Tribunal finds making disabled refugee children wait up to two years before they are eligible for DLA is unlawful
In a recent decision, the Upper Tribunal (Administrative Appeals Chamber) has ruled that the past presence test (PPT) of the Social Security (Disability Living Allowance) Regulations 1991 unlawfully discriminates against refugees and their family members.
EIN members can read the decision here.
The Child Poverty Action Group (CPAG), which acted for two disabled refugee children in the legal challenge, noted that under a 2013 change to the PPT, no one can claim Disability Living Allowance (DLA) unless they have lived in the UK for two out of the last three years.
As there is no exemption for recently arrived refugees, refugee children and their families have to wait up to two years before they can be eligible for DLA and attendant benefits.
Disability Rights UK says the Upper Tribunal's decision that the PPT is discriminatory will significantly improve the welfare benefit rights of disabled refugee children.
Disability Rights UK adds that as the PPT for DLA is identical to that for Personal Independence Payment (PIP), the decision means that it can be argued that disabled refugee adults should also be awarded PIP without having to wait for 104 weeks.
Upper Tribunal Judge K Markus QC stated in the decision: "These appeals raise the important question whether the application to refugees and their family members of the past presence test ("PPT") in regulation 2(1)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 amounts to unlawful indirect discrimination contrary to the provisions of Article 28 of EU Directive 2004/83/EC (the Qualification Directive), or Article 14 of the European Convention on Human Rights (ECHR)."
"I have decided that the PPT is unlawfully discriminatory on both bases and should be disapplied. This means that, if they meet the substantive conditions of entitlement to DLA, the Appellants should at the time of the decisions have been awarded DLA."
According to Disability Rights UK, the Department for Work and Pensions has not indicated if it intends to appeal to the Court of Appeal against the decision.