Past and Present residency test for Attendance Allowance  

I have a case where my client arrived in the UK on 19/01/2013 he is of Somaliyan nationality from Africa.  My client is 75 years of age.  He joined his wife and 3 children, all under 18 in full time education at their residence.  His wife is 54 years old. She is of a Dutch National she came to UK since 2001. 

His wife is working 24 hours a week and has been since she came to UK.  She gets £800.00 per month.  She also has been getting Child tax credit (CTC) and Working Tax credit (WTC) and Child Benefit (CHB) for some time now; but recently has had her benefits suspended pending a National Insurance Number for her husband.  In the meantime her husband had submitted an Attendance Allowance application form on 18/10/13. 

In May 2014, my client was allocated a NINO.  He then received a decision letter dated 11/06/2014 refusing him Attendance Allowance from 18/11/2013 because the UK is not responsible for paying him benefits like Attendance Allowance. 

I wish to challenge this decision on the basis of he meets all the criteria of Social Security (Attendance Allowance) Regulations 1991 Reg 2A (a) (b) (c).  only part I have an issue with is:

2A ( c ) the person can demonstrate a genuine and sufficient link to the UK social security system. 

His spouse meets the above criteria but he has no claim of benefit in his own right as yet.  I know HMRC are looking at adding husband into wife’s WTC, CTC AND CHB but I don’t know how far back they will backdate with husband added onto it.   

Please advise whether I have a good chance of appealing the decision of refusal. 

Thanking you in anticipation of your reply.

Would it not be a rtr appeal? on grounds he is a family member of an EEA National ‘worker’.

Are they arguing that the coordination rules mean that Holland (rather than the UK) is the competent state? If so, as his wife works (and presumably pays NI) in the UK and he is her family member I would argue that the UK is the compenent state rather than Holland.

Or have they refused AA on some other basis?

That’s what I thought anyway I’ve submitted a mandatory reconsideration and proof of wife’s nationality and employment details. 

Thank you for your reply

Decision letter vague only states UK not responsible for paying him benefits like Attendance Allowance doesnt elaborate why?

Ive seen a recent Carers Allowance decision letter that was much the same and that proved to be a coordination rules decision so I expect you are correct in your surmise.

In which case I would have followed exactly the same course of action as you have. At least when the client receives the MR response there should be more of a clue as to what basis the decision was made upon.

What country was he living in before he came to the UK?  There is a past presence rule for AA, that says most people have to be living in the UK for 104 weeks out of the past 156 weeks (two out three years).  It may be possible to use time spent in another European country to count towards the 104 weeks.

Yes, that crossed my mind too. Though same thing applies as far as I can see- if he is covered by the coordination rules (which he should be, via his wife, unless he or she is receiving a pension from Holland in which case Holland is probably the competent state rather than the UK) and has sufficient link to the UK social security system, etc (which again should apply being as his wife is working here) the past presence test shouldn’t apply to him. At least, that’s my reading of the situation but I admit to going somewhat cross-eyed when dealing with coordination rules cases.