Past presence test – ‘Genuine and sufficient link’ to the UK

Friday 29 July 2016

In PB v Secretary of State for Work and Pensions (DLA) [2016] UKUT 280 (AAC), 15 June 2016, the Upper Tribunal considered whether the First-tier tribunal had failed to address whether the claimant was exempt from the need to be present in the UK for two years because he had a ‘genuine and sufficient link’ to the UK social security system.

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PB v Secretary of State for Work and Pensions (DLA) [2016] UKUT 280 (AAC), 15 June 2016 concerned a claim for Disability Living Allowance (DLA) made by a Czech national. He had ADHD, autism and a learning disability. He came to the UK with his mother in March 2014 to live with his sister.

The sister had been working in the UK for a number of years and was the claimant’s appointee on the claim for DLA. She was also awarded child and working tax credits in respect of her brother. In addition, she provided care for her brother.

The claim for DLA was refused by reference to the past presence test in regulation 2(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991. A First-tier Tribunal upheld the decision.

HELD: Appeal allowed. The Upper Tribunal held that the First-tier tribunal had failed to address whether the claimant was exempt from the need to be present in the UK for two years because he had a ‘genuine and sufficient link’ to the UK social security system: per regulation 2A(1) of the DLA Regulations 1991.

The Secretary of State conceded that on the facts of this case the First-tier Tribunal ought to have concluded that the claimant had a genuine and sufficient link with the UK social security system through his sister.

For more information, the full judgment is available.

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