CPAG welcomes the Upper Tribunal decision on disabled refugee children who up to now, have not been entitled to disability living allowance (DLA) until they have spent over two years in the UK. On 17 March 2016, Judge Kate Markus QC found that the current past presence test unjustifiably discriminates against refugees and their family members and should therefore be dis-applied.
MM and SI v Secretary of State for Work and Pensions  UKUT 0149 concerns two disabled refugee children, represented by CPAG in a challenge to the past presence rules for DLA. The past presence test requires an individual to be in the UK two out of the last three years to be eligible for DLA. Disabled children and their families arriving in the UK as refugees have had to wait two years to receive DLA and attendant benefits, such as carer’s allowance, necessary to cover the costs of a child’s disability and care needs. CPAG argued that the rules discriminate against disabled 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 prohibition of discrimination. The Tribunal held that this was the case and that the test unlawfully discriminates against refugees and their family members.
The Judge heard the cases of MM, a 14 year old refugee from Uganda, and SI, a six year old Somali refugee. Both suffer from acute disabilities and require specific support and care. As a result of the application of the past presence test and ineligibility for DLA, SI’s mother was refused carers allowance and income support and the family have been subjected to the bedroom tax. Both families who had already endured difficult circumstances before arriving in the UK, suffered continuing hardship on being refused the social welfare they should have been entitled to in order to meet the needs of disabled children.
Following this successful appeal any disabled refugee child who meets the conditions can claim DLA from the date they are granted leave to remain. The ruling should also apply to adults claiming PIP or carer’s allowance. The decision will have a positive impact on families with disabled children, including those such as Syrians arriving on the Gateway resettlement programme. This is significant because the UK prioritises disabled children for resettlement and this decision will benefit a number of families in need.