MM & Anor v Secretary of State for Work and Pensions (DLA)

A past-presence condition for disability living allowance unlawfully discriminates against refugees and their eligible family members where it prevents access to social assistance provided to nationals. Article 28 of the Qualification Directive is directly effective and requires equal treatment in necessary social assistance. That expression is construed broadly and includes disability living allowance.

Although establishing a sufficiently close link with the United Kingdom is a legitimate aim, a fixed past-presence test is not proportionate for refugees. Refugee status and the circumstances of forced displacement may establish a genuine link without lengthy prior presence. The discriminatory condition must therefore be disapplied. The same result follows under Article 14 ECHR read with Article 1 of Protocol 1.

Two disabled children claimed disability living allowance shortly after arriving in the United Kingdom. One joined his mother, who had been granted refugee status. The other arrived with family members who were granted indefinite leave to remain. The Secretary of State refused both claims because neither child had been present in Great Britain for 104 weeks.

The First-tier Tribunal held that the past-presence test in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991 indirectly discriminated against refugees and their family members, but found the discrimination justified. The appellants appealed to the Upper Tribunal.

The central issue was whether applying the test to refugees and their family members was justified under Article 28 of the Qualification Directive and Article 14 ECHR.

1. Appeals allowed. The First-tier Tribunal erred in holding that the past-presence test was proportionate. Its decision was set aside and remade.

2. Article 28 of the Qualification Directive was directly effective. It imposed an unconditional and sufficiently precise obligation on Member States to provide beneficiaries with necessary social assistance on the same basis as nationals. Article 23(2) extended that protection to eligible family members of refugees.

3. Disability living allowance was social assistance within Article 28. The Directive had to be construed purposively and consistently with the protection afforded by the Geneva Convention. The expression was not confined by technical EU classifications or to means-tested payments. Disability living allowance met disability-related ordinary living needs and operated as a gateway to other welfare support.

4. The correct comparison under Article 28 was with nationals of the Member State, not a narrower group of nationals returning from abroad or other migrants. Refugees and their family members were intrinsically less likely than nationals to satisfy the 104-week requirement and were thereby placed at a particular disadvantage.

5. Protecting public funds and ensuring a genuine link with the United Kingdom were legitimate aims. However, close proportionality review applied. Refugees commonly have little choice about their country of refuge and cannot return to their country of origin. Their status and circumstances could establish a genuine link. The Secretary of State had not shown that a fixed past-presence condition was appropriate or that less restrictive alternatives, including an exemption or a genuine-and-sufficient-link test, would unacceptably compromise the aims.

6. The same discrimination was unjustified under Article 14 ECHR, with Article 1 of Protocol 1 engaged. Regulation 2(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991 was disapplied. The appellants satisfied the residence and presence conditions in section 71(6) of the Social Security Contributions and Benefits Act 1992; the Secretary of State was to determine their substantive claims.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeals, set aside the First-tier Tribunal decision for error of law, and remade the decisions.
• First-tier Tribunal: On 31 October 2014, found indirect discrimination but held the past-presence test justified and dismissed the appeals.
• Secretary of State for Work and Pensions: Refused the claims in September 2013 because the appellants had not satisfied the 104-week past-presence condition.