DLA claims now accepted after six months in the UK rather than two years

Thursday 15 April 2021

Before someone can claim Disability Living Allowance (DLA), they must show that they have been in the UK for a minimum period of time. This rule is known as the past presence test, and it applies to returning UK nationals as well as to other people coming to the UK from abroad.

Up until recently, the past presence test meant that a child aged three years couldn’t usually claim DLA until they had been in the UK for at least 104 weeks out of the previous three years. However, late last year the Upper Tribunal found that this 104-week test breached the rights of disabled children.

After a lengthy delay, the Department for Work and Pensions (DWP) has decided not to challenge the Upper Tribunal’s decision.

As a result, the DLA Unit is now using a revised past presence test, which means a child must normally have been in the UK for 26 out of the previous 52 weeks. For babies under the age of six months, the test is 13 weeks in the UK during the last 26 weeks.

Children who are claiming under the special rules for the terminally ill or who have been granted refugee leave or humanitarian protection are exempt from the past presence test, as are some EU nationals.

When do the new rules apply from?

The DWP say that the new past presence test should apply to all DLA claims made after 12 October 2020. They have already been applying the new test to all new decisions made since 14 March.

If you applied for DLA between 12 October and 14 March and were refused DLA because of the old 104-week past presence test, the DLA Unit should be in contact with you to look at your child’s claim again using the revised rules.

The change in the past presence test only applies to DLA claims. The 104-week test continues to apply to both Personal Independence Payment (PIP) and Carer’s Allowance claims.

Children who are subject to immigration control

This change in the past presence test will help returning UK nationals and people from abroad who are not subject to immigration control.

It doesn’t change the benefit rules that prevent a child from abroad from getting DLA while they are subject to immigration control. The rule remains that a child who is subject to immigration control has ‘no recourse to public funds’ and cannot normally get DLA unless special circumstances apply – this remains the case regardless of the length of their stay in the UK.