1976 No. 409
The Social Security (Invalid Care Allowance) Regulations 1976
Made
Laid before Parliament
Coming into Operation
The Secretary of State for Social Services, in exercise of the powers conferred upon her by sections 13(4), 37, 40(2), 49, 79(1), 80, 81(1), (2) and (6), 82(1), (5) and (6), 84(1) and (2), 85(1), 86(5) and 119(3) of the Social Security Act 1975, section 36(7) of the National Insurance Act 1965 as continued in force by regulation 2(2) of the Social Security (Graduated Retirement Benefit) Regulations 19751, and of all other powers enabling her in that behalf, and after reference to the National Insurance Advisory Committee, hereby makes the following regulations:
PART IGENERAL
Citation and commencement1
These regulations may be cited as the Social Security (Invalid Care Allowance) Regulations 1976 and shall come into operation on 12th April 1976.
Interpretation2
1
In these regulations, unless the context otherwise requires, “the Act” means the Social Security Act 1975 and other expressions have the same meanings as in the Act.
2
Any reference in these regulations to any provision made by or contained in any enactment or instrument shall, except in so far as the context otherwise requires, be construed as a reference to that provision as amended or extended by any enactment or instrument and as including a reference to any provision which may re-enact or replace, it with or without modification.
3
The rules for the construction of Acts of Parliament contained in the Interpretation Act 1889 shall apply for the purposes of the interpretation of these regulations as they apply for the purposes of the interpretation of an Act of Parliament.
PART IIMISCELLANEOUS PROVISIONS RELATING TO INVALID CARE ALLOWANCE
Prescribed payments out of public funds which constitute the persons in respect of whom they are payable as severely disabled persons3
1
For the purposes of section 37 of the Act (invalid care allowance) the prescribed payments out of public funds which constitute the persons in respect of whom they are payable as severely disabled persons are—
a
a payment under section 61 of the Act (increase of disablement pension where constant attendance needed);
b
a payment such as is referred to in section 7(3)(b) of the Industrial Injuries and Diseases (Old Cases) Act 1975 (increase of an allowance under that Act where the person in respect of whom that allowance is payable requires constant attendance as a result of his disablement);
c
a payment under regulation 44 of the Social Security (Industrial Injuries) (Benefit) Regulations 19752 in respect of the need of constant attendance;
d
a payment by way of an allowance in respect of constant attendance on account of disablement for which a person is in receipt of a war disablement pension,
being a payment the weekly rate of which is not less than the amount specified in paragraph 7(a) of Part V of Schedule 4 to the Act.
2
For the purposes of paragraph (1)(d) of this regulation “war disablement pension” means —
a
retired pay, pension or allowance granted in respect of disablement under powers conferred by or under the Ministry of Pensions Act 1916 the Air Force (Constitution) Act 1917, the Personal Injuries (Emergency Provisions) Act 1939, the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939, the Polish Resettlement Act 1947, the Home Guard Act 1951 or the Ulster Defence Regiment Act 1969;
b
any retired pay or pension to which section 365(1) of the Income and Corporation Taxes Act 1970 applies, not being retired pay, pension or allowance to which sub-paragraph (a) of this paragraph applies; or
c
any payment which the Secretary of State has certified can be accepted as being analogous to any such retired pay, pension or allowance as is referred to in sub-paragraph (a) or (b) of this paragraph.
Circumstances in which persons are or are not to be treated as engaged or regularly and substantially engaged in caring for severely disabled persons4
1
A person shall be treated as engaged and as regularly and substantially engaged in caring for a severely disabled person on every day in a week if, and shall not be treated as engaged or regularly and substantially engaged in caring for a severely disabled person on any day in a week unless, as at that week he is, or is likely to be, engaged and regularly engaged for at least 35 hours a week in caring for that severely disabled person.
2
A week in respect of which a person fails to satisfy the requirements of paragraph (1) of this regulation shall be treated as a week in respect of which that person satisfies those requirements if he establishes—
a
that he has only temporarily ceased to satisfy them; and
b
that (disregarding the provisions of this sub-paragraph) he has satisfied them for at least 14 weeks in the period of 26 weeks ending with that week and would have satisfied them for at least 22 weeks in that period but for the fact that either he or the severely disabled person for whom he has been caring was undergoing medical or other treatment as an in-patient in a hospital or similar institution.
Circumstances in which persons are to be regarded as receiving full-time education5
1
For the purposes of an invalid care allowance, a person shall not be treated as receiving full-time education for any period unless that period is one in respect of which the Secretary of State certifies that he is receiving full-time education by attendance at an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school.
2
In determining the duration of a period of full-time education under paragraph (1) of this regulation, any temporary interruption of that education may be disregarded.
Prescribed relationships between severely disabled persons and persons engaged in caring for them6
1
For the purposes of section 37(1)(c) of the Act (condition of entitlement to an invalid care allowance that the severely disabled person is either such relative of the person caring for him as may be prescribed or a person of any such other description as may be prescribed) the relationship which the severely disabled person is required to bear to the person caring for him is that of—
a
lineal descendant or ascendant in a direct line;
b
husband, wife, step-father, step-mother, step-son, step-daughter, brother, sister, half-brother, half-sister, step-brother, step-sister, aunt, uncle, nephew, niece; or
c
father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law.
2
Any such relationship as is specified in paragraph (1) of this regulation shall be taken to include also any such relationship as would have subsisted if some person born illegitimate had been born legitimate.
Manner of electing the person entitled to an invalid care allowance in respect of a severely disabled person where, but for section 37(7) of the Act, more than one person would be entitled to an invalid care allowance in respect of that severely disabled person7
1
For the purposes of the provision in section 37(7) of the Act which provides that where, apart from that section, two or more persons would be entitled for the same day to an invalid care allowance in respect of the same severely disabled person one of them only shall be entitled, being such one of them as they may jointly elect in the prescribed manner, an election shall be made by giving the Secretary of State a notice in writing signed by the persons who but for the said provision would be entitled to an invalid care allowance in respect of the same severely disabled person specifying one of them as the person to be entitled.
2
An election under paragraph (1) of this regulation shall not be effective to confer entitlement to invalid care allowance either for the day on which the election is made or for any earlier day if such day is one for which an invalid care allowance has been paid in respect of the severely disabled person in question and has not been repaid or recovered.
Circumstances in which a person is or is not to be treated as gainfully employed8
1
For the purposes of section 37(1)(b) of the Act (condition of a person being entitled to an invalid care allowance for any day that he is not gainfully employed) a person shall not be treated as gainfully employed on any day in a week unless his earnings in the immediately preceding week have exceeded £6 and, subject to paragraph (2) of this regulation, shall be treated as gainfully employed on every day in a week if his earnings in the immediately preceding week have exceeded £6.
2
There shall be disregarded for the purposes of paragraph (1) above a person's earnings—
a
for any week which under paragraph (2) of regulation 4 of these regulations is treated as a week in which that person satisfies the requirements of paragraph (1) of that regulation;
b
for any week as an employed earner if that week is one throughout which he is absent from the employment by virtue of which he is an employed earner with the authority of his employer; and
c
in the week immediately preceding the week in respect of which that person (if his earnings in the said immediately preceding week were disregarded) would first become entitled to an invalid care allowance in respect of a severely disabled person.
Conditions relating to residence and presence in Great Britain9
1
Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 37(4) of the Act (person not to be entitled to an invalid care allowance unless he satisfies prescribed conditions as to residence or presence in Great Britain) in relation to any person in respect of any day shall be—
a
that he is ordinarily resident in Great Britain; and
b
that he is present in Great Britain; and
c
that he has been present in Great Britain for a period of, or periods amounting in the aggregate to, not less than 26 weeks in the 12 months immediately preceding that day.
2
For the purposes of paragraph (1)(b) and (c) of this regulation, a person who is absent from Great Britain on any day shall be treated as being present in Great Britain—
a
if his absence is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 4 weeks; or
b
if his absence is temporary and for the specific purpose of caring for the severely disabled person who is also absent from Great Britain and where attendance allowance or a payment specified in regulation 3(1) of these regulations is payable in respect of that disabled person for that day.
3
For the purposes of paragraphs (1)(b) and (c) of this regulation, a person shall be treated as having been present in Great Britain on a day if on that day he is—
a
b
a member of the forces within the meaning of those regulations; or
c
living with such a member of the forces and is that member's spouse, son, daughter, father, father-in-law, mother or mother-in-law.
Circumstances in which a person over pensionable age is to be treated as having been entitled to invalid care allowance immediately before attaining that age10
A person who has attained pensionable age shall for the purposes of section 37(5) of the Act be treated as having been entitled to an invalid care allowance immediately before attaining that age if immediately before attaining it he would have satisfied the conditions for entitlement to that allowance but for the provisions of the Social Security (Overlapping Benefits) Regulations 19757, as amended8
Invalid care allowance for persons over retiring age11
Where a person is entitled to an invalid care allowance immediately before he attains retiring age he shall not be disentitled to that allowance after he attains that age by reason only of the fact that he is not caring for a severely disabled person or no longer satisfies the requirements of section 37(1)(a) or (b) of the Act.
Increase of invalid care allowance for child dependants12
1
For the purposes of increases of invalid care allowance for child dependants under section 49 of the Act, the prescribed circumstances in which a beneficiary is entitled to such an increase for any period shall be as set out in the following paragraphs of this regulation.
2
The weekly rate of an invalid care allowance for any period for which the beneficiary has a family which includes a child or children shall be increased in respect of that child, or each respectively of those children, by the appropriate amount specified in relation to that allowance in column (2) or (3) of Part IV of Schedule 4 to the Act.
3
A child of the family of a woman for the time being residing with the beneficiary is to be treated for the purposes of this regulation as a child of the beneficiary's family if the child—
a
is an illegitimate son or daughter of theirs; or
b
was born not less than 6 months before the day for which the increase provided by paragraph (2) above is claimed and was wholly or mainly maintained by the beneficiary throughout the 6 months ending immediately before that day.
4
Where a person is entitled to receive payment of an amount by way of an increase of an invalid care allowance under the foregoing paragraphs of this regulation, that increase shall not be payable unless one of the following conditions is satisfied—
a
that the child in question is living with the beneficiary; or
b
that the requisite contributions are being made to the cost of providing for the child.
5
The condition specified in paragraph (4)(b) above is to be treated as satisfied if, but only if—
a
such contributions are being made at a weekly rate not less than the amount referred to in paragraph (4) above—
i
by the beneficiary, or
ii
where the beneficiary is one of two spouses living together, by them together; and
b
where an allowance under the Family Allowances Act 1965 is payable in respect of the child as a child of the beneficiary's family, the contributions are over and above those required for the purposes of satisfying section 3(2) of that Act or (as the case may be) the Schedule to that Act, paragraph 1(1) , proviso.
6
Where a person is entitled in respect of a child to a guardian's allowance under section 38 of the Act, the amount (if any) payable to that or any other person by way of invalid care allowance in respect of children of any family shall be such, and such only, as would be payable if the first-mentioned child were not included or treated as included in any family.
7
Any sum or sums paid by a person by way of contribution towards the cost of providing for two or more children included or treated as included in that person's family, shall be treated as such contributions, of such respective amounts equal in the aggregate to the said sum or sums, in respect of those children so as to secure as large a payment as possible by way of invalid care allowance in respect of them.
Increase of invalid care allowance for adult dependants13
1
For the purposes of increases of invalid care allowance for adult dependants under section 49 of the Act, the prescribed circumstances in which a beneficiary is entitled to such an increase for any period shall be as set out in paragraph (2) of this regulation.
2
The weekly rate of an invalid care allowance shall be increased by the amount specified in relation to that allowance in column (4) of Part IV of Schedule 4 to the Act for any period during which the beneficiary is residing with—
a
his wife and she is not engaged in any one or more employments from which her weekly earnings exceed that amount; or
b
some female person (not being a child) who—
i
has the care of a child or children of the beneficiary's family within the meaning of regulation 12 of these regulations being a child or children in respect of whom he is entitled to an increase of an invalid care allowance or would be so entitled but for the provisions of any regulation for the time being in force under the Act relating to overlapping benefits;
ii
is not undergoing imprisonment or detention in legal custody;
iii
is not engaged in any one or more employments (other than her employment by the beneficiary in caring for a child or children of his family) from which her weekly earnings exceed that amount;
iv
is not absent from Great Britain, except for any period during which she is residing with the beneficiary outside Great Britain and for which the beneficiary is entitled to an invalid care allowance.
3
A person who is entitled to an increase of an invalid care allowance under paragraph (2)(a) above shall not be entitled to an increase of that benefit under paragraph (2)(b) above.
Application of the Social Security (General Benefit) Regulations 1974 to invalid care allowance14
The provisions of the Social Security (General Benefit) Regulations 19749, as amended10, specified in column (1) of Schedule 1 to these regulations, the subject matter of which is described in column (2) of that Schedule, shall, with any necessary modifications, apply to invalid care allowance as they apply to invalidity pension.
PART IIICONSEQUENTIAL AMENDMENTS OF REGULATIONS
Amendment of the Social (Overlapping Benefits) Regulations 197515
1
2
In regulation 3 (adjustment of personal benefit under Chapters I and II of Part II of the Act where other personal benefit under those Chapters is payable)—
a
in paragraph
(2)(d) after the words “non-contributory
invalidity pension”
there shall be inserted the words
“or invalid care allowance”
;
b
for paragraph (5) there shall be substituted the following paragraph:—
5
Where a person is entitled to a graduated retirement benefit and a Category D retirement pension, a non-contributory invalidity pension or an invalid care allowance, the Category D retirement pension, the non-contributory invalidity pension or the invalid care allowance, as the case may be, shall be adjusted in accordance with paragraph (4)(a).
3
For regulation 9A (special provision relating to the adjustment of non-contributory invalidity pension) there shall be substituted the following regulation:—
Special provision relating to the adjustment of non-contributory invalidity pension and invalid care allowance9A
In any case where personal benefit or dependency benefit by way of a non-contributory invalidity pension or an invalid care allowance would, in accordance with the provisions of regulations 3, 5, 6 or 7, fall to be adjusted by reference to any other personal benefit or dependency benefit, it shall be reduced by the amount which is, or but for these regulations would be, payable by way of that other benefit both as personal benefit and as dependency benefit, so however that the amount payable by way of a non-contributory invalidity pension or an invalid care allowance and that other benefit shall in no case be less than the sum of the amounts which, but for any adjustment, would have been payable by way of a non-contributory invalidity pension or an invalid care allowance as personal benefit and dependency benefit.
4
In the Schedule (personal benefits which
are required to be adjusted by reference to benefits not under Chapters I and II of Part II of
the Act), in column (1), after the words “Non-contributory invalidity
pension”
in paragraph 1A
there shall be inserted the words “or invalid care allowance”
.
Amendment of Part VI of the Social Security (Determination of Claims and Questions) Regulations 197516
In regulation
31(1)(c) of the Social Security (Determination
of Claims and Questions) Regulations 197513, as amended14, (review of decisions involving payment
or increase of benefit other than industrial injuries benefit) after the words
“attendance allowance,”
and before the words “a
child's special allowance”
there shall be inserted the words
“an invalid care allowance”
.
Amendment of the Social Security (Claims and Payments) Regulations 197517
1
2
In regulation
9 (interchange with claims for other benefits) at the
end of paragraph (5) there
shall be added the words “or an invalid care allowance”
.
3
In regulation 15 (time and manner of payment of certain pensions and allowances)—
a
at the end of paragraph (1) the following sub-paragraph shall be added:—
h
invalid care allowance
b
after paragraph (8) there shall be added the following paragraph:—
8A
Weekly sums on account of an invalid care allowance shall be payable on Mondays, so however that where a person is entitled to that allowance in respect of a severely disabled person by virtue of regulation 3 of the Social Security (Invalid Care Allowance) Regulations 1976 the invalid care allowance shall be payable on Wednesdays.
4
In regulation
17 (time and manner of payment of age addition) in
paragraph (4) for the words “paragraphs (6), (7),
(10), (11) and (13) of regulation 15
”
there shall be substituted
the words “paragraphs
(6), (7), (8A), (10),
(11) and (13) of regulation 15.”
.
5
In Schedule 1 (prescribed times for claiming benefit)—
a
after paragraph 1 in columns (1), (2) and (3) there shall be inserted the following paragraph in the respective columns:—
1A.Invalid care allowance
The period of 3 months from the first day in respect of which the claim is made
Benefit in respect of any period more than 3 months before the date on which the claim is made
b
in paragraph
3 of column (1), for the words “or
non-contributory invalidity pension”
there shall be substituted
the words “, non-contributory invalidity pension or an invalid
care allowance.”
.
6
In Schedule 3 (benefit for which the claim may be treated in the alternative)—
a
in paragraph
3 of column (2), for the words “Sickness
benefit, invalidity benefit, injury benefit, unemployability supplement or
non-contributory invalidity pension”
there shall be substituted
the words “Sickness benefit, invalidity benefit, injury benefit,
unemployability supplement, non-contributory invalidity pension or invalid
care allowance.”
.
b
in paragraph
5 of column (2), for the words “An
increase of sickness benefit, invalidity pension or of non-contributory invalidity
pension”
there shall be substituted the words “An
increase of sickness benefit, invalidity pension, non-contributory invalidity
pension or of invalid care allowance.”
.
Amendment of the National Insurance (Graduated Retirement Benefit and Consequential Provisions) Regulations 196118
1
Regulation
2(3) of the National Insurance (Graduated
Retirement Benefit and Consequential Provisions) Regulations 196117
(single payments of graduated retirement benefit), which as amended by
regulation 2 of the Social Security
(Graduated Retirement Benefit) (No. 2) Regulations 197518
has effect as set out in the Schedule to the said regulations of 1975, shall
be further amended by substituting for the words “or a non-contributory
invalidity pension”
the words “, a non-contributory
invalidity pension or an invalid care allowance”
; and the said
regulation 2(3) as so further amended shall
have effect as set out in Schedule 2
to these regulations.
2
The Social Security (Graduated Retirement Benefit) (No. 2) Regulations 1975 are hereby revoked.
Amendment of the Social Security (Credits) Regulations 197519
The Social Security (Credits) Regulations 197519 shall be amended by the insertion of the following regulation after regulation 7:—
Credits for invalid care allowance7A
1
For the purposes of entitlement to any benefit by virtue of a person's contributions he shall, subject to paragraph (2), be entitled to a Class I credit in respect of each week for any part of which an invalid care allowance is paid to him, or in the case of a widow, would have been so payable but for the provisions of the Social Security (Overlapping Benefits) Regulations 1975, as amended by the Social Security (Invalid Care Allowance) Regulations 1976, requiring adjustment of an invalid care allowance against widow's benefit or benefit by virtue of section 39(4) corresponding to a widowed mother's allowance or a widow's pension.
2
Paragraph (1) shall not apply—
a
to a person in respect of any week where he is entitled to a Class 1 credit under regulation 9 in respect of the same week; or
b
to a woman in respect of any week in any part of which she was a married woman in respect of whom an election made by her under regulations made under section 130(2) had effect.
Amendment of the Social Security Benefit (Persons Abroad) Regulations 197520
In the Social Security Benefit (Persons Abroad) Regulations 197520, after regulation 10A, added to those regulations by regulation 10 of the Mobility Allowance Regulations 197521, there shall be added the following regulation:—
Modification of the Act in relation to invalid care allowance10B
A person shall not be disqualified for receiving an invalid care allowance by reason of being absent from Great Britain.
Amendment of the Social Security (Widow's Benefit and Retirement Pensions) Regulations 197421
In the Social Security (Widow's Benefit and Retirement Pensions) Regulations 197422, as amended23, in regulation 15(1) (age addition for persons not in receipt of a retirement pension) after sub-paragraph (f) there shall be added the following sub-paragraph:—
g
section 37 of the Social Security Act 1975 (invalid care allowance).
SCHEDULE 1PROVISIONS OF THE SOCIAL SECURITY (GENERAL BENEFIT) REGULATIONS 1974 APPLIED TO INVALID CARE ALLOWANCE
Regulation applied | Subject matter |
|---|---|
(1) | (2) |
2 | Increase of benefit for wife. |
5(2) and (3) | Provision as to maintenance. |
8(1) | Contribution towards cost of providing for child. |
9 | Deeming benefit under the Act abated under section 16(1A) of the Supplementary Benefit Act 1966 24 to be a contribution for the maintenance of children or adult dependants. |
11 | Exceptions from disqualification for imprisonment, etc. |
12 | Suspension of payment of benefit during imprisonment, etc. |
13 | Interim payments, arrears and repayments. |
14 | Set-off of benefit against earlier payment of dependency benefit. |
16 | Rounding of sums payable by way of benefit under Part I of the Act. |
SCHEDULE 2REGULATION 2(3) OF THE NATIONAL INSURANCE (GRADUATED RETIREMENT BENEFIT AND CONSEQUENTIAL PROVISIONS) REGULATIONS 1961 AS AMENDED BY THESE REGULATIONS25
(3) The provisions of this regulation shall not apply to a person unless he does not satisfy the conditions for entitlement to a Category C or D retirement pension, a non-contributory invalidity pension or an invalid care allowance and does not satisfy or partially satisfy the contribution conditions for a Category A or B retirement pension and also, in the case of a married woman, her husband is over pensionable age and does not satisfy (or, as the case may be, partially satisfy) any of those conditions.