The Social Security (Invalid Care Allowance) Regulations 1976

PART IIMISCELLANEOUS PROVISIONS RELATING TO [F1CARER'S ALLOWANCE]

Textual Amendments

Prescribed payments out of public funds which constitute the persons in respect of whom they are payable as severely disabled persons

3.—(1) For the purposes of [F2section 70 of the Contributions and Benefits Act] ([F3carer’s 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 [F4section 104 of the Contributions and Benefits 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 1975(1) 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 [F5paragraph 2(a) of Part V of Schedule 4 to the Contributions and Benefits 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.

Textual Amendments

Circumstances in which persons are or are not to be treated as engaged or regularly and substantially engaged in caring for severely disabled persons

4.—(1) [F6Subject to paragraph (1A) of this regulation,] 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.

[F7(1A) A person who is caring for two or more severely disabled persons in a week shall be treated as engaged and regularly and substantially engaged in caring for a severely disabled person only where he is engaged and regularly engaged for at least 35 hours in that week in caring for any one severely disabled person, considered without reference to any other severely disabled person for whom he is caring.]

(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; [F8 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.]

Textual Amendments

F8Words in reg. 4(2) omitted (temp.) (E.W.) (30.3.2020) by virtue of The Social Security (Coronavirus) (Further Measures) Regulations 2020 (S.I. 2020/371), regs. 1(1), 9(2) (with reg. 10(2)) (as amended; (12.5.2021) by reg. 3 S.I. 2021/476); and words in reg. 4(2) omitted (temp.) (S.) (3.4.2020) by virtue of The Carers Allowance (Coronavirus) (Breaks in Care) (Scotland) Regulations 2020 (S.S.I. 2020/117), regs. 1(1), 2 (with reg. 3) (as amended; (12.5.2021) by reg. 2(2) S.S.I. 2021/140)

Modifications etc. (not altering text)

C1Reg. 4(2)(b) modified by S.S.I. 2020/117, reg. 4(2) (as inserted (S.) (3.12.2020) by The Carer’s Allowance (Coronavirus) (Breaks in Care) (Scotland) Amendment Regulations 2020 (S.S.I. 2020/350), regs. 1(1), 2(3))

Circumstances in which persons are to be regarded as receiving full-time education

[F95.—(1) For the purposes of [F10section 70(3) of the Contributions and Benefits Act], a person shall be treated as receiving full-time education for any period during which he attends a course of education at a university, college, school or other educational establishment for twenty-one hours or more a week.

(2) In calculating the hours of attendance under paragraph (1) of this regulation–

(a)there shall be included the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course; and

(b)there shall be excluded any time occupied by meal breaks or spent on unsuper-vised study, whether undertaken on or off the premises of the educational establishment.

(3) In determining the duration of a period of full-time education under paragraph (1) of this regulation, a person who has started on a course of education shall be treated as attending it for the usual number of hours per week throughout any vacation or any temporary interruption of his attendance until the end of the course or such earlier date as he abandons it or is dismissed from it.]

Textual Amendments

[F11Severely disabled persons prescribed for the purposes of [F12section 70(1)(c) of the Contributions and Benefits Act]

6.  For the purposes of [F13section 70(1)(c) of the Contributions and Benefits Act] (condition of entitlement to [F14a carer’s 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) where a severely disabled person is being cared for by another person, that disabled person shall be a prescribed person for the purposes of that section, whether he is related to the person caring for him or not.]

Textual Amendments

[F15manner of electing the person entitled to carer’s allowance in respect of a severely disabled person where more than one person would be entitled][F16manner of electing the person entitled to a carer’s allowance in respect of a severely disabled person for the purposes of section 70 of the Contributions and Benefits Act]

7.—(1) For the purposes of the provision in [F17[F18section 70(7ZA)] of the Contributions and Benefits Act] which provides that where, apart from that section, two or more persons would [F19have a relevant entitlement for the same day] in respect of the same severely disabled person one of them only [F20shall have that entitlement], 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 [F21have a relevant entitlement] in respect of the same severely disabled person specifying one of them as the person [F22to have that entitlement].

[F23(1A) For the purposes of section 70(7ZC) of the Contributions and Benefits Act which provides that where, apart from that section, one person (A) would have an entitlement mentioned in subsection (7ZB) and another person (B) would have an entitlement to carer’s allowance for the same day in respect of the same severely disabled person, A and B may jointly elect in the prescribed manner which of them shall have such entitlement, an election shall be made by giving the Scottish Ministers a notice in writing signed by both A and B specifying that B shall have entitlement to carer’s allowance and A shall not have an entitlement mentioned in subsection (7ZB).

(1B) For the purposes of section 70(7ZE) of the Contributions and Benefits Act which provides that where, apart from that section, one person (A) has, or would have an entitlement to universal credit carer element and another person (B) would have an entitlement to carer’s allowance for the same day in respect of the same severely disabled person, A and B may jointly elect in the prescribed manner which of them shall have such entitlement, an election shall be made by giving the Scottish Ministers a notice in writing signed by both A and B specifying that B shall have an entitlement to carer’s allowance and A shall not have entitlement to universal credit carer element.]

[F24(1C) For the purposes of section 70(7ZB) and (7ZC) of the Contributions and Benefits Act, which provides that where, apart from those subsections, one person (A) would have an entitlement mentioned in subsection (7ZB) and another person (B) would have a relevant entitlement for the same day in respect of the same severely disabled person, persons A and B may jointly elect in the prescribed manner that B shall have the relevant entitlement and that A shall not have an entitlement mentioned in subsection (7ZB), an election shall be made by giving the Secretary of State a notice in writing signed by both A and B specifying that B shall have the relevant entitlement and A shall not have an entitlement mentioned in subsection (7ZB).]

(2) An election under [F25paragraphs (1), (1A) or (1B)][F26paragraph (1) or (1C] of this regulation shall not be effective to confer [F27a relevant entitlement] either for the day on which the election is made or for any earlier day if such day is one for which [F28a carer’s allowance [F29, carer support payment] or the carer element of universal credit] has been paid in respect of the severely disabled person in question and has not been repaid or recovered.

[F30(3) In paragraph (2) “the carer element of universal credit” means an amount included in an award of universal credit in respect of the fact that a person has regular and substantial caring responsibilities for a severely disabled person.]

[F31(4) In paragraph (2), “carer support payment” means a payment made under the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023.]

[F32(5) In paragraph (2), “carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023.]

Textual Amendments

F19Words in reg. 7(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(2)(a)

F20Words in reg. 7(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(2)(b)

F21Words in reg. 7(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(2)(c)

F22Words in reg. 7(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(2)(d)

F27Words in reg. 7(2) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(3)(a)

F28Words in reg. 7(2) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(3)(b)

F30Reg. 7(3) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Universal Credit and Miscellaneous Amendments Regulations 2015 (S.I. 2015/1754), regs. 1(1), 12(4)

Circumstances in which a person is or is not to be treated as gainfully employed

8.—(1) For the purposes of [F33section 70(1)(b) of the Contributions and Benefits Act] (condition of a person being entitled to [F34a carer’s 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 [F35£151] 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 [F35£151].

(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; F36...

F37(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F38(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The Social Security Benefit (Computation of Earnings) Regulations 1974(2), as amended(3), except regulations 5 to 7 thereof, shall apply in relation to invalid care allowance as they apply in relation to invalidity pension.

Textual Amendments

Conditions relating to residence and presence in Great Britain

9.—(1) Subject to the following provisions of this regulation [F39and regulations [F409A, 9B and 9C]], the prescribed conditions for the purposes of [F41section 70(4) of the Contributions and Benefits Act] (person not to be entitled to [F42a carer’s 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 [F43habitually] resident in [F44the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands]; and

[F45(ia)he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to [F42a carer’s allowance] by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, 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 [F46104] weeks in the [F47156 weeks] immediately preceding that day.

F48(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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

[F49(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 any of the following is payable in respect of that disabled person for that day—

(i)attendance allowance;

(ii)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;

(iii)the daily living component of personal independence payment at the standard or enhanced rate prescribed in accordance with section 78(3) of the Welfare Reform Act 2012; F50...

[F51(iiia)armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011; [F52or]]

(iv)a payment specified in regulation 3(1) of these Regulations.]

[F53(v)the care component of child disability payment at the middle or highest rate in accordance with regulation 11 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021, or

(vi)the daily living component of adult disability payment at the standard or enhanced rate in accordance with regulation 5 of the Disability Assistance for Working Age People (Scotland) Regulations 2022]

[F54(3) Notwithstanding that on any day a person is absent from Great Britain, he shall be treated as though he were—

(a)habitually resident and present in Great Britain for the purposes of paragraphs (1)(a) to (c) if—

(i)his absence is by reason only of the fact that on that day he is abroad 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 Social Security (Contributions) Regulations 2001 (“the 2001 Regulations”); or

(ii)he is living with a person mentioned in sub-paragraph (a)(i) 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; and

(b)present in Great Britain for the purposes of paragraph (1)(b) and (c) if his absence is by reason only of the fact that on that day he is—

(i)abroad in his capacity as an airman within the meaning of regulation 111 of the 2001 Regulations or a mariner within the meaning of regulation 115 of those Regulations; or

(ii)in prescribed employment in connection with continental shelf operations within the meaning of regulation 114(1) of those Regulations.]

Textual Amendments

F43Word in reg. 9(1)(a) substituted (with application in accordance with reg. 1(3)(4) of the amending S.I.) by The Social Security (Disability Living Allowance, Attendance Allowance and Carer's Allowance) (Amendment) Regulations 2013 (S.I. 2013/389), regs. 1(2), 2(2)(b)(i)

F44Words in reg. 9(1)(a) substituted (with application in accordance with reg. 1(3)(4) of the amending S.I.) by The Social Security (Disability Living Allowance, Attendance Allowance and Carer's Allowance) (Amendment) Regulations 2013 (S.I. 2013/389), regs. 1(2), 2(2)(b)(ii)

F46Word in reg. 9(1)(c) substituted (with application in accordance with reg. 1(3)(5) of the amending S.I.) by The Social Security (Disability Living Allowance, Attendance Allowance and Carer's Allowance) (Amendment) Regulations 2013 (S.I. 2013/389), regs. 1(2), 2(2)(c)(i)

F47Words in reg. 9(1)(c) substituted (with application in accordance with reg. 1(3)(5) of the amending S.I.) by The Social Security (Disability Living Allowance, Attendance Allowance and Carer's Allowance) (Amendment) Regulations 2013 (S.I. 2013/389), regs. 1(2), 2(2)(c)(ii)

[F55Persons residing in Great Britain to whom a relevant EU Regulation applies

9A.—(1) Regulation 9(1)(c) shall not apply where on any day—

(a)the person is habitually resident in Great Britain;

(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 9B, “relevant EU Regulation” has the meaning given by section 84(2) of the Welfare Reform Act 2012.]

Textual Amendments

[F55Persons residing in an EEA state F56... or in Switzerland to whom a relevant EU Regulation applies

9B.  Regulation 9(1)(a) to (c) shall not apply where on any day—

(a)the person is habitually resident in—

(i)an EEA stateF57...; 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.]

Textual Amendments

[F58[F59Refugees and certain persons with leave to enter and remain in the United Kingdom]E+W+S

9C.—(1) Regulation 9(1)(c) shall not apply where the person has—

(a)been granted refugee status or humanitarian protection under the immigration rules; F60...

(b)leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules.

[F61(c)leave to enter or remain in the United Kingdom granted under the immigration rules by virtue of—

(i)the Afghan Relocations and Assistance Policy, or

(ii)the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme),

(d)been granted discretionary leave outside the immigration rules as a dependant of a person referred to in sub-paragraph (c), F62...

(e)leave granted under the Afghan Citizens Resettlement Scheme][F63; [F64...]]

(f)[F65leave to enter or remain in the United Kingdom granted under or outside the immigration rules [F66, a right][F67a right] of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 [F68or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,] [F69, or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act] where the person—

(i)was residing in Ukraine immediately before 1st January 2022; and

(ii)left Ukraine in connection with the Russian invasion which took place on 24th February 2022][F70; [F71...]

(g)leave to enter or remain in the United Kingdom granted under or outside the immigration rules, a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the person—

(i)was residing in Sudan before 15th April 2023; and

(ii)left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan][F72, or

(h)leave to enter or remain in the United Kingdom granted under or outside the immigration rules, a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act, where the person—

(i)was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023, and

(ii)left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack]

[F73(1A) Regulation 9(1)(a) shall not apply where [F74any sub-paragraph in paragraph (1)] applies to the person.]

[F75(2) For the purposes of this regulation “immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971.]

[F75(2) For the purposes of this regulation—

(a)“immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971,

(b)“the Afghan Citizens Resettlement Scheme” means the scheme announced by the United Kingdom Government on 18 August 2021.]]

Textual Amendments

Circumstances in which a person over pensionable age is to be treated as having been entitled to invalid care allowance immediately before attaining that age

F7610.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F77Women aged 65 before 28th October 1994

10A.  A woman shall be entitled to [F78a carer’s allowance] if—

(a)she attained the age of 65 before 28th October 1994;

(b)immediately before attaining the age of 65 she would have satisfied the requirements for entitlement to [F78a carer’s allowance], whether or not she made a claim, but for the condition, which applied prior to 28th October 1994, in section 70(5) of the Contributions and Benefits Act(exclusion of persons who had attained pensionable age and had not been entitled to that allowance immediately before attaining that age); and

(c)she satisfies the requirements for entitlement to [F78a carer’s allowance] apart from the conditions in section 70(1)(a) and (b) F79... of the Contributions and Benefits Act.]

Textual Amendments

Invalid care allowance for persons over retiring age

F8011.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F81Men aged 65 before 28th October 1994

11A.  A man who—

(a)attained the age of 65 before 28th October 1994; and

(b)was entitled to [F82a carer’s allowance] immediately before he attained that age,

shall be entitled to that allowance notwithstanding that, after he attained that age, he was not caring for a severely disabled person or no longer satisfied the requirements of section 70(1)(a) or (b) of the Contributions and Benefits Act, if he satisfies the other requirements for entitlement to that allowance.]

Textual Amendments

Increase of invalid care allowance for child dependants

F8312.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Increase of invalid care allowance for adult dependants

F8413.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Application of [F85the Social Security (General Benefit) Regulations 1982] to [F86carer’s allowance]

14.  The provisions of [F87the Social Security (General Benefit) Regulations 1982] (4), 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 [F86carer’s allowance] as they apply to [F87incapacity benefit].

Textual Amendments

(1)

(1975 I, p. 1979).

(2)

(1974 III, p. 7017).

(3)

There is no amendment relevant for the purposes of this regulation.

(4)

There is no amendment which relates expressly to the subject matter of these Regulations.