The Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992

PART III CARE COMPONENT

Qualifying period for the care component after an interval

6.—(1) The period prescribed for the purposes of section 37ZB(2)(a)(ii) is a period of 3 months ending on the day on which the person was last entitled to the care component or to attendance allowance where that day falls not more than 2 years before the date on which entitlement to the care component would begin, or would have begun but for any regulations made under Article 52(1)(l) of the 1986 Order (which enables regulations to provide for the day on which entitlement to benefit is to begin or end).

(2) Except in a case to which paragraph (3) applies, this regulation shall apply to a person to whom paragraph 3 or 7 of Schedule 1 refers as if for the reference to 3 months in paragraph (1) there were substituted a reference to 6 months.

(3) Paragraph (1) and not paragraph (2), shall apply to those persons referred to in paragraph (2) who, on the day before they attained the age of 65, had already completed the period of 3 months referred to in paragraph (1).

(4) For the purposes of paragraph (3), the modification made in paragraphs 3(2) and 7(2) of Schedule 1, to section 37ZB(2)(a) (qualifying period for the care component) shall be treated as not having been made.

Renal dialysis

7.—(1) A person who suffers from renal failure and falls within the provisions of paragraph (2) shall be taken to satisfy the conditions—

(a) in paragraph (b) of section 37ZB(1) (severe physical or mental disability) where he undergoes renal dialysis by day;

(b) in paragraph (c) of section 37ZB(1) where he undergoes renal dialysis by night;

(c) in either paragraph (b) or paragraph (c) of section 37ZB(1), but not both, where he undergoes renal dialysis by day and by night.

(2) Subject to paragraph (3), a person falls within the provisions of this paragraph—

(a) if—

(i) he undergoes renal dialysis 2 or more times a week, and

(ii) the renal dialysis which he undergoes is of a type which normally requires the attendance or supervision of another person during the period of the dialysis, or

(iii) because of the particular circumstances of his case, he in fact requires another person during the period of dialysis to attend in connection with his bodily functions, or to supervise him during the period of the dialysis, in order that he avoids substantial danger to himself; and

(b) if, where he undergoes renal dialysis as an out-patient in a hospital or similar institution, being treatment provided under the Order, no member of the staff of that hospital or institution assists with or supervises that dialysis.

(3) Paragraph (2)(b) does not apply for the purpose of determining whether a person is to be taken to satisfy any of the conditions mentioned in paragraph (1) during the period of 3 months referred to in section 37ZB(2)(a)(i).

(4) Except to the extent that provision is made in paragraph (2)(b), a person who undergoes treatment by way of renal dialysis as an out-patient in a hospital or similar institution, being treatment provided under the Order, shall not be taken solely by reason of the fact that he undergoes such dialysis as satisfying any of the conditions mentioned in section 37ZB(1)(a) to (c).

Hospitalisation

8.—(1) Subject to regulation 10, it shall be a condition for the receipt of disability living allowance which is attributable to entitlement to the care component for any period in respect of any person, that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient—

(a) in a hospital or similar institution maintained or administered under the Order;

(b) in pursuance of arrangements made, or having effect as if made, by a Health and Social Services Board established under Article 16 of the Order, the Secretary of State or the Defence Council, in a hospital or similar institution;

(c) in a hospital or similar institution maintained or administered by the Defence Council or a Health and Social Services trust; or

(d) in a hospital or similar institution in pursuance of arrangements made by a member of a recognised fund-holding practice.

(2) For the purposes of paragraph (1) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under Article 31 of the Order(1) or paragraph 14 of Schedule 3 to the 1991 Order.

(3) In this regulation—

• “Health and Social Services trust” has the meaning assigned to it by Article 10 of the 1991 Order;

• “recognised fund-holding practice” means a practice to be construed in accordance with Article 17 of the 1991 Order.

Persons in certain accommodation other than hospitals

9.—(1) Except in the cases specified in paragraphs (2) and (4) and, for the purposes of sub-paragraph (b), paragraph (5), and for the purposes of sub-paragraph (c), paragraphs (5) to (7), and subject to regulation 10, a person shall not be paid any amount in respect of disability living allowance which is attributable to entitlement to the care component for any period where throughout that period he is a person for whom accommodation, not being accommodation to which regulation 8 refers, is provided—

(a) in pursuance of Article 5, 7, 15 or 36 of the Order(2);

(b) in circumstances where the cost of the accommodation is borne wholly or partly out of public or local funds in pursuance of that enactment or of any other enactment relating to persons under disability or to young persons or to education or training; or

(c) in circumstances where the cost of the accommodation may be borne wholly or partly out of public or local funds in pursuance of that enactment or of any other enactment relating to persons under disability or to young persons or to education or training.

(2) Paragraph (1) shall not apply in the case of a child—

(a) who has not attained the age of 16 and is in the care of a Health and Social Services Board or the Department; or

(b) who has not attained the age of 18 and—

(i) whose health or development is likely to be significantly impaired, or further impaired, without the provision for him of services by a Health and Social Services Board or the Department, or

(ii) who is disabled,

during any period during which the Health and Social Services Board or the Department, in whose care the child is, place him in a private dwelling with a family, or a relative of his, or some other suitable person.

(3) For the purposes of paragraph (2), a child is disabled if he is blind, deaf or dumb or suffers from mental disorder of any kind or is substantially and permanently handicapped by illness, injury or congenital deformity and in this regulation—

“development” means physical, intellectual, emotional, social or behavioural development; and

“health” means physical or mental health.

(4) Paragraph (1) shall also not apply in the case of a child who is accommodated outside the United Kingdom where the cost of the accommodation is or may be borne wholly or partly by a Health and Social Services Board or the Department pursuant to their powers under Article 31(3) of the Education and Libraries (Northern Ireland) Order 1986(3).

(5) Paragraph (1)(b) and (c) shall not apply in the case of a person who is terminally ill, where the Department has been informed of that fact—

(a) on a claim for the care component;

(b) on an application for a review of an award of disability living allowance; or

(c) in writing in connection with an award of, a claim for, or an application for a review of an award of, disability living allowance.

(6) Paragraph (1)(c) shall also not apply—

(a) where the person is living in accommodation as a privately fostered child;

(b) where he is a person for whom accommodation is made available for his occupation in accordance with Article 10 of the Housing (Northern Ireland) Order 1988(4) (duties of the Executive to persons found to be homeless);

(c) where the person himself pays the whole cost, and has always paid the whole cost, of the accommodation; or

(d) except in a case to which paragraph (7) applies, where the accommodation the person is living in is a private dwelling.

and for the purposes of this paragraph “privately fostered child” shall be construed in accordance with the provisions of Part I of the 1968 Act(5).

(7) This paragraph applies where—

(a) the cost of the accommodation the person previously occupied was borne in whole or in part out of public or local funds and where he was moved out of that accommodation at the instigation of the body which bore the cost into a home for persons in need; or

(b) the person is living in a home for persons in need and at least 3 other persons in that home are provided with board and personal care, excluding persons carrying on the home or employed there or their relatives,

and for the purposes of this paragraph “home for persons in need” has the same meaning as in Article 2(2) of the Order(6).

(8) In this regulation, references to the cost of the accommodation shall not include the cost of—

(a) domiciliary services provided in respect of a person in a private dwelling;

(b) improvements made to, or furniture or equipment provided for, a private dwelling on account of the needs of a person under disability;

(c) improvements made to, or furniture or equipment provided for, residential homes or other homes or premises in respect of which a grant or payment has been made out of public or local funds except where the grant or payment is of a regular or repeated nature;

(d) social and recreational activities provided outside the accommodation in respect of which grants or payments are made out of public or local funds; or

(e) the purchase or running of a motor vehicle to be used in connection with the accommodation in respect of which grants or payments are made out of public or local funds.

Exemption from regulations 8 and 9

10.—(1) Subject to paragraphs (2) and (3), regulation 8 or, as the case may be, regulation 9, shall not apply to a person for the first 28 days of any period throughout which he is someone to whom paragraph (4) refers.

(2) Subject to paragraph (3), regulation 8 shall not apply to a person who has not attained the age of 16 for the first 84 days of any period throughout which he is someone to whom paragraph (4) refers.

(3) Where on the day on which the person’s entitlement to the care component commenced, he is a person to whom paragraph (4) refers, then paragraph (1) or, as the case may be, paragraph (2) shall not apply to him for any period of consecutive days, beginning with that day, in which he continues to be a person to whom paragraph (4) refers.

(4) This paragraph refers to a person who—

(a) is undergoing medical or other treatment in a hospital or similar institution in any of the circumstances mentioned in regulation 8; or

(b) is in accommodation provided in any of the circumstances mentioned in regulation 9.

(5) For the purposes of paragraphs (1) and (2)—

(a) 2 or more distinct periods separated by an interval not exceeding 28 days, or by 2 or more such intervals, shall be treated as a continuous period equal in duration to the total of such distinct periods and ending on the last day of the later or last such period;

(b) any period or periods to which regulation 8(1) or 9(1) refers shall be taken into account and aggregated with any period to which the other of them refers.

(1)

Article 31 was substituted by Article 3(9) of the Health and Medicines (Northern Ireland) Order 1988 (S.I. 1988/2249 (N.I. 24))

(2)

Article 36 was amended by Article 11(2) of the Health and Personal Social Services (Northern Ireland) Order 1978 (S.I. 1978/1907 (N.I. 26))

(3)

S.I. 1986/594 (N.I. 3)

(4)

S.I. 1988/1990 (N.I. 23)

(5)

Part I was amended by Part II of Schedule 6 to the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)), Schedule 5 to the Insurance Companies Act 1982 (c. 50) and Schedule 4 to, and Part II of Schedule 5 to, the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22))

(6)

In Article 2(2), the definition of “home for persons in need” was amended by Schedule 2 to the Health and Personal Social Services (Northern Ireland) Order 1978