DLA- step parent derived rights and past presence rules test case?

The client is a seven year old Pakistani national who came to the UK in February 2020 and claimed DLA in July 2020.

He lives with his father, also a Pakistani national, and his step-mother who is a Romanian national.

He is appealed in February 2021 against a decision to refuse him DLA on the grounds that he had not been resident in the UK for at least 104 weeks out of the last 156 weeks.

The DWP is submitting that he has no DLA entitlement on two grounds.

First, the client is a Pakistani national and is the step child of a EU national.

He cannot derive rights from her as a step parent does not come within the definition of a ‘family member’.

Second, at the time the DLA claim was made its past presence test was 104 weeks out of 156 weeks.

This reverted for children age 3 to 16 years to 26 weeks out of 52 weeks due to [2020] UKUT 284 (AAC)

This was decided on 12 October 2020 and is a “relevant determination” (test case).

As the client claimed DLA before that date he cannot benefit from [2020] UKUT 284 (AAC).

Are the DWP correct on either or both of the above?

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