The Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

Regulations 2 to 4 of these Regulations amend three sets of regulations as a result of a judgment in the European Court of Justice (ECJ) in October 2007 in case C-299/05 Commission of the European Communities v European Parliament and Council of the European Union ([2007] ECR I-8695). This judgment determined that it was unlawful for the Department for Work and Pensions to terminate an award of attendance allowance, carer’s allowance or the care component of disability living allowance when a person moves from Great Britain to elsewhere in the European Economic Area or to Switzerland. These Regulations ensure that persons whose award of one of these benefits was terminated upon such a move or a proposed move, may be re-awarded benefit from the date of the ECJ judgment.

Regulation 2 amends the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I.1999/991) so that where, as a result of the ECJ judgment, the Secretary of State supersedes the original decision to terminate entitlement to those benefits, this new supersession decision takes effect from the date of the ECJ judgment (allowing claimants to reclaim benefit from this date).

Regulation 3 amends the Social Security (Claims and Payments) Regulations 1987 (S.I.1987/1968) so that where there was an earlier award and the decision to terminate entitlement could not be superseded, a claim can be backdated to the date of that judgment, provided that the claimant has not already received an extra-statutory payment for the same period.

Regulation 4 amends the Social Security (Disability Living Allowance) Regulations 1991 (S.I.1991/2890) to ensure that the normal condition that new claims for disability living allowance are not payable to those aged 65 or over, is not applicable where a person who lost entitlement to the care component of that allowance on such a move or proposed move, reclaims that benefit following the ECJ judgment.

In addition, regulation 5 amends the Social Security Contributions and Benefits Act 1992 (c.4) to ensure that a person to whom either Regulation (EC) No 1408/71 or Regulation (EC) No 883/2004 applies shall only be entitled to an attendance allowance, a carer’s allowance or the care component of a disability living allowance when the United Kingdom (rather than another EEA Member State or Switzerland) is responsible under the EU Regulations for payment of sickness benefits to that person.

Regulation 5 refers to both Regulation (EC) No 1408/71 and Regulation (EC) No 883/2004 given that whilst Regulation (EC) No 883/2004 came into force on 1 May 2010 replacing Regulation (EC) No 1408/71, Regulation (EC) No 1408/71 remains in force for the purposes described in Article 90 of Regulation (EC) No 883/2004.

A full impact assessment has not been produced for this instrument as it has no impact on the private sector or civil society organisations.