Best Use of Law

CPAG  unfair residency test for children claiming Disability Living Allowance

The Campaign

Trudi and Gavin Scott moved back to the UK from New Zealand with their severely disabled son, Theo, in December 2016. When Theo was refused Disability Living Allowance (DLA) their financial struggle began. ThPast Presence Test requires that a child be resident in the UK for two years prior to a DLA claim being made. Along with the Kidd family, who were in similar circumstances, and working with the Child Poverty Action Group (CPAG)they successfully challenged the lawfulness of the DLA eligibility rules on human rights grounds. 

In October 2020, the Upper Tribunal found that the requirement was unlawfully discriminatory and in breach of their human rights. Thedecision paves the way for other disabled children in similar situations to access crucial financial support when they need it. 

The Change

CPAG represented both families in their appeals, arguing that the change to regulations increasing the Past Presence Test from six months to two years was discriminatory and contrary to Article 14 of the European Convention on Human Rights, as children who had lived abroad were worse off than children that had always been resident in the UK. 

The case was successful in the Upper Tribunal. The Department for Work and Pensions (DWP) did not appeal the Tribunal decision and the two children have both now received the DLA that they lost out on. 

The Future

Unfortunatelythe DWP is now refusing to make similar backdated payments of Carer’s Allowance to the mothers on the basis that it is subject to its own two-year Past Presence Test (PPT)The case only looked at the lawfulness of the test for DLA. 

This means that, while a child who has lived abroad can qualify for DLA after being in the country for six months, DWP insists that their main Carer(often the mother) cannot claim CA for another 18 months. 

CPAG is preparing to represent the families in appeals against the refusal of Carer’s Allowance. It hopes it will not have to go all the way to the Tribunal and that the DWP will accept that its current position, with the negative financial and emotional impact it has on the lives of families with children with disabilities, is untenable. 

Who else was involved?

The Kidds and the Scotts. It is only through their being prepared to walk the long road of litigation rather than simply saying ‘you know what, we’ve got enough on our plate to deal with, let’s just leave the litigation with its stress and uncertainty’ that the DLA challenge was successful not just for them but for other families, who they did not want to go through what they have had to go through.