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

For entitlement to disability living allowance, the requirement of ordinary residence in Great Britain under the residence and presence conditions carries an implied requirement that the residence is lawful. This reflects the statutory context of a claim to a state benefit. The implication applies equally to a child and an adult.

Authorities on a child’s habitual residence in family proceedings do not govern an unlawfully present child’s claim to a state benefit. The best-interests principle in the United Nations Convention on the Rights of the Child did not alter that construction where no human-rights issue arose and the statutory phrase was not ambiguous.

The claimant, an Israeli child with substantial disabilities, entered the United Kingdom with his mother and siblings on a six-month visit visa. No further leave was obtained after its expiry. A claim for disability living allowance was refused because the residence conditions were not met.

The First-tier Tribunal dismissed the appeal solely on the ground that the claimant was subject to immigration control. It did not determine whether he was ordinarily resident. On appeal, the central issue was whether an unlawfully present child could be ordinarily resident in Great Britain for the purposes of the Social Security (Disability Living Allowance) Regulations 1991.

1. The appeal was dismissed. The First-tier Tribunal had erred in law by failing to decide ordinary residence. Its decision was set aside, but the Upper Tribunal substituted a decision that the claimant was not entitled to disability living allowance.

2. In the context of a statutory entitlement to disability living allowance, “ordinarily resident” in regulation 2 carries an implied requirement that the claimant’s residence is lawful. The statutory context is decisive. The observation in R v Barnet London Borough Council, Ex p Shah [1983] 2 WLR 16 concerning unlawful residence was obiter, but was a powerful statement of principle. Mark v Mark [2015] UKHL 42 was consistent with that approach because it recognised that a lawful-residence requirement may properly be implied where a state benefit is claimed.

3. The rule applies to children as well as adults. Decisions concerning children’s habitual residence in custody proceedings did not concern unlawful residence or claims to state benefits. The fact that a child’s residence commonly follows that of a parent did not displace the conditions governing the child’s own claim.

4. Article 3(1) of the United Nations Convention on the Rights of the Child did not assist. The case raised no human-rights issue, the Convention was not itself domestic law, and “ordinarily resident” was not ambiguous. In any event, the best-interests principle was too general to determine the meaning of that phrase.

5. It followed that the claimant, an overstayer when the claim was made, could not satisfy ordinary residence. Remittal would have served no purpose because entitlement could not be established. The Tribunal therefore remade the decision under section 12 of the Tribunals, Courts and Enforcement Act 2007.

6. Obiter, paragraph 1 of Part II of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 was to be interpreted purposively as giving effect to the EEA Agreement. The Tribunal preferred CDLA/708/2007 to JFP v Department for Social Development (DLA) [2012] NICom 267.

• Upper Tribunal (Administrative Appeals Chamber): The claimant’s appeal was dismissed. The First-tier Tribunal’s decision was set aside for legal error, but was replaced with a decision refusing disability living allowance.
• First-tier Tribunal: On 14 January 2014, dismissed the appeal against the Secretary of State’s decision of 25 January 2013. It decided that the claimant was subject to immigration control, without determining ordinary residence.