PART IIMISCELLANEOUS PROVISIONS RELATING TO SEVERE DISABLEMENT ALLOWANCE

Conditions relating to residence and presence3

F71

Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 36(4)(c) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that—

a

on that day—

i

he is ordinarily resident in Great Britain, and

ib

F31he 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 severe disablement allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, and

ii

he is present in Great Britain, and

iii

he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; F35...

F34b

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F361A

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F321B

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F62

Section 36 of the Act shall be modified by adding after subsection (4) the following subsection–

4ZA

In determining whether the person satisfies any conditions prescribed under paragraph (c) of subsection (4) above–

a

any period during which the person is absent from Great Britain by reason only of the fact that–

i

he is abroad in his capacity as a serving member of the forces, or

ii

he is living with a person mentioned in sub-paragraph (i) and is the spouse, son, daughter, father, father-in-law, mother or mother-inlaw of that person,

shall be treated as a period during which the person was resident in Great Britain; and

b

any day on which the person is absent from Great Britain by reason only of the fact that on that day–

i

he is abroad in his capacity as a serving member of the forces, or

ii

he is living with a person mentioned in sub-paragraph (i) and is the spouse, son, daughter, father, father-in-law, mother or mother-inlaw of that person, or

iii

he is in employment prescribed for the purposes of section 132 of the Act in connection with continental shelf operations, or

iv

he is abroad in his capacity as an airman or mariner within the meaning of regulation 81 and regulation 86 respectively of the Social Security (Contributions) Regulations 1979

shall be treated as a day on which the person is present in Great Britain; and for the purposes of this provision, the expression “serving member of the forces” has the same meaning as in regulation 1(2) of the Social Security (Contributions) Regulations 1979.

3

Where a person has been entitled to a severe disablement allowance or a non-contributory invalidity pension for any day, the conditions set out in paragraph (1) of this regulation shall not apply to that person in respect of any subsequent day of incapacity for work falling within the same F14period of incapacity for work.

Circumstances in which a person over F12the age of 65 is to be treated as having been entitled to a severe disablement allowance immediately before attaining that age4

A person who has attained F12the age of 65 shall for the purposes of section 36(4)(d) of the Act be treated as having been entitled to a severe disablement allowance immediately before attaining that age if immediately before attaining it—

a

he would have satisfied the conditions for entitlement to that allowance or to a non-contributory invalidity pension but for the provisions of the Social Security (Overlapping Benefits) Regulations 1979, or

b

he was entitled to a non-contributory invalidity pension.

F10Women aged 65 before 28th October 19944A

1

A woman shall be entitled to a severe disablement 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 a severe disablement allowance or, if she attained that age before 29th November 1984, to a non-contributory invalidity pension (whether or not she made a claim) but for—

i

the condition, which applied prior to 28th October 1994, in section 68(4)(d) of the Contributions and Benefits Act (exclusion of persons who had attained pensionable age and had not been entitled to a severe disablement allowance immediately before attaining that age); or

ii

the corresponding condition in respect of non-contributory invalidity pension; and

c

she satisfies the requirements for entitlement to a severe disablement allowance apart from the conditions in section 68(2), (3) and (4)(d) of the Contributions and Benefits Act.

2

For the purposes of paragraph (1)(b) there shall be excluded from the requirements for entitlement to a non-contributory invalidity pension the condition that the claimant, if she were married or cohabiting with a man, be incapable of performing normal household duties.

Severe disablement allowance for persons over F13the age of 655

A person who—

a

has attained F13the age of 65; and

b

was entitled to a severe disablement allowance immediately before he attained that age,

shall continue to be so entitled notwithstanding that he does not satisfy the conditions specified in subsection (2) or (3) of section 36 of the Act if he satisfies the other requirements for entitlement to such an allowance.

F11Men aged 65 before 28th October 19945A

A man who—

a

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

b

was entitled to a severe disablement allowance or a non-contributory invalidity pension immediately before he attained that age,

shall be entitled to a severe disablement allowance notwithstanding that he ceased to satisfy the conditions specified in section 68(2) or (3) of the Contributions and Benefits Act after he attained that age, if he satisfies the other requirements for entitlement to that allowance.

C1Modification of section 36(2) and (3) of the Act in relation to persons who have previously been entitled to a severe disablement allowance6

A person who has previously been entitled to a severe disablement allowance for any day shall be entitled to such an allowance on the relevant day notwithstanding that he does not satisfy—

a

in the case of a person who on the earlier day satisfied the conditions specified in section 36(2) of the Act, the conditions specified in subsection (2)(b) of that section; or

b

in the case of a person who on the earlier day satisfied the conditions specified in section 36(3) of the Act, the conditions specified in subsection (3)(b) of that section,

if the relevant day and the earlier day fall within the same F15period of incapacity for work and if he satisfies the other requirements for entitlement to such an allowance.

Days for which persons are to be regarded as incapable of work for the purposes of severe disablement allowance7

F161

Subject to paragraph (3), for the purposes of severe disablement allowance a person shall not be treated as incapable of work for any day which is not to be treated as a day of incapacity for work under regulation 4(1)(c) (Persons attending training courses) of the Social Security (Incapacity Benefit) Regulations 1994.

F171A

Regulation 5 (night workers) of the Social Security (Incapacity Benefit) Regulations 1994 shall apply for the purposes of severe disablement allowance as it applies for the purposes of incapacity benefit.

F261B

For the purposes of severe disablement allowance, a person shall be treated as incapable of work on any day in a period, consisting of a cumulative number of days of incapacity for work not exceeding 91 days in total for which he makes a claim for severe disablement allowance, beginning within a linking term and ending on a day not later than 13 weeks from the end of that linking term in respect of which he has been determined to be a person who is a welfare to work beneficiary; and in this paragraph “linking term” and “welfare to work beneficiary” have the meanings given in regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995 (welfare to work beneficiary).

F331C

For the purposes of severe disablement allowance, a person shall be treated as incapable of work on any day where he is treated as incapable of work under regulation 10A of the Social Security (Incapacity for Work) (General) Regulations 1995 (certain persons participating in approved work to be treated as incapable of work).

C2F182

In determining for the purposes of section 68(2) or (3) of the Contributions and Benefits Act whether a person has been incapable of work for a period of not less than 196 consecutive days, a day shall not be treated as a day on which that person was incapable of work if that day was a day on which he was undergoing imprisonment or detention in legal custody and which was part of a period of imprisonment or detention of more than 6 weeks.

3

A person who was incapable of work—

a

for not less than 196 consecutive days commencing on or before he attained the age of 20, and

b

for not less than 196 consecutive days immediately preceding the relevant day,

but who was capable of work for a period which does not, or for periods which in the aggregate do not, exceed 182 days where that period or those periods occurred

i

after the 196 days mentioned in sub-paragraph (a) but before the 196 days mentioned in sub-paragraph (b), and

ii

after he attained the age of 15 years 24 weeks,

C3shall be treated for the purposes of section 36(2)(b) of the Act, and for that purpose only, as incapable of work on each day within that period or those periods.

Treatment of duties as a councillor as a day of incapacity for workF197A

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Circumstances in which a person is to be treated as receiving full-time education8

1

A person shall be treated as receiving full-time education for the purposes of severe disablement allowance for any period during which—

a

he is not less than 16 or more than 19 years of age; and

b

he attends for not less than 21 hours a week a course of education; so, however, that in calculating the number of hours a week during which he attends that course no account shall be taken of any instruction or tuition which is not suitable for persons of the same age and sex who do not suffer from a physical or mental disability.

2

In determining the duration of a period of full-time education under paragraph (1), any temporary interruption of that education may be disregarded.

3

A person over the age of 19 shall be treated as not receiving full-time education.

C4F5Severe disablement allowance for persons who are councillors8A

Where the amount of a councillor's allowance to which a person is entitled in respect of any week exceeds the sum for the time being specified in F20regulation 8 of the Social Security (Incapacity Benefit) Regulations 1994, then an amount equal to the excess shall be deducted from the amount of any severe disablement allowance to which he is entitled in respect of that week, and only the balance remaining (if any) shall be payable.

Disqualification for severe disablement allowanceF219

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Adjudication10

1

For the purposes of section 36(5) (extent of disablement) of the Act, the evidence required that on any day a person suffers or suffered from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts or amounted to not less than 80 per cent. shall consist of—

a

F22evidence that that day falls within F8a period when the person is or was entitled to attendance allowance under section 35(2) of the Act;

b

F23evidence that on that day he is or was entitled to—

F9i

a mobility allowance under section 37A of the Act or the mobility component of disability living allowance at the higher rate prescribed in accordance with section 37ZC(10) of the Act or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 37ZB(3) of the Act; or

ii

a mobility supplement under article 26A of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 19833 or under article 25A of the Personal Injuries (Civilians) Scheme 1983;

F23evidence that on that day he is or was entitled to the care component of disability living allowance at the highest rate prescribed in accordance with section 72(3) and (4) (a) of the Contributions and Benefits Act;

c

evidence that the extent of his disablement on that day has been assessed for the purposes of section 57 of the Act as not less than 80 per cent;

d

evidence that that day is or was or is or was later than one in respect of which it has been determined under the Vaccine Damage Payments Act 1979 that he is or was severely disabled as a result of a vaccination against any of the diseases to which that Act applies;

e

evidence that the degree of his disablement on that day has been assessed for the purposes of Part III of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 or of Part III of the Personal Injuries (Civilians) Scheme 1983 as not less than 80 per cent;

f

evidence that on that day he is or was registered as a blind F24or partially sighted person in a register compiled under section 29 of the National Assistance Act 1948;

F2ff

evidence that he has been certified as blind F25or partially sighted and that in consequence he is or was registered on that day as blind F25or partially sighted in a register maintained by or on behalf of a regional or islands council;

g

evidence that on that day the Secretary of State provides or provided him with an invalid carriage or other vehicle under section 5(2) of the National Health Service Act 1997 or makes or made payments by way of grant to him under paragraph 2 of Schedule 2 to that Act;

F3gg

evidence that on that day the Secretary of State provides or provided him with an invalid carriage or other vehicle under section 46 of the National Health Service (Scotland) Act 1978or makes or made payments by way of grant to him under that section;

h

evidence that the extent of his disablement on that day has been assessed for the purposes of section 36 of the Act as not less than 80 per cent; or

F27hh

subject to paragraph (2B) and during the period referred to in regulation 7(1B), evidence that he has been determined on that day to be a welfare to work beneficiary in accordance with regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995;

i

such other evidence as satisfies F29the Secretary of State or, as the case may be, an appeal tribunal constituted under Chapter I of Part I of the Social Security Act 1998 that he so suffers or suffered.

2

For the purposes of sub-paragraphs (a) to (h) of paragraph (1) an official record of the F4Department of Social Security of any fact specified in those sub-paragraphs shall be sufficient evidence of that fact.

F12A

For the purposes of paragraphs (1)(g) and (1)(gg) “invalid carriage or other vehicle” means a vehicle propelled by petrol engine or by electric power supplied for use on the road and to be controlled by the occupant.

F282B

Paragraph (1)(hh) shall not apply to a welfare to work beneficiary who, in his immediate past period of incapacity for work within the meaning of regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995, was not assessed to be disabled in accordance with section 68(6) of the Contributions and Benefits Act.

F303

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F304

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