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

A past-presence condition for disability living allowance may lawfully use a graduated bright-line test for children. The test need not correspond directly to the costs of disability. It may instead measure a claimant’s connection with the United Kingdom and distinguish children who are settled from those who are not.

Such a rule is not manifestly without reasonable foundation merely because it delays entitlement for children newly arriving in Great Britain. A fixed period may be justified by certainty, administrative efficiency, changing migration patterns, age-sensitive exceptions, and the availability of other support. Past residence abroad is not, in this context, a personal status for the purposes of article 14 discrimination analysis.

The claimant, a British child who had lived in Thailand until arriving in the United Kingdom in May 2014, claimed disability living allowance through his father. The Secretary of State refused the claim because the claimant had not been present in Great Britain for 104 of the preceding 156 weeks. The First-tier Tribunal dismissed his appeal under reference SC242/15/02926.

Before the Upper Tribunal, the claimant challenged the revised past-presence condition as discriminatory and unjustified, alleged non-compliance with the public sector equality duty, and relied on the best-interests principle in the United Nations Convention on the Rights of the Child 1989. The central issue was the validity of the condition, particularly in its application to children.

1. Appeal dismissed. The First-tier Tribunal’s decision involved no error of law. The claimant could not satisfy the 104-week past-presence condition in regulation 2 of the Social Security (Disability Living Allowance) Regulations 1991.

2. The claimant’s past residence abroad was not a “status” for article 14 purposes. Residence can in some contexts be a status, but the relevant inquiry is whether the differentiating feature is a personal characteristic defining a group. In the context of this condition, past residence merely identified a requirement which every claimant had to meet before a claim could succeed. It did not define the claimant’s character or personality.

3. In any event, the amended condition was not manifestly without reasonable foundation. It was legitimate to require a substantial connection with the United Kingdom before awarding a non-contributory benefit. That connection need not have a direct relationship with the purpose of meeting disability-related costs.

4. Bright-line rules are permissible in principle. They provide certainty and reduce administrative and appeal costs, although an excessive gap between the rule and its policy objective could make a rule unjustified. Here the 104-week rule was demanding but within the latitude available to Parliament and ministers. Its graduated provisions for younger children reflected age and the greater difficulty of establishing disability-related needs at very young ages.

5. The Secretary of State had complied with section 149 of the Equality Act 2010. Compliance had to be assessed by reference to the whole policy-making process, not the equality impact assessment in isolation. The consultation and subsequent adoption of a graduated approach showed due regard to children’s position.

6. The child’s best interests under article 3 of the United Nations Convention on the Rights of the Child 1989 were relevant but not decisive. The evidence showed that they had been treated as a primary consideration. The rule delayed, rather than permanently denied, entitlement, and other sources of support could be available.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal had made no error of law: [2017] UKUT 380 (AAC).
• First-tier Tribunal: dismissed the claimant’s appeal against refusal of disability living allowance, under reference SC242/15/02926, on 16 June 2015.