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Refusal for application for DLA for my disabled daughter

PaulaFisherPaulaFisher Member Posts: 4 Listener
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 ? 

Replies

  • janer1967janer1967 Member Posts: 11,205 Disability Gamechanger
    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 
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    You are the appointee for your daughter as they are a child under 16. Being an appointee means that you become the claimant. Ergo...
  • woodbinewoodbine Community Co-Production Group Posts: 4,534 Disability Gamechanger
    As @janer1967 says it's not you that's being declined but your daughter, what they say is i'm probably certain due to not being allowed access to public funds,it's a difficult one to get clarifiaction on a disability website as it's a legal matter and you might need to get advice from a solicitor that knows all about these laws. Did your daughter get disability payments in S.Africa?
    "Putting a child into care, isn't caring for a child" (T.Rhattigan)
  • PaulaFisherPaulaFisher Member Posts: 4 Listener
    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.    
  • calcotticalcotti Member Posts: 2,250 Pioneering
    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.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    To all intents and purposes you become the claimant. You’re expected to claim, renew, make disclosures, notify changes etc. 
  • calcotticalcotti Member Posts: 2,250 Pioneering
    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. 


    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    edited March 19
    I’m not sure how else one might interpret standing in the shoes of a claimant. Case law has always said unequivocally that the appointee is the claimant. Indeed the phrase I used “... to all intents and purposes...” is a quote from that case law, which is (sadly) so ingrained in my psyche I tend to quote it without even pausing to think from whence it came nowadays. 

    I’ve long history with appointeeship as I had a community care WR role for some years but also specialised in the recoverability of overpayments where the issue of liability came up repeatedly i.e. who was appointee and when; who ought to have disclosed etc. Back in the office I’ve books of case law on just this one thing but sadly at the moment there is no office bar home.

    There is an excellent Mitchell decision which points out the absolute lack of safeguards for a claimant when someone becomes their appointee. Not covered by the MCA etc.. Makes sense that there is beggar all a claimant can do legally as in fact they are no longer the claimant.

    I would disregard DWP guidance on the point as I would with most things nowadays. The use of “on behalf of” is very poor English indeed. It suggests there is a requirement for some input from the claimant to an appointee who merely represents their views and interests whereas in the case of an appointeeship the claimant effectively ceases to exist. Claimants consent is no longer required for any aspect of their claim as they are not the claimant. 

    Let’s not forget that this is an organisation so up to speed with its own legislation that in the last decade it has had to review and rescind literally tens of thousands of appointeeships it put in place for people with physical disabilities but no actual mental incapacity. 
  • calcotticalcotti Member Posts: 2,250 Pioneering
    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?
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    Things have gotten complex since UC came along. Used to all be under the C&P regs and one appointeeship across all benefits. Now it’s close to one application per benefit. In DWP heads that doubtless renders a lot of the case law null and void. Our in the real world I very much doubt it is. 
  • calcotticalcotti Member Posts: 2,250 Pioneering
    edited March 19
    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).
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • woodbinewoodbine Community Co-Production Group Posts: 4,534 Disability Gamechanger
    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.
    "Putting a child into care, isn't caring for a child" (T.Rhattigan)
  • calcotticalcotti Member Posts: 2,250 Pioneering
    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.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • Marie12Marie12 Member Posts: 10 Connected
    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/
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    edited March 20
    There’s a danger of conflating two things here. 

    The claimant ceases to be the claimant when they have an appointee. 

    However, it doesn’t take too much thinking about to realise that, when looking at the conditions of entitlement, it must be those of the original claimant which count rather than those of the appointee. 

    Imagine for a moment the scenario where the claimant has no recourse to public funds etc. but their appointee does and so the rules which need to be satisfied are circumvented and payment is made to the appointee where it would not be to the original claimant. That would clearly be a nonsense and make an unholy mess of regs designed for a clear purpose. 

    So, the subject of the claim must meet the basic conditions of entitlement but after that everything falls onto the appointee. All the rights and responsibilities which would ordinarily fall on a claimant fall on the appointee. However, there is no sense other than the very literal in which they take that role “on behalf of” the subject of the claim. They need no permission from the subject of the claim to do anything. 

    If the subject ceases to be entitled they cannot be punished for a failure to disclose a relevant change of circumstances because the very nature of an appointeeship is that it was made on the basis that the subject of the claim lacks the capacity to manage their own claim. 

    Where there is a failure to disclose you don’t look at the subject of the claim and say “ah but they lack mental capacity so they can never fall foul of these rules”. Again that would clearly be daft. Instead you look at the circumstances pertaining to the appointee. Were they able to disclose etc. 

    Now okay there are three different types of appointees - those for a child because they’re under 16; those for an adult who lacks capacity and those after death - but the general principles espoused above apply to all three. 

    I hope that clarifies it.
  • calcotticalcotti Member Posts: 2,250 Pioneering
    edited March 20
    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.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    No that’s not what I’m saying. The appointee is “to all intents and purposes” the claimant. However, the person who is the subject of the claim is the person who must meet the conditions of entitlement. They are a claimant in name only.
  • calcotticalcotti Member Posts: 2,250 Pioneering
    edited March 20
    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.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • Ross_ScopeRoss_Scope Posts: 4,213

    Scope community team

    Hi @PaulaFisher

    How are you? I hope the replies on this thread have been helpful for you.
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  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    Yes I have come to the same conclusion as you @calcotti.
  • calcotticalcotti Member Posts: 2,250 Pioneering
    Thanks, Mike.
    Information I post is for England unless otherwise stated. Rules may be different in other parts of UK.
  • PaulaFisherPaulaFisher Member Posts: 4 Listener
    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.   
  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    It is illegal to give immigration advice unless you are a qualified to do so thus no-one pm a forum can offer you anything. You need to obtain immigration advice from an advice service with an immigration adviser. 
  • Caz_AlumniCaz_Alumni Scope alumni Posts: 626 Pioneering
    edited March 22
    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?

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  • PaulaFisherPaulaFisher Member Posts: 4 Listener
    @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_AlumniCaz_Alumni Scope alumni Posts: 626 Pioneering
    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.
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  • mikehughescqmikehughescq Member Posts: 6,644 Disability Gamechanger
    Worth emphasizing again for the benefit of other that there is no "probably need to get in touch with someone who is qualified to provide immigration advice". The choices are between getting no advice and getting someone actually permitted to give this advice. Other than in very unusual circumstances no CitA volunteer would be able to provide such advice thus why they're referring you to their associated solicitor. Even then you will need to check that said person is qualified to give that advice. This is a highly regulated area and advisers can be prosecuted if they offer advice on this beyond their remit. Much more so than other areas of advice work.  
  • Caz_AlumniCaz_Alumni Scope alumni Posts: 626 Pioneering
    That's a fair point @mikehughescq - 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
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