Social Welfare Update: Extension of Past Presence Test for DLA breaches disabled children’s Art 14 ECHR rights

Wednesday 23 December 2020

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The facts

The claimants were two British national children returning to Great Britain from a period of residence abroad (in New Zealand and Australia).  Shortly after their arrival in the UK with their families, claims for Disability Living Allowance (‘DLA’) were made by each child but these were refused due to the Past Presence Test (‘PPT’).  This makes it a condition of entitlement to DLA that the child has been present in Great Britain for a specified period of time (though there is an exemption for children under 3 years of age).  Under the old PPT, the child was required to be present in Great Britain for 26 weeks out of the previous 52. The PPT was amended, and under the new PPT, the period of presence required was extended to 104 weeks out of the previous 156. With the help of CPAG, the claimants challenged the new PPT on the grounds that it is in breach of Article 14 of the ECHR, read together with Article 1, Protocol 1; and/or in breach of the Public Sector Equality Duty under s.149 of the Equality Act 2010.

The judgment

Judge Ward held that the claimants had a 'status' under Article 14 of having previously lived abroad. The expatriate British children and the resident children were in an analogous position because – ‘as well as being in the UK, the expatriate cohort, like the resident cohort, have the right to be there and are in comparable need' (para 133).  Consequently,
children in the expatriate group were treated differently from those in the resident group because the new PPT only has an effect on the former. This was a difference of treatment requiring to be justified.

In relation to whether extending the period required by the PPT was justified, Judge Ward acknowledged that the aim of making budgetary savings was a legitimate one. However, in deciding how to do it, there had been a lack of consideration of the interests of children aged 3-16 in the expatriate group. This was a breach of Article 3 of the United Nations Convention on the Rights of the Child.  Judge Ward concluded that extension from 26 weeks to 104 weeks could not be objectively justified and that the appropriate remedy was to disapply the new PPT.  As a result, the claimants satisfied the PPT after 26 weeks in Great Britain.

Judge Ward also found that the SSWP was in breach of the PSED in relation to children but the analysis is obiter as the Upper Tribunal does not have jurisdiction on a statutory appeal to consider breaches of the PSED.

The judgment is available online here.

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