Refusal for application for DLA for my disabled daughter

PaulaFisher

I am a british citizen, and my husband and 2 girls, emigrated to the UK from South Africa 2 years ago.    My youngest daughter is 10 and severely mentally and physically disabled.     I was advised by her support team to apply for DLA before 2 years is up, as i am British.     I did, and i was declined, saying my daughter needs to be in UK for at least 2 years.    So i applied on our 2 year anniversary living in UK.   I received letter today, with decline and reason:
This is because you are subject to immigration control.   People subject to immigration control cannot get DLA.   Your residence permit states No Public Funds. 

So this is true of my daughter, but why am i being declined (i am not subject to immigration control)  as she is my dependent, and I should be eligible to claim DLA as her mother and carer.   

Any advice ? 

janer1967

Hi there I'm sorry to hear this but I would have thought it is correct as the claim is for your daughter and it would be her disability that you are claiming for not yourself 

I am no expert though so you should maybe contact welfare rights for advice 

Other members may know 

PaulaFisher

Thanks everyone.   There is no such thing as disability living allowance in SA.    Surely the Disability living allowance is what helps the parents of the child to support them with the extortinate living expenses.   I will get hold of someone at welfare rights for advice.    

calcotti

Username_removed said:

You are the appointee for your daughter as they are a child under 16. Being an appointee means that you become the claimant. Ergo...

I thought an appointee was authorised to act on behalf of the claimant.

calcotti

Username_removed said:

To all intents and purposes you become the claimant. You’re expected to claim, renew, make disclosures, notify changes etc. 

Fully understand that but the question is are they legally the claimant or are they acting  on behalf of the claimant. I think the latter (but can’t work out where that would be set out in legislation).

Certainly in guidance for adult benefits DWP describe appointees as acting on behalf of the claimant.
https://www.gov.uk/government/publications/procedures-for-dealing-with-agents-appointees-attorneys-deputies-and-third-parties/part-5-appointee

5050. An appointee becomes fully responsible for acting on the customer’s behalf in all the customer’s dealings with the department – they stand in the shoes of the claimant. 

calcotti

Fully understand your take on DWP guidance. It was the only thing I could find, but it’s why I said I couldn’t work out where to go for legislative authority.

Will have to now to your experience. However if DWP are treating the child as the claimant it explains why the claim has been denied. If that is incorrect, then MR and appeal?

calcotti

I think the relevant legislation for DLA may still be the SS(C&P)Regs 1987. Problematic or not this does use the phrase ‘on behalf of’ (Regulation 43).

In any case where a claim for disability living allowance for a child is received by the Secretary of State, he shall, in accordance with the following provisions of this regulation, appoint a person to exercise, on behalf of that child, any right to which he may be entitled under the Social Security Act 1975 in connection with disability living allowance and to receive and deal on his behalf with any sums payable by way of that allowance.

Apologies to the poster if this seems obscure but it goes to the heart of the matter. Which one of you is the claimant will determine whether or not the claim is permitted given that your daughter has NRPF.

My reading of this is that the child is treated as the claimant but Mike, who has experience of this whereas I do not, has indicated there may be case law suggesting otherwise (with apologies to Mike if I have misinterpreted what he has said).

calcotti

woodbine said:

I would see it as an application by the parent on behalf of the child, and if the parent has NRPF then no benefit will be paid which is what the DWP told them.

It is the child that is subject to NRPF, not the parent.

Marie12

from from Citizens Advice it would appear that the child must have recourse to public funds. It also states that a claim may affect immigration status so I suggest maybe talking to an immigration solicitor 

https://www.citizensadvice.org.uk/benefits/sick-or-disabled-people-and-carers/disability-living-allowance/before-you-claim-dla/check-if-you-can-get-dla/

calcotti

From which we can conclude that as the child has NRPF the parent cannot claim DLA for them and the DWP decision in this case is correct.

What Mike has outlined is exactly how I interpret the intended meaning of ‘on behalf of’ (regardless of whether we like the phrase or not). The appointee takes on the role of the claimant but is not the claimant.

calcotti

Being the claimant “to all intents and purposes” is not, to my mind, the same as being the claimant. I interpret the child to be the claimant even though the appointee stands in their place in respect of the management of the claim.

However the important matter is not the semantics but the practical significance.
I infer from "the person who is the subject of the claim is the person who must meet the conditions of entitlement" that, given that the child has NRPF, you think the decision to refuse the claim is correct which is my conclusion too.

Ross_Alumni

Hi @PaulaFisher

How are you? I hope the replies on this thread have been helpful for you.

calcotti

Thanks, Mike.

PaulaFisher

Thank you all for the detail on this question.    Can anyone tell me, if my applications for DLA put my daughter at risk of breach of immigration rules of NRPF?    I am concerned that my application for the DLA claim, but is applying for it, detrimental to her ILR, as we approach our extension of our first 33 months in UK.   

Caz_Alumni

Hi @PaulaFisher,

Hopefully, the info on this thread has been helpful to you so far? 

In terms of the immigration related issues that you're asking about, you will need to get in touch with someone who is qualified to provide immigration advice about your daughter's status. I wonder, have you managed to speak to a specialist immigration advice service, or a legal representative about this?

@Caz_Scope

PaulaFisher

@Caz_Scope - i have queried this with Citizens Advice, but they said it is complicated, so i have an appointment with a lawyer at Citizens advice next week.

Caz_Alumni

That's good to hear @PaulaFisher.

Immigration can be a complex area. But hopefully they will be able to provide you with the specialist  advice that you might need. 

Keep us posted with everything and get in touch if we can help out with anything else.

Caz_Alumni

That's a fair point @Username_removed - thanks for clarifying my earlier post. 

So, in that respect, good to see that the CAB have already organised an appointment with a legal rep for @PaulaFisher.