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Eligibility rule for DLA and PIP declared unlawful: Refugees and those with humanitarian protection no longer to be discriminated against

Law Centre (NI) has recently been challenging the past presence test as it applied to refugees and those with Humanitarian Protection. This test said that refugees and those with humanitarian leave could only apply for DLA once they had been in NI for a certain period of time. This was originally 26 weeks out of the last 52 weeks but was increased for DLA and PIP on 20 June 2016 to 104 out of the last 156 weeks. The same past presence test applied to Attendance Allowance and Carers Allowance.

A test case in GB (MM & SI v SSWP [2016] UKUT 149 (AAC) (30 March 2016)) held that this rule amounted to discrimination contrary to the Qualification Directive and could not be justified. Whilst originally intending to appeal the decision the DWP later confirmed that it would not be doing so and issued departmental guidance that the test would no longer be applied to those categories of claimants. This change in policy has been extended to PIP also. Law Centre (NI) kept a close eye on these developments and, in addition to challenging the rules through the appeals process here, invited the Department for Communities to adopt the verdict and guidance.

The Department has now confirmed that it will not be applying the past presence test for DLA or PIP (or Attendance Allowance or Carers Allowance) to refugees or those with Humanitarian Protection or their family members. It has issued its own guidance to that effect in the last few weeks. See here for guidance: www.communities-ni.gov.uk/publications/decision-makers-guide-memos-volume-2. This development is welcome across the board and will benefit may disabled people in NI who have fled conflict. In particular, this change will have a significant impact on the Syrian families settled in NI as part of the Syrian Vulnerable Person Relocation Scheme. This will ensure that the most disabled people will be eligible for essential costs towards their care and mobility needs without having to comply with any qualifying period. The MM & SI case confirms the rights of refugees and those with Humanitarian Protection of full access to social assistance free from discrimination as enshrined in the Qualification Directive.

Representatives should be advising all refugees, those with Humanitarian Protection and their family members to claim DLA or PIP immediately where they could meet the other qualifying conditions. These benefits can not be backdated. Any decisions refusing DLA or PIP based on the past presence test should be challenged in the normal way by first requesting a mandatory reconsideration and then appealing.

Law Centre (NI) is happy to advise generally and/or receive referrals in cases where the test is still being applied.

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