PB v Secretary of State for Work and Pensions (DLA)

A claimant may establish the genuine and sufficient link required to disapply the DLA past-presence test through family circumstances. A minor claimant’s link may derive from a sibling who has long lived and worked in the United Kingdom, receives relevant tax credits and child benefit for the claimant, and provides regular care.

The inquiry under regulation 2A of the Social Security (Disability Living Allowance) Regulations 1991 is a domestic-law inquiry. It is not confined to links held by the claimant personally or by persons falling within the EU definition of a family member. Where regulation 2A(1) applies, the past-presence condition in regulation 2(1)(a)(iii) does not apply.

The appellant, a Czech national and minor with ADHD, autism and a learning disability, moved to Great Britain with his mother in March 2014 to live with his adult sister. His sister had worked in the United Kingdom for several years, acted as his appointee, received child and working tax credits and child benefit for him, and provided his care.

The Secretary of State refused his DLA claim on the ground that he did not satisfy the past-presence test. The First-tier Tribunal, Bolton, dismissed his appeal under reference SC122/14/00778. It held that the sister was not a family member within Article 1(i) of Regulation (EC) No 883/2004. The central issue before the Upper Tribunal was whether the appellant was exempt from the past-presence test because he had a genuine and sufficient link with the United Kingdom social security system.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and replaced with a decision that, on 29 March 2014, the appellant met the prescribed presence and residence conditions for DLA.

2. The appellant could not satisfy the ordinary past-presence requirement in regulation 2(1)(a)(iii) of the Social Security (Disability Living Allowance) Regulations 1991. However, regulation 2A(1) disapplied that requirement if he was habitually resident, a relevant EU Regulation applied, and he could demonstrate a genuine and sufficient link with the United Kingdom social security system.

3. The Secretary of State accepted, and the Upper Tribunal held, that such a link existed. The relevant facts were the appellant’s minority, his residence with his sister, her several years of work in the United Kingdom, her receipt of child and working tax credits and child benefit in respect of him, and her regular care for him. Those facts rationally required the conclusion that the appellant had the requisite link through his sister.

4. The First-tier Tribunal had correctly concluded that the sister was not a family member within Article 1(i) of Regulation (EC) No 883/2004. That did not determine the domestic regulation 2A inquiry. The tribunal and the original decision-maker were not confined to the appellant’s own links, or to the links of persons within that EU definition, when assessing a genuine and sufficient link.

5. The question whether the appellant met the disability conditions in sections 72 and 73 of the Social Security Contributions and Benefits Act 1992 was left for the Secretary of State.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision, and substituted a decision that the presence and residence conditions for DLA were satisfied.
• First-tier Tribunal, Bolton: On 17 April 2015, dismissed the appeal from the Secretary of State’s refusal of 4 June 2014, under reference SC122/14/00778.