TS (by TS) v Secretary of State for Work and Pensions (DLA); EK (by MK) v Secretary of State for Work and Pensions (DLA): [2020] UKUT 284 (AAC)

Upper Tribunal Administrative Appeals Chamber decision of Judge Ward on 12 October 2020

• From: HM Courts & Tribunals Service and Upper Tribunal (Administrative Appeals Chamber)
• Published: 30 November 2020

• Categories: DLA, AA, MA: general, Equality Act, Human rights law
• Sub-categories: DLA, AA, MA: general - other, Human rights law - article 14 (non-discrimination)
• Judges: Ward, C
• Decision date: 12 October 2020

Read the full decision in CDLA/2208/2018 & CDLA/2019/2018.

Judicial Summary

1. The Upper Tribunal does not have jurisdiction on a statutory appeal to consider breaches of the Public Sector Equality Duty (“PSED”). Obiter dicta in AK v SSWP [2017] UKUT 420 (AAC) followed. Decision of the High Court in Hamnett v Essex CC [2014] EWHC 246 (Admin) not followed. 2. If, contrary to 1, the Upper Tribunal does have jurisdiction in respect of the PSED, SSWP was in breach of it in relation to children aged 3-16 in extending the Past Presence Test (PPT) from 26 weeks to 104 weeks. 3. The extension of the PPT is in breach of Art 14 with A1P1 in relation to the appellant British national children returning to Great Britain from a period of residence abroad. FM v SSWP [2017] UKUT 380 not followed. 4. Where the challenge is directed to the human rights implications of making existing legislation more onerous, the appropriate remedy is to disapply the amending legislation: RR v SSWP [2019] UKSC 52 applied. 5. The existing line of authority derived from CSDLA/852/2002 regarding advance claims for Disability Living Allowance followed.

Decision selected for reporting as [2021] AACR 4

Published 30 November 2020