Home News & views 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.
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.
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.
Necessary cookies are absolutely essential for the website to function properly. These cookies ensure basic functionalities and security features of the website, anonymously.
Functional cookies help to perform certain functionalities like sharing the content of the website on social media platforms, collect feedbacks, and other third-party features.
Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors.
Analytical cookies are used to understand how visitors interact with the website. These cookies help provide information on metrics the number of visitors, bounce rate, traffic source, etc.
Advertisement cookies are used to provide visitors with relevant ads and marketing campaigns. These cookies track visitors across websites and collect information to provide customized ads.
Other uncategorized cookies are those that are being analyzed and have not been classified into a category as yet.