Disability Living Allowance 2 year Past Presence Test for returning British Citizens | CPAG

Disability Living Allowance 2 year Past Presence Test for returning British Citizens

10 December 2019

EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018

These cases challenge the legality of the revised past presence test (PPT), which requires a person to have been in the UK for 104 of the past 156 weeks before being eligible to claim Disability Living Allowance. The case was due to be heard in the Upper Tribunal on 21st and 22nd January 2020, but was adjourned in order for further evidence to be filed. The case was relisted for 22-24 April 2020 but was further postponed to 3-5 June as a result of the coronavirus outbreak. The case has now been heard and we are awaiting judgment.

CPAG has two cases, EK and TS, both involving children who are British Citizens with significant disabilities, who were refused DLA after failing the 2 year PPT test. 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 to find 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 past presence test. The lack of entitlement to DLA has in turn meant that the mothers have not been 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 FTT. 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 [2017] UKUT 380 (AAC) where UTJ Jacobs had found that the 2 year past presence test was not discriminatory nor did it involve a breach of the public sector equality duty (PSED). 

The application for permission to appeal in FM was refused by the Court of Appeal on 4 March 2019 and the stay in EK and TS was lifted. Permission to appeal has now been granted in both cases and the SSWP has been directed to provide a response to the appeals.

These challenges are brought principally on the basis that the UT in FM erred in law in finding that the PSED and requirement to give primary consideration to the rights of children under the UN Convention on the Rights of the Child (of relevance to any justification of discriminatory treatment under Article 14 ECHR where children are affected) had been complied with.