Forum Home → Discussion → Disability benefits → Thread
Another Past Presence test question for PIP
My client arrived in the UK from Southern Ireland in May 2015. He is living permanently with his sister here in London. She is self employed. He has Down’s Syndrome & never worked in Ireland. He receives ESA(IR) as he is habitually resident under the Common Travel Area. He received some financial support from the Eastern Health Board back home which covered his rent and not much else (have no other info on this). He had to relocate to UK as he needed support as both parents had died and his sister is his last surviving family member.
I know this has been asked before but I just wanted to again ask if the periods he spent in Ireland count towards the past presence test for PIP. Also is his sister a sufficient link to UK as he never worked in Ireland?
Many thanks
Did he receive IR ESA on basis of being ’ extended family member’ of his sister? (does he have EEA family permit or equivalent)?
If so, I can’t see there being a problem on either count.
As he is from the Common Travel Area he was exempt from the HRT for ESA(IR). This is what we were told by telephone but have yet to see the ESA decision in writing…
Oh I see.
The period he was in S. Ireland should count towards the past presence test but I’m a bit concerned they will argue that S. Ireland remains the ‘competent state’ for payment of PIP equivalent (on basis he has insufficient link to the UK social security system). It would be OK if he was a family member of his sister being as she is working but he would need a family member permit, etc, being as he will be an extended rather than direct family member).
Thank you. How would he go about getting a family member permit?
Just realised that you have to be out of the country to apply, doh!
No, it’s OK- see ‘applying for an EEA family member permit’ on http://www.gov.uk. You need to provide various docs including ID for client/family member and confirmation of client’s dependency on the family member.
I did have a look & it said you had to apply from outside the UK. Will need to investigate the link to the UK social security system further & his competent state.
He wasn’t receiving a PIP equivalent in Ireland so UK should be the competent state…
The definition of family member under the co-ordination regulation is different to that under the Directive. Under the regulation a family member is someone who is defined or recognised as a member of the family, or designated as a member of the household, by the legislation under which benefits are provided (or some other in certain circs). See p 244 of the Benefits for Migrants Handbook.
She therefore wouldn’t necessarily need a residence card (though getting one would not necessarily harm, either).
I have a further question - under Art.6 Reg 883/2204: aggregation, residence in another member state should be taken into account however in DMG 19/12 the DWP interprets this (in the case of a Dutch national who had never worked in the Netherlands or elsewhere and claimed DLA on arrival to UK) to mean that the residence elsewhere must be residence completed under the legislation of the other Member State which usually means having worked there.
Just covering all bases…
That DMG is talking about Lucy Stewart, which was about article 21 TFEU and residence conditions under the old Regulation. Article 6 in the new Regulation is new in that it applies as a general principle. There was nothing comparable to article 6 which Lucy Stewart could rely on, hence an art 21 TFEU interpretation.
The wording of Article 6 is very plain. It talks about where the national legislation makes the acquisition etc of a benefit contingent upon residence etc, then such periods (not other such periods) spent in other member states should be taken into account.
Thank you again 😊
Of course, this hasn’t been tested in the UT yet as far as I know…
I’m not sure if mentioned to you that Court of Appeal case (Gordon or something) which is helpful for this argument.
No, that would be good…
Garland, not Gordon: