The Employment and Support Allowance Regulations 2008

Changes over time for: Paragraph 6

Version Superseded: 26/11/2014

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Point in time view as at 27/10/2014. This version of this provision has been superseded.

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6.—(1) The condition is that the claimant is a severely disabled person.

(2) For the purposes of sub-paragraph (1), a claimant is to be treated as being a severely disabled person if, and only if—

(a)in the case of a single claimant, a lone parent[F1, a person who has no partner and who is responsible for and a member of the same household as a young person] or a claimant who is treated as having no partner in consequence of sub-paragraph (3)—

(i)the claimant is in receipt of the care component[F2, the daily living component][F3, armed forces independence payment] [F4or attendance allowance];

(ii)subject to sub-paragraph (4), the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing; and

(iii)no person is entitled to, and in receipt of, a carer's allowance under section 70 of the Contributions and Benefits Act in respect of caring for the claimant;

(b)in the case of a claimant who has a partner—

(i)the claimant is in receipt of the care component[F5, the daily living component][F6, armed forces independence payment] [F7or attendance allowance];

(ii)the claimant's partner is also in receipt of the care component[F8, the daily living component][F9, armed forces independence payment] or attendance allowance or, if the claimant is a member of a polygamous marriage, all the partners of that marriage are in receipt of the care component[F8, the daily living component][F9, armed forces independence payment] or attendance allowance; and

(iii)subject to sub-paragraph (4), the claimant has no non-dependants aged 18 or over normally residing with the claimant or with whom the claimant is normally residing,

and, either a person is entitled to, and in receipt of, a carer's allowance in respect of caring for only one of the couple or, in the case of a polygamous marriage, for one or more but not all the partners of the marriage or, as the case may be, no person is entitled to, and in receipt of, such an allowance in respect of caring for either member of the couple or any partner of the polygamous marriage.

(3) Where a claimant has a partner who does not satisfy the condition in sub-paragraph (2)(b)(ii) and that partner is blind or severely sight impaired or is treated as blind or severely sight impaired that partner is to be treated for the purposes of sub-paragraph (2) as if the partner were not a partner of the claimant.

(4) For the purposes of sub-paragraph (2)(a)(ii) and (b)(iii) no account is to be taken of—

(a)a person receiving attendance allowance,[F10the daily living component][F11, armed forces independence payment] or the care component;

(b)subject to sub-paragraph (7), a person who joins the claimant's household for the first time in order to care for the claimant or the claimant's partner and immediately before so joining the claimant or the claimant's partner was treated as a severely disabled person; or

(c)a person who is blind or severely sight impaired or is treated as blind or severely sight impaired.

(5) For the purposes of sub-paragraph (2)(b) a person is to be treated—

(a)as being in receipt of attendance allowance or the care component if the person would, but for the person being a patient for a period exceeding 28 days, be so in receipt;

(b)as being entitled to, and in receipt of, a carer's allowance if the person would, but for the person for whom the person was caring being a patient in hospital for a period exceeding 28 days, be so entitled and in receipt.

[F12(c)as being in entitled to, and in receipt of, the daily living component if the person would, but for regulations under section 86(1) (hospital in-patients) of the 2012 Act, be so entitled and in receipt.]

(6) For the purposes of sub-paragraph (2)(a)(iii) and (b), no account is to be taken of an award of carer's allowance to the extent that payment of such an award is backdated for a period before the date on which the award is first paid.

(7) Sub-paragraph (4)(b) is to apply only for the first 12 weeks following the date on which the person to whom that provision applies first joins the claimant's household.

(8) In sub-paragraph (2)(a)(iii) and (b), references to a person being in receipt of a carer's allowance are to include references to a person who would have been in receipt of that allowance but for the application of a restriction under section [F136B or] 7 of the Social Security Fraud Act 2001 (loss of benefit provisions).

(9) In this paragraph—

“blind or severely sight impaired” means registered as blind or severely sight impaired in a register compiled by a local authority under section 29 of the National Assistance Act 1948 F14 (welfare services) or, in Scotland, has been certified as blind and in consequence the person is registered as blind in a register maintained by or on behalf of a regional or island council and a person who has ceased to be registered as blind or severely sight impaired where that person's eyesight has been regained is, nevertheless, to be treated as blind or severely sight impaired for a period of 28 weeks following the date on which the person ceased to be so registered;

“the care component” means the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 72(3) of the Contributions and Benefits Act.

Textual Amendments

F1Words in Sch. 4 Pt. 2 para. 6(2)(a) inserted (31.10.2011) by The Social Security (Work-focused Interviews for Lone Parents and Partners) (Amendment) Regulations 2011 (S.I. 2011/2428), regs. 1, 5(5)(b)

F2Words in Sch. 4 para. 6(2)(a)(i) inserted (8.4.2013) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations 2013 (S.I. 2013/388), reg. 2, Sch. para. 40(5)(b)(i)

F3Words in Sch. 4 para. 6(2)(a)(i) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I. 2013/591), art. 2(2), Sch. para. 37(5)(b)(i)

F4Words in Sch. 4 para. 6(2)(a)(i) inserted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 23(14)(a)

F5Words in Sch. 4 para. 6(2)(b)(i) inserted (8.4.2013) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations 2013 (S.I. 2013/388), reg. 2, Sch. para. 40(5)(b)(ii)

F6Words in Sch. 4 para. 6(2)(b)(i) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I. 2013/591), art. 2(2), Sch. para. 37(5)(b)(ii)

F7Words in Sch. 4 para. 6(2)(b)(i) inserted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 23(14)(b)

F8Words in Sch. 4 para. 6(2)(b)(ii) inserted (8.4.2013) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations 2013 (S.I. 2013/388), reg. 2, Sch. para. 40(5)(b)(iii)

F9Words in Sch. 4 para. 6(2)(b)(ii) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I. 2013/591), art. 2(2), Sch. para. 37(5)(b)(iii)

F10Words in Sch. 4 para. 6(4)(a) inserted (8.4.2013) by The Personal Independence Payment (Supplementary Provisions and Consequential Amendments) Regulations 2013 (S.I. 2013/388), reg. 2, Sch. para. 40(5)(b)(iv)

F11Words in Sch. 4 para. 6(4)(a) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I. 2013/591), art. 2(2), Sch. para. 37(5)(b)(iv)