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past presence for PIP

Cordelia
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I think my brain is melting in the heat, and it’s been a long time since I had to think about residence and presence issues.
Client is a British citizen who moved to Ireland 12 years ago.  He worked for at least some of the time in Ireland before returning to the UK in September 2020.  He’s currently in receipt of UC.
He has been refused PIP because of the past presence test.
Should he be able to use the co-ordination rules to count his past presence in Ireland towards the past presence test?  Or should he be able to claim Irish disability benefits instead?
Thanks in advance,
Cordelia

Greg B
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Hi Cordelia

I’m afraid he fails the PPT as he was absent from Great Britain - Wales, Scotland or England - so co-ordination rules presumably won’t help.

I assume he doesn’t meet special rules criteria. The only way around this will be either if he made a lot of repeat trips to GB in the last 3 years to haul him over the 154 week line (presence needn’t be continuous), or if you can find an obscure legal reason that PPT ought not to apply.

Whether he can claim an Irish disability benefit will of course depend on satisfying their own rules and criteria.

I wonder though ... if it transpires he doesn’t qualify for anything from Ireland, would there then be a FTT appeal grounded on his right to social security (Article 1 ECHR) and for amendments to secondary legislation in order to honour the aforementioned co-ordination rules?

[ Edited: 21 Jul 2021 at 03:10 pm by Greg B ]
Daphne
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I’m not an expert on this but looking at CPAG pg1632, I think it’s saying that the past presence rules don’t apply if you’re habitually resident in GB, covered by the main co-ordination rules (which looking at page 1676 I think he is) and can demonstrate a genuine and sufficient link to UK - that last one could be an issue but there’s a list on pg 1632 that might help.

I think this may only be in relation to the daily living component

It would be interesting to know why they’ve said he doesn’t meet it?

But I would definitely get a second opinion on what I’m saying!!

Cordelia
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Hi Daphne,

the decision letter just stated that he hadn’t been in the UK for 104 of the last 156 weeks. 

Your analysis was very helpful, and I think I agree with you.  He is a UK national who lives in the UK and has been subject to the legislation in Ireland while working there so should come under the scope of the co-ordination rules.

If he has a genuine and sufficient link to the Uk then the past presence test does not apply.  He can claim a genuine and sufficient link to the Uk because he has lived here for most of his life, has been here for the last ten months and intends to remain here. 

Alterntively, even if he doesn’t have a genuine and sufficent link to the UK to bypass the past presence test altogether he might be able to use his Irish residence to satisfy it by “aggregating” his Irish residence with his UK residence.

I think he can still rely on the co-ordination rules because he had returned to the UK before the transition period ended - I’m not sure someone returning now would be able to use the same approach.

Greg - sadly I don’t think he’s been back and forwards enough to clock up the 104 weeks that way, but I will double check.

Rosie W
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I also think Daphne is correct. I had a client who is a UK national who had been living in France for 12 years. He returned to GB as he felt he could get better care for his MS. He had the exact same response from PIP - I don’t think they look into the PPT in any more detail than just “you haven’t been here 104 out of last 156 weeks”.

He was clearly habitually resident - he’d bought a house, registered with a GP, was receiving secondary services for his condition. So that was never an issue.

I did a lengthy MR request on the basis the co-ordination rules applied and he had a genuine and sufficient link (he’d worked here and has a full NIC record). It went to appeal but a DM looked at it, rang me and agreed, though I didn’t get the impression they really understood the grounds..

Also agree this is only for daily living. It took a further 2 years to get an award due to a ludicrous amount of confusion (because the appointee still lived in France), multiple PIP2s sent and returned etc etc. But when the award was made (enhanced rates of both) they paid full arrears for both components. Possibly because we’d all given up trying to untangle it all by then.

Elliot Kent
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Cordelia - 21 July 2021 05:23 PM

  He is a UK national who lives in the UK and has been subject to the legislation in Ireland while working there so should come under the scope of the co-ordination rules.

If he has a genuine and sufficient link to the Uk then the past presence test does not apply.  He can claim a genuine and sufficient link to the Uk because he has lived here for most of his life, has been here for the last ten months and intends to remain here.

Worthwhile noting the Kavanagh case here which confirms the link is to the “UK” rather than the “UK social security system”. See also ADM Memo 11/19
https://www.bailii.org/ew/cases/EWCA/Civ/2019/272.html
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/804811/adm11-19.pdf

Cordelia - 21 July 2021 05:23 PM

Alterntively, even if he doesn’t have a genuine and sufficent link to the UK to bypass the past presence test altogether he might be able to use his Irish residence to satisfy it by “aggregating” his Irish residence with his UK residence.

This is the part which could be used for daily living but not mobility.

Rosie W - 21 July 2021 05:40 PM

He had the exact same response from PIP - I don’t think they look into the PPT in any more detail than just “you haven’t been here 104 out of last 156 weeks”.

Quite. Co-ordination frequently isn’t considered in initial decisions and I would not find the lack of reference to it as suggesting anything one way or another as to whether this claimant qualifies for PIP.

Cordelia
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Thank you Rosie and Elliot for your advice and encouragement.  We’ll submit a MR and hope for a quick resolution.