DLA for British child, parent no recourse

Hello

We have a British national child who is entitled to DLA. Lives with mum who is had a no recourse restriction at the time of the child’s claim. (This has since been lifted and they have applied again). The claim was refused initially on the grounds that both had no recourse, which was obviously wrong. They are now saying they cannot pay mum as appointee as she has no recourse.

Surely that is wrong as well? It’s a British national’s claim - the money just happens to be held by someone else. I know there’s some law on an NRPF national getting benefits in their own right in certain circs but I can’t find anything directly on point here.

I ran something similar past our immigration worker a while ago, only in that case it was Child Benefit for a British National child where parent had no recourse. Her advice was for the parent to steer clear of any benefits if there was a no recourse restriction and they were applying for some sort of leave, just in case. However in your case the restriction has already been lifted so I don’t think you would have a danger here and you might as well try the appointee argument. Sorry cannot be more specific at the moment.

have to say I am gobsmacked at the thought that a british national’s benefits should depend on whether his/her parent has a no recourse notice on their leave to remain.

Whatever the parent’s immigration position, the british national child has a right to claim whatever benefits s/he needs

if DWP are serious then

1. see a lawyer re a JR etc
2. see if social services will act as appointee in the meantime, which would at least enable benefit to be put in payment
3. see the MP

I also very much doubt that the advice PCLC was given would appkly to a DLA. There is a significant difference between CB where the parent is the claimant and thus has ‘recourse’ herself, and DLA where the CHILD is the claimant.

RE - child benefit and I think also DLA for a person with a no recourse restriction - see https://www.freemovement.org.uk/provision-to-claim-child-benefit-without-breaching-the-public-funds-condition-by-primary-carers-of-british-children/  by Desmond Routledge - see also DLA reg 1A(2)

I am thinking that even if receiving DLA as an appointee was recourse, which I cant see how it can be, that there is a secondary argument based on the Consequential Amendments Regulations 2000 (SI 2000/636)-  which mean it should not be considered as recourse in any event?

I also note page 27 , immigration cases in Junes LAG shows that a no recourse restriction for people in this clients circumstances are unlawful in any event

Just thought I should clarify some things about my post….

Immigration lawyers tend to be a cautious lot, with good reason. If you think dealing with JCP or HMRC is difficult, try dealing with the Home Office. Also if you think JCP or HMRC cause delays, again try dealing with the Home Office. We had a case where some one in the UK as a child (now over 40) suddenly had his JSA stopped due to a query over his status. It took our immigration worker 3 years (yes you read the correctly) to get the HO to accept that he was British all along, via his (long dead) parents. We got him to continue signing on all that time and are now in the process of trying to get him all the JSA for 3 years to which he was entitled.

Also the HO seem to pay people to make deliberate incorrect decisions.

In this case, there is no risk anyway as the client now has recourse. The decision could be appealed surely? Hence no need for a JR?

Also with regard to JR, I don’t think this should be threatened unless there is a will to follow it through. There is a pre-action protocol anyway I think which needs to be followed? You need public funding to protect against costs, and this can only be done with an organisation with Public Law funding, I think. Also you would not get far with a JR if you have a right to appeal anyway and surely the decision can be appealed in the normal way?