Past presence test unlawful for refugee children

Mr Michael Spencer, sometimes of this parish and legal officer at CPAG, has just won UT appeal on unlawfulness of past presence test for DLA for refugee children.

101. For the above reasons, I conclude that the PPT, in its application to refugees, is an inappropriate means of achieving the Government’s aim and the Respondent has failed to show that there would not have been a less restrictive way of achieving its aim. 

103. The Respondent has not advanced any basis for suggesting that making different provision for refugees would adversely affect the integrity of the benefits system.  It would lead to some additional benefits expenditure, although the Respondent has produced no evidence as to this nor how any such savings are to be balanced against the impact of the application of the test on refugees and their families.

CDLA 528 2015 Spotted from a Disability Rights UK tweet)

Well done Mike.

Spot on Mike- what a complete star you are!

Here’s a Guardian article about the Upper Tribunal decision -

http://www.theguardian.com/society/2016/apr/26/child-refugee-families-disability-living-allowance-denied

The DWP has decided to appeal the Upper Tribunal decision to the Court of Appeal - today’s guidance tells decision makers to stay lookalike cases -

http://www.rightsnet.org.uk/welfare-rights/news/item/staying-cases-relating-to-the-application-of-the-past-presence-test-to-refu

We’ve just heard from DWP that they’ve decided not to appeal the Upper Tribunal decision - hurrah!

Here’s a link to more info on DWP decision -

http://www.cpag.org.uk/content/dla-refugee-children

That’s excellent news!

Hello
Can we say that this also applies to PIP and AA too? The Welfare Rights Bulletin 151 p10 indicated this as did the DMG Memo 15/16 (re. DLA and AA and CA) https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/534846/m-15-16.pdf

Or do we have to wait for a further DMG memo?

Clive

clive - 05 September 2016 11:13 AM

Or do we have to wait for a further DMG memo?

We may get another memo reversing effects of DMG 15/16 at some point, but there was also an equivalent memo for PIP on staying cases ADM 17/16

Hi yes, we’re looking out for a revised memo to say that no longer any need to stay cases.

Bit of a swerve, but thought you might be interested in this interview with Mike Spencer just before he went off on sabbatical to Supreme Court - as you’ll see, he says that this is the case he’s most proud of -

http://www.cpag.org.uk/blog/game-of-chess

Hope he really enjoys his sabbatical and that he will return- don’t know what we’ll do without him if he doesn’t.

Hi 1964, just to reassure you that Mike is returning in September next year. In the mean time we’re really pleased to be welcoming his replacement, Carla Clarke, who’s starting with us this Wednesday so normal service will continue :)

Thanks Ros- what a relief!

And welcome Carla…

Just to update you, the DWP has told us that new guidance implementing the decision is being finalised and will be issued shortly.

New guidance DMG memo 20/16 and ADM memo 21/16 confirms the UT decision will not be appealed, stayed cases can be decided and in relation to DLA, AA, CA and PIP -

‘The past presence test is no longer to be applied to claims… submitted by refugees
and their family members or to people with Humanitarian Protection status and their families.