June 2019 – Genuine Link to UK Required to Satisfy Past Presence Test

03/06/2019
For some disability benefits, claimants must show that they have been present in the UK for a specified period of time prior to the claim in order to qualify. This provision is known as the past presence test.

Following a recent Court of Appeal decision (regarding whether a claimant who has been resident in an EEA member state or Switzerland meets the past presence test) new guidance has now been issued in relation to the past presence test for disability and carers benefits.

 

The DWP advises when applying the past presence test for the purposes of the care component of disability living allowance, attendance allowance personal independence payment and carers allowance the genuine and sufficient link (GSL) required is to the UK and not the social security system in the UK.

In assessing whether such a GSL is established, objective evidence to prove the link is plainly critical but evidence of the motives, intentions and expectations of the applicant should be taken into account if they are relevant to proof of the link and are convincing. However, it advises a cautious approach in line with the judgment  

 

Decision makers and, on appeal, the courts are entitled to be cautious about self-serving statements by applicants, especially if the benefits are claimed immediately on or only shortly after arrival in the UK. Such caution is justified not only because self-serving statements as to motives, intentions and expectations may not be genuine but also because, even if they are genuine, actual realisation of the intentions and expectations of the applicant will not have been tested by the passage of time and the realities of the situation

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