case would happen and therefore that there would be entitlement from 12/10/2020…
2. More generally, this throws up the issue of the relationship of s.12(8)(b) SSA 1998 and s.27(3):
a) s.27(3) is as follows:
(3) In so far as the decision relates to a person’s entitlement to benefit in respect of -
(a) a period before the date of the relevant determination; or
(b) [....]
it shall be made as if the adjudicating authority’s decision had been found by the Upper Tribunal or court not to have been erroneous in point of law.
b) I think one could argue that when one is looking at the post test case revision of the July decision then one treats the law as being a 104 week PPT only insofar as that relates to periods prior to 12 October and a 26 week PPT from 12 October onwards.
c) However, how does s.12(8)(b) effect that? The FTT cannot take account of a circumstance that arose after the decision. I think one could argue that the deeming provision (treating the law not as declared by the Courts before 12/10/2020) in s.27(3) should not be regarded as a new circumstance (there is caselaw that says a change in law is a change of circumstances but I think a deeming of law to be what it was not is not such a change). So it could be taken into account by the FTT.
d) In support of that approach then I would say that s.27 generally needs to be read restrictively as the result it produces (pretending the law is not what it is) is constitutionally odd and should be given as little scope as possible (or some more lawyerly version of same).
e) Further there may be some sort of argument that this is necessary on art. 6 ECHR grounds although I really have not worked out what.
3. Separately from all this there is the potential HR judicial review point I raised- I really would say try refer it over if client is willing as probably something we should consider properly- happy to discuss further if you want to give me a call / email.
4. Back to the step child point - that reported UT decision is a real problem. I think it binds an FTT. The UK never signed up to EU Regulation 1231/2010 which would probably have given this child rights….
Martin
Ignore me. I was thinking of UC.
Jim
[ Edited: 20 May 2021 at 06:52 am by Mr Jim ]