The Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations (Northern Ireland) 2016

Amendment of the Social Security (Disability Living Allowance) Regulations

4.—(1) The Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992(1) are amended in accordance with paragraphs (2) to (8).

(2) In regulation 1 (citation, commencement and interpretation) after paragraph (3) insert—

“(3A) With effect from 6th December 2018, any reference in these Regulations to—

(a) “the age of 65 years” and “the age of 65” shall be construed as a reference to “pensionable age”; and

(b) “aged 65 or over” and “aged 65 and over” shall be construed as a reference to “of pensionable age”.

(3B) For the purpose of paragraph (3A), “pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 2 to the Pensions (Northern Ireland) Order 1995(2).”.

(3) In regulation 2 (conditions as to residence and presence in Northern Ireland)—

(a) in paragraph (1)(3)—

(i) after “this regulation” insert “ and regulations 2A and 2B”;

(ii) in sub-paragraph (a)(i), for “ordinarily resident in Northern Ireland”, substitute “habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands”; and

(iii) in sub-paragraph (a)(iii), for “26 weeks in the 52”, substitute “104 weeks in the 156”;

(b) in paragraph (2)—

(i) in sub-paragraph (a)(i), for “the Social Security (Contributions) Regulations 1979”, substitute “the Social Security (Contributions) Regulations 2001 (“the 2001 Regulations”)”; and

(ii) in sub-paragraph (a)(ii), for “regulation 80” to the end, substitute “regulation 111 and regulation 115 respectively of the 2001 Regulations;”;

(c) for paragraph (2)(d), substitute—

“or

(d) he is temporarily absent from Northern Ireland and that absence has not lasted for a continuous period exceeding 13 weeks.”;

(d) omit paragraph (2)(e) and the preceding “or”;

(e) after paragraph (2), insert—

“(2A) A person shall be treated as habitually resident in Northern Ireland for the purpose of paragraph (1)(a)(i) where—

(a) he is resident outside Northern Ireland in his capacity as a serving member of the forces and for this purpose “serving member of the forces” has the meaning given in regulation 1(2) of the 2001 Regulations; or

(b) he is living with a person mentioned in sub-paragraph (a) and is the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person.”;

(f) after new paragraph (2A) insert—

“(2B) Where a person is temporarily absent from Northern Ireland, he is treated as present in Northern Ireland for the purposes of paragraph (1)(a)(ii) and (iii) for the first 26 weeks of that absence, where—

(a) this absence is solely in connection with arrangements made for the medical treatment of him for a disease or bodily or mental disablement which commenced before he left Northern Ireland; and

(b) the arrangements referred to in sub-paragraph (a) relate to medical treatment—

(i) outside Northern Ireland,

(ii) during the period whilst he is temporarily absent from Northern Ireland, and

(iii) by, or under the supervision of, a person appropriately qualified to carry out that treatment, and

“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly.”;

(g) after new paragraph (2B) insert—

“(2C) For the purpose of paragraph (2)(d) and (2B) a person is “temporarily absent” if, at the beginning of the period of absence, that absence is unlikely to exceed 52 weeks.”;

(h) in paragraphs (4) and (5) for “26” substitute “104”; and

(i) after paragraph (5) insert—

“(6) Paragraph (1) shall apply in the case of a child who is over the age of 6 months but who has not exceeded the age of 36 months as if in sub-paragraph (a)(iii) for the reference to 104 weeks there were substituted a reference to 26 weeks.”.

(4) After regulation 2 insert—

“Persons residing in Northern Ireland to whom a relevant EU Regulation applies

2A.— (1) Regulation 2(1)(a)(iii) shall not apply where on any day—

(a) the person is habitually resident in Northern Ireland;

(b) a relevant EU Regulation applies; and

(c) the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.

(2) For the purposes of paragraph (1)(b) and regulation 2B, “relevant EU Regulation” has the meaning given by Article 89(2) of the Welfare Reform (Northern Ireland) Order 2015.

Persons residing in an EEA state other than the United Kingdom or in Switzerland to whom a relevant EU Regulation applies

2B.   Regulation 2(1)(a)(i) to (iii) shall not apply in relation to the care component where on any day—

(a) the person is habitually resident in—

(i) an EEA state other than the United Kingdom; or

(ii) Switzerland;

(b) a relevant EU Regulation applies; and

(c) the person can demonstrate a genuine and sufficient link to the United Kingdom social security system.”.

(5) In regulation 9(4) (persons in care homes)—

(a) in paragraph (2)—

(i) omit “or” at the end of sub-paragraph (b);

(ii) after sub-paragraph (b) insert—

“(ba) section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002; or”;

(b) in paragraph (3) omit sub-paragraph (b); and

(c) in paragraph (6) omit sub-paragraph (f) and the preceding “or”.

(6) In regulation 10A(5) (adjustment of allowance where medical expenses are paid from public funds under war pensions instruments)—

(a) in paragraph (1)—

(i) before the definition of “article 25B”, insert—

““article 21” means article 21 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 (medical expenses);”;

(ii) omit the definition of “article 26”; and

(iii) in the definition of “relevant accommodation” for “article 25B or article 26”, substitute “article 21 or article 25B”; and

(b) in paragraph (3) for “article 25B or article 26” in both places substitute “article 21 or article 25B”.

(7) In regulation 12B(6) (exemption from regulation 12A)—

(a) in paragraph (3) for “(1) and (4)”, substitute “(1), (4), (7), (8) and (8A)”; and

(b) for paragraphs (7) to (9) substitute—

“(7) Subject to regulation 12C, where on 20th June 2016, paragraph (10) applies to a person and a Motability agreement entered into by or on behalf of that person is in force, regulation 12A shall, for the period following that referred to in paragraph (1)(a) or, as the case may be, paragraph (1)(b), continue not to apply to that person for the period that terminates in accordance with paragraph (8).

(8) The period referred to in paragraph (7) terminates—

(a) on the first day after 20th June 2016 on which paragraph (10) first ceases to apply to the person for more than 28 consecutive days;

(b) in accordance with paragraph (8A); or

(c) on 20th June 2019,

whichever is the earliest.

(8A) The period referred to in paragraph (8)(b) terminates—

(a) in the case of the hire of a vehicle—

(i) where the vehicle is returned to the owner before the expiration of the current term of hire, on the date that the vehicle is returned to the owner;

(ii) where the vehicle is returned to the owner at the expiration of the current term of hire, on expiry of the current term of hire;

(iii) where the vehicle is retained with the owner’s consent by or on behalf of the person after the expiration of the current term of hire, on expiry of the current term of hire;

(iv) where the vehicle is retained otherwise than with the owner’s consent by or on behalf of the person after the expiration of the current term of hire, on expiry of the current term of hire; or

(v) where the vehicle is retained otherwise than with the owner’s consent by or on behalf of the person after the date of an early termination of the current term of hire, on the date of that early termination; and

(b) in the case of a hire-purchase agreement—

(i) on the purchase of the vehicle;

(ii) where the vehicle is returned to the owner under the terms of the agreement before the completion of the purchase, on the date that the vehicle is returned to the owner; or

(iii) where the vehicle is repossessed by the owner under the terms of the agreement before the completion of the purchase, on the date of repossession.

(8B) In paragraph (8A)(a) the “current term of hire” means the last term of hire that was agreed on or before 20th June 2016 but does not include any extension of that last term of hire after 20th June 2016.”.

(8) In paragraph 4(1)(b) of Schedule 1 (persons aged 65 and over), for “section 5(2)(a) of, and Schedule 2 to, the National Health Service Act 1977 or section 46(1) of the National Health Service (Scotland) Act 1978”, substitute “section 46(1) of the National Health Service (Scotland) Act 1978(7), paragraph 9 of Schedule 1 to the National Health Service Act 2006(8) or paragraph 9 of Schedule 1 to the National Health Service (Wales) Act 2006(9)”.

(1)

S.R. 1992 No. 32. Relevant amending Rules are S.R. 1993 No. 340, S.R. 1994 No. 263, S.R. 1996 Nos. 11, 225 and 290, S.R. 1997 No. 69, S.R. 1999 No. 428 (C. 32), S.R. 2000 No. 71 and S.R. 2007 No. 431.

(2)

S.I. 1995/3213 (N.I. 22). Paragraph 1 was amended by paragraph 28 of Schedule 2 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.)), paragraph 8 of Schedule 3 to the Welfare Reform Act (Northern Ireland) 2007, paragraph 4 of Schedule 3 to the Pensions Act (Northern Ireland) 2008, section 1 of the Pensions Act (Northern Ireland) 2012 (c. 3 (N.I.)) and section 26 of the Pensions Act (Northern Ireland) 2015 (c. 5 (N.I.)).

(3)

Paragraph (1) was amended by regulation 2(3)(a) of S.R. 1993 No. 340, regulation 9(a) of S.R. 1996 No. 11, regulation 3(2) of S.R. 1997 No. 69 and regulation 9(a) of S.R. 2000 No. 71.

(4)

Regulation 9 was substituted by regulation 3(2) of S.R. 2007 No. 431.

(5)

Regulation 10A was inserted by regulation 3(4) of S.R. 1994 No. 263.

(6)

Regulation 12B was inserted by regulation 4(3) of S.R. 1996 No. 225 and amended by regulation 2 of S.R. 1996 No. 290 and Article 7(4) of S.R. 1999 No. 428 (C. 32).

(7)

1978 c. 29.

(8)

2006 c. 41.

(9)

2006 c. 42.