Disability living allowance and the genuine and sufficient link requirement

Kavanagh v Secretary of State and Pensions [2019] EWCA Civ 272

This appeal concerns the application of the ‘past presence’ test that requires disability benefit claimants to be resident in Great Britain for 104 weeks out of the 156 weeks prior to the claim. However, for claimants to whom an EU regulation applies, the past presence test is disapplied if they can establish a genuine and sufficient link to the UK social security system.

Judgment given by the Court of Appeal on 7 March 2019

The genuine and sufficient link in disability living allowance and attendance allowance is to the UK as a whole, not simply the UK’s social security system, and both objective evidence but also motives, intentions and expectations of the claimant are relevant in establishing the link.

This appeal concerns a non-British EU child's entitlement to Disability Living Allowance (DLA) on arriving in the UK from Ireland with his British mother where the requirement to be resident in Great Britain for 104 weeks out of the 156 weeks prior to the claim (the past presence test) is not met. For claimants to whom an EU regulation applies, the past presence test is disapplied if they can establish a genuine and sufficient link. The UT had earlier held (CDLA/0373/2016) that the genuine and sufficient link needed to be to the UK as a whole rather than limited to the UK social security system and that presence alone may be sufficient to establish such a link. However, on the facts, the UT did not find that such a link had been made out.

The appellant appealed to the Court of Appeal on the basis that the UT had erred in failing to take into account relevant matters including the advance claim provisions, the appellant's mother's link to the UK and the domestic violence that was a factor in the family's relocation to the UK. The SSWP cross-appealed. Her appeal initially included a challenge to the UT's finding that the genuine and sufficient link was not confined to the UK social security system but was to the UK as a whole. This ground was subsequently dropped, however, she continued to appeal on the question of whether presence alone may be capable of establishing the link.

In a judgment handed down on 7 March 2019, the Court of Appeal confirmed the UT's finding that the link was to the UK as whole and that reg 2A(1)(c) of the DLA Regulations should be interpreted as such. It also went on to find that on the facts such a link had been established as while ‘objective evidence of the is plainly critical … evidence of the motives, intentions and expectations of the applicant are not to be ignored if they are relevant to proof of the link and are convincing’ [69]. Given its finding that a link had been established on the facts, the Court considered it unnecessary to consider the arguments in respect of presence alone.

Background

In this case, the 16 year old Appellant is an Irish citizen with Asperger’s syndrome. His mother, and his appointee, is a British citizen. She moved to Ireland before her son was born. She returned to the UK in June 2013 and immediately claimed DLA for her son, who was 12 years old at the time. Applying the past presence test, the Department for Work and Pensions (DWP) refused the claim as it held that the claimant had not been present in the UK for 104 weeks out of the previous 156 weeks prior to the claim.

The case was heard before the Upper Tribunal on 4 November 2016, together with the linked appeal of SSWP v MM CA/224/2015. Both appellants submitted that the genuine and sufficient link requirement was to the country as a whole, not just its social security system and that the appellant had a genuine and sufficient link to the UK due to his mother’s British citizenship, personal history and connection with the United Kingdom. On the aggregation rules, it was argued that the Appellant’s residence in Ireland, where he qualified for domiciliary care allowance, constituted ‘residence completed under the legislation’ of Ireland and therefore could be aggregated with residence in the United Kingdom for the purpose of the past presence test under Article 6 of EU Regulation 883/2004.

The Tribunal held that the appellant’s residence in Ireland did not qualify as ‘residence completed under the legislation’ of that country and so could not be aggregated with presence in Great Britain to satisfy the past presence test for disability benefits. With regards to ‘genuine and sufficient link’ test, Judge Jacobs agreed with the appellants that it is enough to have a link with the UK, not with the UK’s social security system, and that the requirement to demonstrate the link with the social security system was contrary to EU law. Further, the Tribunal also ruled that presence alone may establish a ‘genuine and sufficient link’. However, on the facts of the case, the Tribunal decided that the Appellant did not have a genuine and sufficient link to the UK.

The appellants appealed the Tribunal decision to the Court of Appeal in relation to the factual finding on the genuine and sufficient link requirement on the basis of a failure to take various factors into account and a misapplication of the advance claim provisions. The SSWP cross-appealed against the decision that the requirement that the genuine and sufficient link is to a country’s social security system is contrary to EU law and that the genuine and sufficient link may be satisfied by mere presence. However, the SSWP's first ground of appeal was later dropped.