HCLC Blog

First-tier Tribunal decides that Department for Work and Pension’s Past Presence Test for Personal Independence Payment unlawfully discriminates against victims of domestic abuse

24/11/2022

 

The First-tier Tribunal (Social Entitlement Chamber) has decided that the Past Presence Test (that claimants must have been in Great Britain for two of the last three years to be eligible) for Personal Independence Payment is unlawfully discriminatory against victims of domestic abuse who have been granted the Destitution Domestic Violence Concession or Indefinite Leave to Remain under the Domestic Violence Settlement Route.  

 

Our Jeremy Ogilvie-Harris represented the appellant arguing that reg. 16(b) of the The Social Security (Personal Independence Payment) Regulations 2013 breached Protocol 1 Article 1 (right to personal possessions) and Article 1 (right not to be discriminated against) 4 of the European Convention of Human Rights and, accordingly, s. 6(1) of the Human Rights Act 1998.

 

The First-tier Tribunal accepted the appellant’s evidence which established the following:

1. The appellant had been subjected to domestic abuse causing her mental health to deteriorate.
2. Domestic abuse was more likely to be perpetrated on women.
3. Domestic abuse is likely to cause mental and physical disability.
4. The appellant was more likely than not to rely on Social Security Benefits particularly in situation where she does not have family in the United Kingdom and had recently arrived in the United Kingdom and had not built up a support network.
5. The appellant was discriminated against because she was unable to access to Personal Independence Payment because of the Past Presence Test.
6. There was no credible evidence or public policy upon which to find such discrimination can be justified

Accordingly, the First-tier Tribunal accepted the submission that reg. 16(b) of the PIP Regs unlawfully discriminated against victims of domestic abuse with the Destitution Domestic Violence Concession or Indefinite Leave to Remain under the Domestic Violence Settlement Route.

 

The First-tier Tribunal accepted that it had the power to “disapply” reg. 16(b) in the appellant’s case. As the regulations were in breach of s6(1) of the Human Rights Act 1998, and, being secondary legislation, the defence in s6(2) of the Human Rights Act 1998 did not apply, the Judge followed Lady Hale’s reasoning in RR v SSWP [2019] UKSC 52 at [27]:

 

"There is nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA".

 

The appellant was successful and her case has been remitted to the Department for Work and Pensions to determine whether she will score sufficient points to be awarded Personal Independence Payment.

 

The Department for Work and Pensions have a month to seek a statement of reasons or appeal the decision. If the decision is not appealed, we hope that the Secretary of State for Work and Pensions will amend the regulations to provide for an exception to the Past Presence Test for those with the Destitution Domestic Violence Concession or Indefinite Leave to Remain under the Domestic Violence Settlement Route.