Past presence test and aggregation rules
Kavanagh v Secretary of State and Pensions CDLA/373/2016, 2016 [UKUT] 0547 (AAC)
This appeal concerns the application of the ‘past presence’ test that requires disability benefit claimants to be resident in Great Britain for 104 weeks out of the 156 weeks prior to the claim. However, for claimants to whom an EU regulation applies, the past presence test is disapplied if they can establish a genuine and sufficient link to the UK social security system. Alternatively, they can seek to satisfy the 2 year rule by aggregating qualifying periods spent in another EU country under Article 6 of EU Regulation 883/2004. EU Regulation 883/2004 coordinates social security systems in the EU and Article 6 provides that certain periods of time spent in one member state can be aggregated when considering presence tests in another.
The issues before the UT in the present case were twofold:
(i) what type of residence is covered by the term ‘residence completed under the legislation’ of any other Member State for the purpose of aggregation; and
(ii) whether the requirement for a genuine and sufficient link is limited o a country’s social security system or to the country as a whole.
In this case, the 16 year old claimant is an Irish citizen with Asperger’s syndrome. His mother, and his appointee, is a British citizen. She moved to Ireland before her son was born. She returned to the UK in June 2013 and claimed disability living allowance (DLA) for her son, who was a child at the time. Applying the past presence test, the Department for Work and Pensions (DWP) refused the claim as it held that the claimant had not been present in the UK for 104 weeks out of the previous 156 weeks prior to the claim.
The case was heard before the Upper Tribunal on 4 November 2016, together with the linked appeal of SSWP v Mohamed CA/224/2015. CPAG submitted that the genuine and sufficient link requirement was to the country as a whole, not just its social security system and that the Appellant had a genuine and sufficient link to the UK due to his mother’s British citizenship, personal history and connection with the United Kingdom social security system. On the aggregation rules, it was argued that the Appellant’s residence in Ireland where he qualified for domiciliary care allowance constituted ‘residence completed under the legislation’ of Ireland and therefore could be aggregated with residence in the United Kingdom for the purpose of the past presence test.
The Tribunal held that the Appellant’s residence in Ireland did not qualify as ‘residence completed under the legislation’ of that country and so could not be aggregated with presence in Great Britain to satisfy the past presence test for disability benefits. With regards to ‘genuine and sufficient link’ test, Judge Jacobs agreed with CPAG that it is enough to have a link with the UK, not with the UK’s social security system and that the requirement to demonstrate the link with the social security system was contrary to EU law. Further, the Tribunal also ruled that presence alone may establish a ‘genuine and sufficient link’. However, on the facts of the case, the Tribunal decided that the Appellant did not have a genuine and sufficient link to the UK.
CPAG is appealing the Upper Tribunal decision to the Court of Appeal in relation to the factual finding on the genuine and sufficient link requirement. The SSWP has cross-appealed against the decision that the requirement that the genuine and sufficient link is to a country’s social security system is contrary to EU law and that the genuine and sufficient link may be satisfied by mere presence.
The case will be heard in the Court of Appeal on 7 Feb 2019.