Windrush scandal, deportation and 2 year residence rule
My client is pension age and has high care needs and an adult social care package living at home, should be entitled to claim Attendance Allowance at the higher rate. However he was a victim of the Windrush scandal and was wrongly deported to Dominica in 2014. He returned to the UK on 22.08.2020 so has been back in the UK now for almost 1 year. DWP are saying he can’t claim AA as he hasn’t been in the UK for 2 years, however he has indefinite leave to remain (gets PC, HB) and was wrongly deported in 2014. Any advice on whether his entitlement to AA can be argued?
The rule for PIP, DLA and AA is that the claimant must have been present in the UK for 104 of the last 156 weeks (“the past presence test”). Your client will meet the PPT on or about August 2022. The only exceptions to the PPT are for people who are either refugees or their family members, or people who have a terminal illness claiming under special rules.
The regulations, perhaps unsurprisingly, do not make any special provision for people in your client’s situation. I don’t think I would be prepared to completely write off the possibility that he would have some sort of human rights based argument for the PPT to be disapplied, although I wouldn’t really be massively hopeful. I do wonder if he could argue either for some sort of special payment on account of the lost AA or if it is something which could be accounted for as part of the Windrush compensation scheme.
The PPT was previously found to amount to unlawful indirect discrimination against refugees. I wonder if it is worth at least making the argument to the DWP that this client is also a victim of discrimination.
This question on the Windrush compensation scheme claim form isn’t precisely on point, but suggests it may be worth a shot:
5e. Have you ever applied for other benefits and been refused because you could not prove your lawful status in the UK?
Situation not dissimilar to those denied citizenship due to not being in country long enough having previously been wrongly. deported. https://amp.theguardian.com/uk-news/2021/mar/05/windrush-victim-denied-uk-citizenship-home-office-admitting-error-trevor-donald
No doubt another matter of ‘deep regret’ for the government.