I have a client that is from Brazil and has unilmited leave to remain in the UK.

He adopted his Brazilian nephew in 2005. The nephew became seriously ill and the client claimed DLA in April 2007. There was a delay in deciding the claim due to the checking of their immgiration status'.

Whilst the client was awaiting the decision the client took the child to Brazil for a bone marrow transplant (on the advice of Great Ormund Street and the courts) on 21/11/07. The client returned to the UK in December 2007 but the child remained in Brazil until 20/02/08 when he died.

The client then received a decision about the DLA sometime in early 2008 advising that the child was not entilted to DLA because he was not residing in the UK. The client accepts that the child was out of the country from Nov 2007 but wants DLA from between April and Nov 2007 when the child was here.

The client has been to appeal and has been unsuccessful. Should he go to the commissioners or is the decision correct?

Wed 02-Jul-08 06:09 PM by paul__moorhouse

On the basis of the information that you have provided. I can see no reason why he shouldn't appeal on the basis that his nephew/adoptive son was entitled throughout the time till he died.

Let's examine the two periods separately:

For the first period (until November) he appears to have satisfied the presence and residence test. This is that, on each day, he was present and ordinarily resident and had been both present and ordinarily resident for not less than 26 out of the last 52 weeks.

For the second period (assuming that, had the operation been successful, he would have returned to the UK with his uncle): although he was not present, he continued to be ordinarily resident. In this situation he can continue to be paid for up to 26 weeks of temporary absence (and longer in certain circumstances).

(the rules are in regulation 2 of the DLA regulations)

I can't see that the fact that he died should alter the fact that the absence was temporary and remained so until his death.

However, the fact that the Tribunal reached such a different decision does make me wonder whether it could have been based on some fact (or mistake about a fact) that you are not aware of, such as a prolonged absence before April 2007. I would suggest that he asks for a record of proceedings and written reasons for the tribunals decision if these don't reveal new information which undermines the summary I set out above then I would have thought that he has good grounds for appealing.