Upper Tribunal (Administrative Appeals Chamber)

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You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> FM v Secretary of State for Work and Pensions (DLA) (DLA, AA, MA: general - other) [2017] UKUT 380 (AAC) (14 September 2017)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2017/380.html
Cite as: [2017] UKUT 380 (AAC), [2018] PTSR 1036, [2017] WLR(D) 663, [2019] AACR 8

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FM v Secretary of State for Work and Pensions (DLA) (DLA, AA, MA: general - other) [2017] UKUT 380 (AAC) (14 September 2017)

Disability Living Allowance – Validity of the amended past presence test – Children The appellant was born on 14 December 2007 to a British father and Thai mother. He was registered as British in 2008. He came to the United Kingdom with his mother on 31 May 2014. The appellant made a claim for a disability living allowance through his father as his appointee on 24 November 2014. The Secretary of State refused the claim on the basis that the appellant had not been present in Great Britain for 104 weeks out of the previous 156. The First-tier Tribunal dismissed the appeal, but gave the appellant permission to appeal to the Upper Tribunal (UT).

The issue before the UT was the validity of the new past presence test for disability living allowance, with particular reference to its application to children.

Held, dismissing the appeal, that:

1. past residence was not a status…. past residence in the context of the past presence test is merely a condition that a person has to satisfy, regardless of their personal characteristics, before a claim for an allowance will be entertained (paragraph 26);

2. bright lines are permissible in principle, but that if the gap between the test and what it is trying to achieve is too wide the result may be manifestly without reasonable foundation (paragraph 37);

3. the new past presence test is a tough one to establish, but it is not manifestly without reasonable foundation. It was permissible to review and then to change the length of the period in order to take account of the changing pattern of migration; the period fixed was within the proper limits allowed to Parliament and ministers. The new law seeks to distinguish between those children who are settled and those who are not, but taking into the account the child’s age, ensuring that the most disabled children can qualify sooner (paragraph 38) and;

4. the Secretary of State did treat the best interests of the child as a primary consideration (paragraph 51)

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