Disability Living Allowance 2 year Past Presence Test for children (plus Carer's Allowance for their parents)
EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018
Current status: Upper Tribunal decision, dated 12 October 2020 and sent to the parties on 17 November 2020, finding in favour of the appellants on human rights grounds. Read the judgment. The SSWP has confirmed that she is not appealing the decision of the UT and has issued guidance for the 6 month PPT to be applied from the date of UT judgment although the regulations themselves have not formally been amended.
These cases challenge the legality of the revised past presence test (PPT), which requires a child to have been in the UK for 104 of the past 156 weeks before being eligible to claim disability living allowance (DLA) (referred to as the ‘2 year PPT’).
The appellants argue that the 2 year PPT is unlawful as a result of non-compliance by the SSWP with the Public Sector Equality Duty (PSED) and the discriminatory effect of the 2 year PPT is in breach of their human rights.
The cases were heard together before UTJ Ward at a two-day Upper Tribunal hearing on 3 - 4 June 2020 and judgment, dated 12 October 2020 and sent to the parties on 17 November 2020, found for the appellants on human rights grounds. The SSWP is not appealing the decision of the UT and is applying the original 6 month PPT from the date of the UT judgment, although the regulations have not been formally amended. Currently, she is not accepting that the 2 year PPT for carer's allowance for the parent-carer of the child should similarly be disapplied, albeit that she is not seeking to appeal further successful appeals by the mothers at the FTT.
The two appellants, EK and TS, are both children who are British Citizens with significant disabilities, who were refused DLA after failing the 2 year PPT. In both cases the parents had substantial work histories in the UK before moving to Australia (EK) and New Zealand (TS) where EK and TS were subsequently born. While the moves were originally intended as permanent, various factors led both families to return to the UK, including the need for the support of UK-based family and friends in helping to raise a severely disabled child.
Upon return, the fathers in both families immediately sought work while the extent of their children’s disabilities meant that the mothers acted as full-time carers. On claiming DLA shortly after arrival, both families were refused, notwithstanding the needs of their children and their clear connections with the UK, due to their not meeting the 2 year PPT. The lack of entitlement to DLA in turn meant that the mothers were not able to claim carer’s allowance or the disabled child elements in tax credits. The families have struggled to manage on one income, particularly in the face of the heightened day-to-day costs associated with raising a child with severe disabilities.
Both families appealed the refusal of DLA and were unsuccessful before the First-tier Tribunal. Their appeals were then stayed in the Upper Tribunal pending the outcome of an application for permission to appeal to the Court of Appeal in the case of FM v SSWP  UKUT 380 (AAC) in which UTJ Jacobs found that the 2 year PPT was not discriminatory nor did it involve a breach of the PSED.
The application for permission to appeal in FM was subsequently refused by the Court of Appeal on 4 March 2019 and the stay in EK and TS was lifted. The cases were initially due to be heard in the Upper Tribunal on 21 - 22 January 2020, but were adjourned following late disclosure of further evidence by the SSWP. The cases were relisted for 22 - 24 April 2020 but were subject to further postponement as a result of the coronavirus outbreak. The cases were ultimately heard together before UTJ Ward at a two-day Upper Tribunal hearing, which took place in person on 3 - 4 June 2020.
These challenges were brought principally on the basis that, contrary to the UT’s findings in FM:
- the SSWP failed to have ‘due regard’ to the implications of the 2 year PPT for children / disabled children, in breach of the PSED (s. 149 of the Equality Act 2010), at the time the measure was introduced; and
- the 2 year PPT breaches Article 14 of the European Convention on Human Rights (ECHR), read with Article 1 of the First Protocol ECHR and/or Article 8 ECHR. The appellants argued that this is particularly the case where the SSWP’s duty to give primary consideration to the rights of children under Article 3.1 of the UN Convention on the Rights of the Child (UNCRC) was not complied with.
The appellants considered that FM should not be followed in their case because, in deciding FM, the judge placed considerable reliance on an Equality Impact Assessment which he understood to be a final document considered by the SSWP. It transpired in the course of disclosure during the EK and TS proceedings that the Equality Impact Assessment had not progressed beyond the draft stage, and had never been seen by the SSWP nor formed part of the decision-making process.
In respect of the PSED ground ((Ground 1) above), the UT first needed to consider the broader issue of whether it had jurisdiction, whilst sitting in its statutory appeal capacity, to consider the legality of aspects of secondary legislation by reference to compliance with the PSED, prior to any substantive analysis of the SSWP’s conduct in this instance. The UT concluded that it did not have jurisdiction. Having considered in detail previous cases on the issue, the UT concluded that “there is no mechanism apart from judicial review within the social security adjudication process which permits compliance with the PSED to be raised.” Nevertheless, for completeness, UTJ Ward went on to consider whether, if he was wrong on his conclusion on jurisdiction, there had in fact been compliance by the SSWP with the PSED. He found that there had not been: “Looking at the process as a whole, with the benefit of much fuller evidence than was available to [the judge in FM] and knowing as we do that a significant, though I accept not determinative, part of the case before [the judge in FM] cannot be sustained, I respectfully reach a different view on this issue.”
In respect of Article 14 non-discrimination (Ground 2 above), the UT accepted that there was a difference in treatment between disabled children who had previously lived abroad and those who had always lived in the UK despite their needs being the same and that this difference in treatment needed to be justified. Ultimately it held that it was not justified: while the aim in extending the PPT from 6 months to 2 years was the legitimate one of saving money, there had been a breach of Article 3.1 UNCRC in extending the PPT because the best interests of children aged 3-16 had not been considered at all. This in turn made it difficult for the SSWP to show that adopting the 2 year PPT was proportionate to the aim of saving money.
Having found that the extension of the PPT from 6 months to 2 years was a breach of the appellants’ human rights, the UT was under a legal duty to disapply the secondary legislation giving rise to that breach. As a result, the amending regulations extending the PPT had to be disapplied, leaving the original 6 months PPT to be applied.
What can a claimant in a similar position do?
The SSWP has issued guidance to decision makers for the original 6 month PPT to be applied from 12/10/20, the date of the UT judgment. If you are an adviser and your client has been refused DLA as a result of failing the 2 year PPT, in circumstances where they would otherwise be eligible for the benefit, you should make a mandatory reconsideration request referencing EK and TS and the DMG. Once DLA is in place for the child from 6 months after their arrival in the UK, a claim for carer's allowance can be made. This will be refused on the basis of the parent's failure to satisfy the 2 year PPT and a mandatory reconsideration can be sought on human rights and irrationality grounds. It is likely that the MR request will be refused and the parent will have to appeal. An MR template is available here which can also be adapted for grounds of appeal.