Refugee children – Disability Living Allowance – past presence test

Last updated: May 24, 2017

Update 09/09/2016: the DWP has now issued guidance, DMG Memo 20/16 and ADM Memo 21/16, confirming that it will not be appealing against the Upper Tribunal decision and that the past presence test is no longer applicable to claims for disability living allowance, personal independence payment, attendance allowance or carer's allowance.

Update 01/09/2016: The Secretary of State for Work and Pensions has decided not to seek permission from the Court of Appeal to appeal the Upper Tribunal's decision. The Tribunal found that the two year past presence test discriminates against refugee children and their family members contrary to EU and human rights law. The judgment can be found on the UpperTribunal website.

The decision means that any disabled refugee child who has been in the UK for less than two years (including those such as Syrians arriving on the Gateway resettlement programme) can now claim DLA and attendant benefits from the grant of leave. This is particularly important because the UK prioritises disabled children for resettlement.

Refugees will be able to rely on the judgment to claim DLA immediately, however new claims cannot be backdated.

The DWP issued guidance to decision makers following the UT judgment advising them to stay decisions in lookalike cases. However, we are expecting the DWP to issue new guidance following its decision not to appeal.

This is very welcome news and justice for refugee children and their families.

Update 07/04/2016: The Upper Tribunal gave its judgment on 30 March 2016.  The Tribunal found that the past presence test discriminates unlawfully against refugees and their family members and should therefore be dis-applied.  The DWP have not said if they intend to appeal.  A copy of the judgment is available on the Tribunal website.

Upper Tribunal (Administrative Appeals Chamber) CDLA/527/2015 and CDLA/528/2015

CPAG is acting for two disabled refugee children in a challenge to the past presence rules for disability living allowance.

In 2013 the past presence rules were changed, so that no one can claim DLA unless they have lived in the UK for two out of the last three years. There is no exemption for recently arrived refugees. As a result, refugee children and their families have to endure a wait of up to two years before they can be eligible for DLA and attendant benefits.

We are arguing that the rules discriminate against refugee children contrary to the UK’s obligations under the  Refugee Qualification Directive (2004/83/EC) and Article 14 of the European Convention on Human Rights.

The appeals were dismissed by the First-tier tribunal and the appellants have been granted permission to appeal to the Upper Tribunal. 

MM (CDLA/527/2015)

MM is a 14-year-old refugee from Uganda. He suffers from complex medical conditions including hydrocephalus (water on the brain), epilepsy, developmental delay and abnormal gait with decreased mobility. Due to his mobility and care needs, his mother struggles to care for him without the assistance of DLA.

SI (CDLA/528/2015)

SI is 6 years old. She and her mother and sister are Somalis who have been granted leave to remain as refugees. They were selected under the UN Gateway Programme because of their compelling situation and were granted indefinite leave to remain on arrival in the UK. As a result of the refusal of DLA, SI’s mother has been refused carers allowance and income support and the family have been subjected to the bedroom tax.