Upper Tribunal finds that two year past presence test in DLA is unlawful

Monday 30 November 2020

In a recent decision the Upper Tribunal found that the two-year past presence test discriminated against two severely disabled children.

Both children were UK nationals whose families had returned to the UK after a period living abroad. When they tried to claim Disability Living Allowance (DLA) for their children, they were refused benefit until their disabled child had spent two years out of the previous three in the UK.

What is the past presence test?

In order to be paid DLA, one of the tests a child must meet is to show that they have lived in the UK for a certain period of time.

This used to be having spent 26 weeks out of the previous year in the UK, but the government decided to revise the test in 2013, extending the required period to 104 weeks out of the previous 156 weeks for children aged three-15.

The Upper Tribunal has now found that this revised two-year past presence was unlawful as it breached the human rights of the two disabled children whose cases it considered. Having decided the revised test was unlawful, the Judge in these cases found that the original 26 week test should have been applied instead and backdated each child’s DLA award accordingly.

This Upper Tribunal is EK v SSWP CDLA/2019/2018 and TS v SSWP CDLA/2208/2018 also known as EK and TS.

What are the implications of this decision?

Where a child aged between three-15 claims DLA, the DWP should now apply a 26-week past presence test (PPT) rather than a two-year test. Different tests already apply to younger children.

If you are a parent of a child aged over three who was recently refused DLA on the basis that they had not yet been in the UK for 104 weeks, you should seek advice about getting that decision revised on the basis that the decision in EK and TS means that the two-year PPT must be disapplied and the 26-week test used instead.

If you already have an appeal lodged, contact the Tribunal to ask that they follow the decision in EK and TS.