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The Social Security (Disability Living Allowance) Regulations 1991

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PART IE+W+S INTRODUCTION

Citation, commencement and interpretationE+W+S

1.—(1) These Regulations may be cited as the Social Security (Disability Living Allowance) Regulations 1991 and shall come into force on 6th April 1992.

(2) In these Regulations–

  • [F1“the Act” means the Social Security Contributions and Benefits Act 1992]

  • [F2“the Administration Act” means the Social Security Administration Act 1992;]

  • [F3“the 1998 Act” means the Social Security Act 1998]

  • “the NHS Act of 1978” means the National Health Service (Scotland) Act 1978 F4 ;

  • [F5 “the NHS Act of 2006” means the National Health Service Act 2006; ]

  • [F5 “the NHS (Wales) Act of 2006” means the National Health Service (Wales) Act 2006 ]

  • [F6“adjudicating authority” means, as the case may require, the Secretary of State, [F7the First-tier Tribunal or the Upper Tribunal];]

  • “care component” means the care component of a disability living allowance;

  • [F8“child disability payment” has the meaning given in regulation 2 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021;]

  • “mobility component” means the mobility component of a disability living allowance;

  • “terminally ill” shall be construed in accordance with [F9 section 66(2) of the Act ] F10 .

(3) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation or Schedule bearing that number in these Regulations and any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph of that regulation or Schedule bearing that number.

[F11(4) With effect from 6th December 2018, any reference in these Regulations to—

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

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

(c) “his 65 th birthday” shall be construed as a reference to “the day on which he attained pensionable age”.

(5) For the purpose of paragraph (4), “pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995.]

Textual Amendments

F10 Section 35(2C) was inserted by the Social Security Act 1990 (c.27) , section 1(1) .

[F12Disapplication of section 1(1A) of the Administration ActE+W+S

1A.  Section 1(1A) of the Administration Act (requirement to state national insurance number) shall not apply—

(a)to a person under the age of 16;

(b)to any claim for disability living allowance made or treated as made before 9th February 1998.]

Textual Amendments

PART IIE+W+S GENERAL

Conditions as to residence and presence in Great BritainE+W+S

2.—(1) Subject to the following provisions of this regulation[F13and regulations [F142A, 2B and 2C]], the prescribed conditions for the purposes of [F15section 71](6) 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 [F16habitually] resident in [F17the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands]; and

[F18(ib)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 disability living 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 [F19104] weeks in the [F20156] weeks immediately preceding that day; F21...

F22(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F23(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F24(1ZA) A person to whom regulation 36(1) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021 applies shall be treated for the period set out in that regulation as though he does not satisfy the condition in paragraph (1)(a)(i) of this regulation.]

[F25(1ZB) A person to whom regulation 53(1) of the Disability Assistance for Working Age People (Scotland) Regulations 2022 applies shall be treated for the period set out in that regulation as though he does not satisfy the condition in paragraph (1)(a)(i) of this regulation.]

(2) For the purposes of paragraph (1)(a)(ii) and (iii), notwithstanding that on any day a person is absent from Great Britain, he shall be treated as though he was present in Great Britain if his absence is by reason only of the fact that on that day–

(a)he is abroad in his capacity as–

(i)a serving member of the forces,

(ii) an airman or mariner within the meaning of regulations [F26111 and 115] respectively of the Social Security (Contributions) Regulations [F262001]F27,

and for the purpose of this provision, the expression “serving members of the forces” has the same meaning as in regulation 1(2) of the Regulations of [F282001]; or

(b) he is in employment prescribed for the purposes of [F29section 120] of the Act in connection with continental shelf operations F30; or

(c)he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, [F31civil partner,] son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person; or

[F32(d)he is temporarily absent from Great Britain and that absence has not lasted for a continuous period exceeding 13 weeks.]

F33(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F34(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F35(3A) A person shall be treated as habitually resident in Great Britain for the purpose of paragraph (1)(a)(i) where—

(a)he is resident outside Great Britain 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; or

(b)he is living with a person mentioned in 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.]

[F36(3B) Where a person is temporarily absent from Great Britain, he is treated as present in Great Britain 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 Great Britain; and

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

(i)outside Great Britain,

(ii)during the period whilst he is temporarily absent from Great Britain, 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.]

[F37(3C) For the purpose of paragraph (2)(d) and (3B) a person is “temporarily absent” if, at the beginning of the period of absence, that absence is unlikely to exceed 52 weeks.]

(4) Where a person is terminally ill and–

(a)makes a claim for disability living allowance; or

(b)an application is made for a [F38revision under section 9 of the 1998 Act or supersession under section 10 of that Act] of his award of disability living allowance, expressly on the ground that he is such a person, paragraph (1) shall apply to him as if head (iii) of sub-paragraph (a) was omitted.

(5) Paragraph (1) shall apply in the case of a child under the age of 6 months as if in head (iii) of sub-paragraph (a) for the reference to [F39104] weeks there was substituted a reference to 13 weeks.

(6) Where in any particular case a child has by virtue of paragraph (5), entitlement to the care component immediately before the day he attains the age of 6 months, then until the child attains the age of 12 months, head (iii) of sub-paragraph (a) of paragraph (1) shall continue to apply in his case as if for the reference to [F40104] weeks there was substituted a reference to 13 weeks.

[F41(7) 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 head (iii) of sub-paragraph (a) for the reference to 104 weeks there was substituted a reference to 26 weeks.]

Textual Amendments

F27 S.I. 1979/591 ; the relevant amending instruments are S.I. 1980/1975 , S.I . 1982/1738.

F30 See regulation 85 of the Social Security (Contributions) Regulations 1979; section 132 was amended by the Oil and Gas Enterprise Act 1982 (c.23) schedule 3, paragraph 21.

F38Words in reg. 2(4)(b) substituted (18.10.99) by S.I. 1999/2860, Sch. 7, para. 2, reg.1

[F42 Persons residing in Great Britain to whom a relevant EU Regulation applies E+W+S

2A.—(1) Regulation 2(1)(a)(iii) 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 purpose of paragraph (1)(b) and regulation 2B, “relevant EU Regulation” has the meaning given by section 84(2) of the Welfare Reform Act 2012.

Textual Amendments

Persons residing in an EEA state F43... or in Switzerland to whom a relevant EU Regulation applies E+W+S

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 F44...; 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

[F45[F46Refugees and certain persons with leave to enter and remain in the United Kingdom]E+W+S

2C.—(1) Regulation 2(1)(a)(iii) shall not apply where the person has—

(a)been granted refugee status or humanitarian protection under the immigration rules; F47...

(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.

[F48(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), F49...

(e)leave granted under the Afghan Citizens Resettlement Scheme] [F50or]

[F50(f)leave to enter or remain in the United Kingdom granted under or outside the immigration rules or a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 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.]

[F51(1A) Regulation 2(1)(a)(i) shall not apply where [F52any sub-paragraph in paragraph (1)] applies to the person.]

[F53(2) For the purposes of this regulation “immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971.]

[F53(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

Age 65 or overE+W+S

3.—(1) A person shall not be precluded from entitlement to either component of disability living allowance by reason only that he has attained the age of 65 years, [F54if he is a person to whom paragraphs (2) and (3) apply.]

F55(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F56(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F57(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F58(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) Paragraph (3) applies to a person who–

(a)made a claim for disability living allowance before he attained the age of 65, which was not determined before he attained that age, and

(b)did not at the time he made the claim have an award of disability living allowance for a period ending on or after the day he attained the age of 65.

(3) In determining the claim of a person to whom this paragraph applies, where the person otherwise satisfies the conditions of entitlement to either or both components of disability living allowance for a period commencing before his 65th birthday (other than the requirements of section [F59section 72](2)(a), or, as the case may be, section [F60section 73](9)(a) of the Act (3 months qualifying period)), the determination shall be made without regard to the fact that he is aged 65 or over at the time the claim is determined.

[F61(3A)  A person shall not be precluded from entitlement to the care component of disability living allowance by reason only that he has attained the age of 65 years if the claim   is treated as made on 18th October 2007 in accordance with regulation 6(35) of the Social Security (Claims and Payments) Regulations 1987 (date of claim). ]

(4) Schedule 1, which makes further provision for persons aged 65 or over shall have effect.

Textual Amendments

F54words in reg. 3(1) substituted (6.10.97) by reg. 2 of S.I. 1997/349, reg. 2, reg 1

F55Reg 3(1)(a) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F56Reg 3(1)(b) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F57Reg 3(1)(c) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F58Reg 3(1)(d) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

Rate of BenefitE+W+S

4.—(1) The three weekly rates of the care component are–

(a)the highest rate, payable in accordance with [F62section 72](4)(a) of the Act, [F63£89.60][F64£89.60]

(b)the middle rate, payable in accordance with [F62section 72](4)(b) of the Act, [F65£60.00 ][F66£60.00 ]and

(c)the lowest rate, payable in accordance with [F62section 72](4)(c) of the Act, [F67£23.70 ][F68£23.70]

(2) The two weekly rates of the mobility component are–

(a)the higher rate, payable in accordance with [F69section 73](11)(a) of the Act, [F70£62.55 ][F71£62.55 ]and

(b)the lower rate, payable in accordance with [F69section 73](11)(b) of the Act, [F72£23.70][F73£23.70]

Textual Amendments

F63Sum in Reg. 4(1)(a) substituted (S) (12.4.2021) by The Social Security Up-rating (Scotland) Order 2021 (S.S.I. 2021/169), arts. 1(4), 8(a)

Late claim by a person previously entitledE+W+S

F74 5 .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F75Medical examination in prescribed circumstancesE+W+S

F765A.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F75Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F76Reg. 5A revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

[F77Withholding of benefit in prescribed circumstancesE+W+S

F785B.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F77Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F78Reg. 5B revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

[F79Payment of withheld benefitE+W+S

F805C.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F79Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F80Reg. 5C revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

PART IIIE+W+S CARE COMPONENT

Qualifying period for care component after an intervalE+W+S

6.—(1) The period prescribed for the purposes of [F81section 72](2)(a)(ii) of the Act is a period of 3 months ending on the day on which the person was last entitled to the care component [F82of disability living allowance, or the care component of child disability payment] or to attendance allowance where that day falls not more than 2 years before the date on which entitlement to the care component [F83of disability living allowance, or the care component of child disability payment] would begin, or would have begun but for any regulations made under [F84section 5(1)(k) of the Administration Act] (which enables regulations to provide for the day on which entitlement to benefit is to begin or end).

(2) Except in a case to which paragraph (3) applies, this regulation shall apply to a person to whom paragraph 3 or 7 of Schedule 1 refers as if for the reference to 3 months there was substituted a reference to 6 months.

(3) Paragraph (1) and not paragraph (2), shall apply to those persons referred to in paragraph (2) who, on the day before they attained the age of 65, had already completed the period of 3 months referred to in paragraph (1).

(4) For the purposes of paragraph (3), the modification made in Schedule 1–

(a)in paragraph 3(2) and 7(2), to [F85section 72](2)(a) of the Act, and

(b)in paragraph 5(2), to [F86section 73](9)(a) of the Act,

shall be treated as not having been made.

Textual Amendments

Renal DialysisE+W+S

7.—(1) A person who suffers from renal failure and falls within the provisions in paragraph (2) shall be taken to satisfy–

(a)where he undergoes renal dialysis by day, the conditions in paragraph (b) of subsection (1) of [F87section 72] of the Act (severe physical or mental disability);

(b)where he undergoes renal dialysis by night, the conditions in paragraph (c) of that subsection; or

(c)where he undergoes renal dialysis by day and by night, the conditions in either paragraph (b) or paragraph (c) of subsection (1), but not both.

(2) Subject to paragraph (3), a person falls within this paragraph–

(a)if–

(i)he undergoes renal dialysis two or more times a week; and

(ii)the renal dialysis he undergoes is of a type which normally requires the attendance or supervision of another person during the period of the dialysis; or

(iii)because of the particular circumstances of his case he in fact requires another person, during the period of the dialysis, to attend in connection with his bodily functions or to supervise him in order to avoid substantial danger to himself; and

(b) if, where he undergoes dialysis as an out-patient in a hospital or similar institution, being treatment provided under [F88the NHS Act of 1978, the NHS Act of 2006 or the NHS (Wales) Act of 2006], no member of the staff of the hospital or institution assists with or supervises the dialysis.

[F89(3) Paragraph (2)(b) does not apply for the purpose of determining whether a person is to be taken to satisfy any of the conditions mentioned in paragraph (1) during the periods mentioned in section 72(2)(a)(i) and (b)(i) of the Act.]

(4)  Except to the extent that provision is made in paragraph (2)(b), a person who undergoes treatment by way of renal dialysis as an out-patient in a hospital or similar institution, being treatment provided under [F90the NHS Act of 1978, the NHS Act of 2006 or the NHS (Wales) Act of 2006], shall not be taken solely by reason of the fact that he undergoes such dialysis, as satisfying any of the conditions mentioned in subsection (1)(a) to (c) of [F91 section 72 ] of the Act.

Textual Amendments

[F92Hospitalisation of persons aged 18 or over]E+W+S

8.—(1) Subject to [F93paragraph (2B) and] regulation 10, it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the care component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient–

(a) in a health service hospital, within the meaning of [F94the NHS Act of 1978, the NHS Act of 2006 or the NHS (Wales) Act of 2006]; or

(b)in pursuance of arrangements made, or having effect as if made, by the Secretary of State, or any body in the exercise of functions on behalf of the Secretary of State under either of those Acts, in a hospital or similar institution; or

(c)in a hospital or similar institution maintained or administered by the Defence Council or a National Health Service Trust; or

(d)in a hospital or similar institution in pursuance of arrangements made by a member of a recognised fund-holding practice.

(2)  For the purposes of paragraph (1) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under;

[F95(a) section 57 of, and paragraph 14 of Schedule 7A to, the NHS Act of 1978;

(b) section 13 of, and paragraph 15 of Schedule 2 to, the NHS Act of 2006;

(c) section 28 of, and paragraph 11 of Schedule 6 to, the NHS Act of 2006;

(d) section 44(6) of, and paragraph 19(1) of Schedule 4 to, the NHS Act of 2006;

(e) section 11 of, and paragraph 15 of Schedule 2 to, the NHS (Wales) Act of 2006;

(f) section 18 of, and paragraph 19(1) of Schedule 3 to, the NHS (Wales) Act of 2006; or

(g) section 22 of, and paragraph 11 of Schedule 5 to, the NHS (Wales) Act of 2006. ]

[F96(2A) For the purposes of paragraph (1), a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or other similar institution referred to in that paragraph and to end on the day [F97before the day]on which he leaves such a hospital or other similar institution.]

[F98(2B) This regulation does not apply to a person who was under the age of 18 on the day on which he entered the hospital or other similar institution referred to in paragraph (1) to begin his current period as an in-patient.]

(3) In this regulation–

  • “National Health Service trust” has the meaning assigned to it by the NHS Act of 1990;

  • “recognised fund-holding practice” shall be construed in accordance with section 14 of the NHS Act of 1990.

Textual Amendments

F96Reg. 8(2A) inserted (7.6.99) by S.I. 1999/1326, reg. 1, 4

[F99Persons in care homesE+W+S

9.—(1) Except in the cases specified in paragraphs (3) to (5), and subject to regulation 10, a person shall not be paid any amount in respect of a disability living allowance which is attributable to entitlement to the care component for any period where throughout that period he is a resident in a care home in circumstances where any of the costs of any qualifying services provided for him are borne out of public or local funds under a specified enactment.

(2) The specified enactments for the purposes of paragraph (1) are—

(a)(i)Part III of the National Assistance Act 1948,

(ii)[F100sections 59 and 59A] of the Social Work (Scotland) Act 1968,

(iii)the Mental Health (Care and Treatment) (Scotland) Act 2003,

(iv)the Community Care and Health (Scotland) Act 2002,

(v) the Mental Health Act 1983; F101 ...

[F102(vi)section 57 of the Health and Social Care Act 2001, F103...]

[F104(vii)Part 1 of the Care Act 2014 (care and support), F105...]

[F106(viii)Part 4 of the Social Services and Well-being (Wales) Act 2014 (meeting needs), or]

(b)any other enactment relating to persons under disability or to young persons or to education or training.

(3) Paragraph (2)(b) shall not apply in circumstances where any of the costs of the qualifying services provided for him are borne wholly or partly out of public or local funds by virtue of—

(a)section 485 of the Education Act 1996, section 14 of the Education Act 2002 or section 73 of the Education (Scotland) Act 1980 (which relate to grants in aid of educational services);

(b)F107 ... sections 49 or 73 of the Education (Scotland) Act 1980 (which relate respectively to the power of education authorities to assist persons to take advantage of educational facilities and the powers of the Secretary of State to make grants to education authorities and others);

(c)section 65 of the Further and Higher Education Act 1992[F108, sections 39 or 40 of the Higher Education and Research Act 2017] or sections 4 or 11 of the Further and Higher Education (Scotland) Act 2005 (which relate respectively to the funding of further education and the administration of funds);

F109(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)section 22 of the Teaching and Higher Education Act 1998.

(4) Subject to paragraph (5), paragraphs (1) and (2) shall not apply in the case of a child F110...—

(a)[F111who] has not attained the age of 16 and is being looked after by a local authority; or

(b)[F112who] has not attained the age of 18 and to whom—

(i)section 17(10)(b) of the Children Act 1989 or section 93(4)(a)(ii) of the Children (Scotland) Act 1995 (impairment of health and development) applies because his health is likely to be significantly impaired, or further impaired, without the provision of services for him, or

(ii)section 17(10)(c) of the Children Act 1989 (disability) or section 93(4)(a)(iii) of the Children (Scotland) Act 1995 (disability) applies; or

[F113(ba)to whom section 37, 38 or 42 of the Social Services and Well-being (Wales) Act 2014 applies; or]

(c)who is accommodated outside the United Kingdom and the costs of any qualifying services are borne wholly or partly by a local authority pursuant to their powers under section 320 of the Education Act 1996 or section 25 of the Education (Additional Support for Learning) (Scotland) Act 2004.

(5) Sub-paragraphs [F114(a), (b) and (ba)] of paragraph (4) shall only apply during any period which the local authority looking after the child place him in a private dwelling with a family, or a relative of his, or some other suitable person.

(6) In this regulation and in regulation 10, references to the costs of any qualifying services shall not include the cost of—

(a)domiciliary services, including personal care, provided in respect of a person in a private dwelling; or

(b)improvements made to, or furniture or equipment provided for, a private dwelling on account of the needs of a person under disability; or

(c)improvements made to, or furniture or equipment provided for, a care home in respect of which a grant or payment has been made out of public or local funds except where the grant or payment is of a regular or repeated nature; or

(d)social and recreational activities provided outside the care home in respect of which grants or payments are made out of public or local funds; or

(e)the purchase or running of a motor vehicle to be used in connection with any qualifying service provided in a care home in respect of which grants or payments are made out of public or local funds; or

F115(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) For the purposes of paragraph (1), a period during which a person is a resident in a care home in the circumstances set out in that paragraph shall, subject to paragraphs (8) and (9), be deemed—

(a)to begin on the day after the day on which he enters a care home, and

(b)to end on the day before the day on which he leaves a care home.

(8) Where a person enters a care home from a hospital or similar institution in circumstances in which paragraph (1) of regulation 6 applies, the period during which he is a resident in the care home shall be deemed to begin on the day he enters that care home.

(9) Where a person leaves a care home and enters a hospital or similar institution in circumstances in which paragraph (1) of regulation 6 applies, the period during which he is a resident in the care home shall be deemed to end on the day he leaves that care home]

Textual Amendments

Persons to whom regulations 9 and 10 apply with modificationsE+W+S

F1169A.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Exemption from regulation 8 and 9E+W+S

10.—(1) Regulation 8, or as the case may be, regulation 9, shall not, [F117subject to the following provisions of this regulation], apply to a person for the first 28 days of any period throughout which he is someone to whom paragraph (4) applies.

F118(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where on the day the person’s entitlement to the care component commenced, he is a person to whom paragraph (4) refers, then paragraph (1) F119... shall not apply to him for any period of consecutive days, beginning with that day, in which he continues to be a person to whom paragraph (4) refers.

(4) This paragraph refers to a person who–

(a)is undergoing medical or other treatment in a hospital or other institution in any of the circumstances mentioned in regulation 8; or

[F120(b)would, but for this regulation, be prevented from receiving the care component of a disability living allowance by reason of regulation 9(1).]

(5) For the purposes of [F121paragraph (1)]–

(a)2 or more distinct periods separated by an interval not exceeding 28 days, or by 2 or more such intervals shall be treated as a continuous period equal in duration to the total of such distinct periods and ending on the last day of the later or last such period;

(b)any period or periods to which regulation 8(1) or 9(1) refers shall be taken into account and aggregated with any period to which the other of them refers.

[F122(6)  Regulation 8 or as the case may be regulation 9 shall not apply F123 ... in the case of a person who is residing in a hospice and is terminally ill where the Secretary of State has been informed that he is terminally ill—

(a)on a claim for the care component,

(b) on an application for a [F124 revision under section 9 of the 1998 Act or supersession under section 10 of that Act ] of an award of disability living allowance, or

(c) in writing in connection with an award of, or a claim for, or an application for a [F125 revision under section 9 of the 1998 Act or supersession under section 10 of that Act ] of an award of, disability living allowance.

(7) In paragraph (6) “hospice” means a hospital or other institution[F126whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages] other than—

F127( a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) a health service hospital (within the meaning of section 108(1) of the NHS Act of 1978 ) in Scotland;

[F128(ba) a health service hospital (within the meaning of section 275 of the NHS Act of 2006) in England;

(bb)a hospital in Wales vested in—

(i) an NHS Trust;

(ii)a Local Health Board; or

(iii) the Welsh Ministers, for the purpose of functions under the NHS (Wales) Act of 2006; ]

(c)a hospital maintained or administered by the Defence Council; or

(d)an institution similar to a hospital mentioned in any of the preceding sub-paragraphs of this paragraph.

[F129(8) Regulation 9 shall not apply in any particular case for any period during which the whole costs of all of the qualifying services are met—

(a)out of the resources of the person for whom the qualifying services are provided, or partly out of his own resources and partly with the assistance from another person or a charity, or

(b)on his behalf by another person or a charity.]]

[F130(8A) For the purpose of paragraph (7)(bb)—

(a) “ NHS Trust” means a body established under section 18 of the NHS (Wales) Act of 2006; and

(b) “Local Health Board” means a body established under section 11 of the NHS (Wales) Act of 2006. ]

F131( 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F117Words substituted (1.4.93) in reg. 10(1) by S.I. 1992/3147, reg. 7(2)(a), reg. 1

F120Reg. 10(4)(b) substituted (6.4.92) by S.I. 1992/633, Reg. 2(4), reg. 1

F122Reg. 10(6)-(8) inserted (1.4.93) by S.I. 1992/3147 reg. 1,7

F124Words in reg. 10(6)(b) substituted (18.10.99) by S.I. 1999/2860, Sch. 7, para 4, reg. 1

F125Words in reg. 10(6)(c) substituted (18.10.99) by S.I. 1999/2860, Sch. 7, para 4, reg. 1

F126Words inserted in reg. 10(7) (1.9.93) by S.I. 1993/518, reg 3(3)(b), reg. 1

[F132Adjustment of allowance where medical expenses are paid from public funds under war pensions instrumentsE+W+S

10A.—(1) In this regulation—

“article 25B” means article 25B of the Personal Injuries (Civilians) Scheme 1983 (medical expenses) and includes that article as applied by article 48B of that Scheme;

“article [F133 21 ] ” means article [F133 21 ] of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order [F134 2006 ] (medical expenses);

and in this regulation and regulation 10B “relevant accommodation” means accommodation provided as a necessary ancillary to nursing care where the medical expenses involved are wholly borne by the Secretary of State pursuant to article 25B or article [F13321].

(2) This regulation applies where a person is provided with relevant accommodation.

(3) Subject to regulation 10B, where this regulation applies and there are payable in respect of a person both a payment under article 25B or article [F13521] and a disability living allowance which is attributable to the care component, the allowance, in so far as it is so attributable, shall be adjusted by deducting from it the amount of the payment under article 25B or article [F13521], as the case may be, and only the balance shall be payable.

Textual Amendments

F132Reg. 10A and 10B inserted (1.8.1994) by S.I. 1994/1779 reg. 3(4)

Exemption from regulation 10AE+W+S

10B.—(1) Regulation 10A shall not, subject to the following provisions of this regulation, apply to a person in respect of the first 28 days of any period during which the amount of any disability living allowance attributable to the care component would be liable to be adjusted by virtue of regulation 10A(3).

(2) For the purposes of paragraph (1) two or more distinct periods separated by an interval not exceeding 28 days, or by two or more such intervals, shall be treated as a continuous period equal in duration to the aggregate of such distinct periods and ending on the last day of the later or last such period.

(3) For the purposes of this paragraph a day is a relevant day in relation to a person if it fell not earlier than 28 days before the first day on which he was provided with relevant accommodation; and either—

(a)was a day when he was undergoing medical treatment in a hospital or similar institution in any of the circumstances mentioned in regulation 8; or

(b)was a day when he was, or would but for regulation 10 have been, prevented from receiving a disability living allowance attributable to the care component by virtue of regulation 9(1);

and where there is in relation to a person a relevant day, paragraph (1) shall have effect as if for “28 days” there were substituted such lesser number of days as is produced by subtracting from 28 the number of relevant days in his case.]

Textual Amendments

F132Reg. 10A and 10B inserted (1.8.1994) by S.I. 1994/1779 reg. 3(4)

[F136Prescribed circumstance for entitlement to the care componentE+W+S

10C.  For the purposes of section 72(7) of the Act (prescribed circumstances in which a person is to be taken to satisfy or not to satisfy the conditions mentioned in section 72(1)(a) to (c) of that Act), a person shall not be taken to satisfy subsection (1)(a)(i) or (b)(i) (day attention) or (c)(i) (night attention) unless the attention the severely disabled person requires from another person is required to be given in the physical presence of the severely disabled person.]

Textual Amendments

PART IVE+W+S MOBILITY COMPONENT

Qualifying period for mobility component after an intervalE+W+S

11.  The period prescribed for the purposes of [F137section 73](9)(a)(ii) of the Act is a period of 3 months ending on the day on which the person was last entitled to the mobility component [F138of disability living allowance, or the mobility component of child disability payment] or to mobility allowance, where that day falls not more than 2 years before the date on which entitlement to the mobility component [F139of disability living allowance, or the mobility component of child disability payment] would begin or would have begun but for any regulations made under [F140section 5(1)(k) of the Administration Act] (which enables regulations to provide for the day on which entitlement to benefit is to begin or end).

Textual Amendments

Entitlement to the mobility componentE+W+S

F14112.—(1) A person is to be taken to satisfy the conditions mentioned in [F142section 73](1)(a) of the Act (unable or virtually unable to walk) only in the following circumstances–

(a)his physical condition as a whole is such that, without having regard to circumstances peculiar to that person as to the place of residence or as to place of, or nature of, employment–

(i)he is unable to walk; or

(ii)his ability to walk out of doors is so limited, as regards the distance over which or the speed at which or the length of time for which or the manner in which he can make progress on foot without severe discomfort, that he is virtually unable to walk; or

(iii)the exertion required to walk would constitute a danger to his life or would be likely to lead to a serious deterioration in his health; or

(b)he has both legs amputated at levels which are either through or above the ankle, or he has one leg so amputated and is without the other leg, or is without both legs to the same extent as if it, or they, had been so amputated.

[F141(1A) (a) For the purposes of section 73(1AB)(a) of the Act (mobility component for the severely visually impaired) a person is to be taken to satisfy the condition that he has a severe visual impairment if—

(i)he has visual acuity, with appropriate corrective lenses if necessary, of less than 3/60; or

(ii)he has visual acuity of 3/60 or more, but less than 6/60, with appropriate corrective lenses if necessary, a complete loss of peripheral visual field and a central visual field of no more than 10° in total.

(b)For the purposes of section 73(1AB)(b), the conditions are that he has been certified as severely sight impaired or blind by a consultant ophthalmologist.

(c)In this paragraph—

(i)references to visual acuity are to be read as references to the combined visual acuity of both eyes in cases where a person has both eyes;

(ii)references to measurements of visual acuity are references to visual acuity measured on the Snellen Scale;

(iii)references to visual field are to be read as references to the combined visual field of both eyes in cases where a person has both eyes.]

(2) For the purposes of [F142section 73](2)(a) of the Act (mobility component for the blind and deaf) a person is to be taken to satisfy–

(a)the condition that he is blind only where the degree of disablement resulting from the loss of vision amounts to 100 per cent; and

(b)the condition that he is deaf only where the degree of disablement resulting from loss of hearing[F143when using any artificial aid which he habitually uses or which is suitable in his case] amounts to not less than 80 per cent on a scale where 100 per cent represents absolute deafness.

(3) For the purposes of [F142section 73](2)(b) of the Act, the conditions are that by reason of the combined effects of the person’s blindness and deafness, he is unable, without the assistance of another person, to walk to any intended or required destination while out of doors.

(4) Except in a case to which paragraph (1)(b) applies, a person is to be taken not to satisfy the conditions mentioned in [F142section 73](1)(a) of the Act if he–

(a)is not unable or virtually unable to walk with a prosthesis or artificial aid which he habitually wears or uses, or

(b)would not be unable or virtually unable to walk if he wore or used a prosthesis or an artificial aid which is suitable in his case.

(5) A person falls within subsection (3)(a) of [F142section 73] of the Act (severely mentally impaired) if he suffers from a state of arrested development or incomplete physical development of the brain, which results in severe impairment of intelligence and social functioning.

(6) A person falls within subsection (3)(b) of [F142section 73] of the Act (severe behavioural problems) if he exhibits disruptive behaviour which–

(a)is extreme,

(b)regularly requires another person to intervene and physically restrain him in order to prevent him causing physical injury to himself or another, or damage to property, and

(c)is so unpredictable that he requires another person to be present and watching over him whenever he is awake.

[F144(7) For the purposes of section 73(1)(d) of the Act, a person who is able to walk is to be taken not to satisfy the condition of being so severely disabled physically or mentally that he cannot take advantage of the faculty out of doors without guidance or supervision from another person most of the time if he does not take advantage of the faculty in such circumstances because of fear or anxiety.

(8) Paragraph (7) shall not apply where the fear or anxiety is—

(a)a symptom of a mental disability; and

(b)so severe as to prevent the person from taking advantage of the faculty in such circumstances.]

Textual Amendments

F141Reg. 12(1A) inserted (15.10.2010 for specified purposes, 11.4.2011 in so far as not already in force) by The Social Security (Disability Living Allowance) (Amendment) Regulations 2010 (S.I. 2010/1651), regs. 1(2), 2(2)

F143Words in reg. 12(2)(b) inserted (1.8.94) by S.I. 1994/1779, reg. 3(5), reg 1

[F145Hospitalisation [F146of persons aged 18 or over] in mobility component casesE+W+S

12A.—(1) Subject to [F147paragraph (3) and] regulation 12B (exemption), it shall be a condition for the receipt of a disability living allowance which is attributable to entitlement to the mobility component for any period in respect of any person that during that period he is not maintained free of charge while undergoing medical or other treatment as an in-patient—

(a) in a hospital or similar institution under [F148 the NHS Act of 1978, the NHS Act of 2006 or the NHS (Wales) Act of 2006 ]; or

(b)in a hospital or other similar institution maintained or administered by the Defence Council.

(2)  For the purposes of paragraph (1)(a) a person shall only be regarded as not being maintained free of charge in a hospital or similar institution during any period when his accommodation and services are provided under section 65—

[F149(a) section 57 of, and paragraph 14 of Schedule 7A to, the NHS Act of 1978;

(b) section 13 of, and paragraph 15 of Schedule 2 to, the NHS Act of 2006;

(c) section 28 of, and paragraph 11 of Schedule 6 to, the NHS Act of 2006;

(d) section 44(6) of, and paragraph 19(1) of Schedule 4 to, the NHS Act of 2006;

(e) section 11 of, and paragraph 15 of Schedule 2 to, the NHS (Wales) Act of 2006;

(f) section 18 of, and paragraph 19(1) of Schedule 3 to, the NHS (Wales) Act of 2006; or

(g) section 22 of, and paragraph 11 of Schedule 5 to, the NHS (Wales) Act of 2006. ]

[F150(2A) For the purposes of paragraph (1), a period during which a person is maintained free of charge while undergoing medical or other treatment as an in-patient shall be deemed to begin on the day after the day on which he enters a hospital or other similar institution referred to in that paragraph and to end on the day [F151before the day] on which he leaves such a hospital or other similar institution.]

[F152(3) This regulation does not apply to a person who was under the age of 18 on the day on which he entered the hospital or other similar institution referred to in paragraph (1) to begin his current period as an in-patient.]

Textual Amendments

F145Reg. 12A to 12C inserted (31.7.96) by S.I. 1996/1436 reg. 1, 2

F150Reg. 12A(2A) inserted (7.6.99) by S.I. 1999/1326 reg. 1,4

Exemption from regulation 12AE+W+S

12B.—(1) Subject to paragraph (2), regulation 12A shall not apply to a person—

(a) for the first 28 days; F153

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

of any period throughout which he is a person to whom paragraph (10) applies.

(2) Where, on the day on which a person’s entitlement to the mobility component commences, he is a person to whom paragraph (10) applies, paragraph (1) shall not apply to him for any period of consecutive days, beginning with that day, in which he continues to be a person to whom paragraph (10) applies.

(3) For the purposes of paragraphs [F154(1), (4), (7), (8) and (8A)], two or more distinct periods separated by an interval not exceeding 28 days, or by two or more such intervals, shall be treated as a continuous period equal in duration to the total of such distinct periods and ending on the last day of the later or last such period.

(4) Subject to paragraph (5) and regulation 12C, where—

(a)immediately before 31st July 1996, a person has, for a continuous period of not less than 365 days, been a person to whom paragraph (10) applies and in receipt of the mobility component and on 31st July 1996 is a person to whom that paragraph applies; or

(b)on a day not more than 28 days prior to 31st July 1996, a person has, for a continuous period of not less than 365 days, been a person to whom paragraph (10) applies and in receipt of the mobility component, and on or after 31st July 1996 and not more than 28 days after the last day of the previous distinct period during which that paragraph applies, becomes a person to whom that paragraph again applies,

regulation 12A shall not apply until such time as paragraph (10) first ceases to apply to him for more than 28 consecutive days.

(5)  Paragraph (4) shall not apply where on 31st July 1996 a person is detained under Part II or III of the Mental Health Act 1983 or [F155Part 5, 6 or 7 or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 or section 52D or 52M of the Criminal Procedure (Scotland) Act 1995]

(6) Where, on a day after 31st July 1996, a person—

(a) becomes detained under Part II or III of the Mental Health Act 1983 or [F156 Part 5, 6 or 7 or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 or section 52D or 52M of the Criminal Procedure (Scotland) Act 1995 ] ; or

(b)ceases to be entitled to the mobility component,

paragraph (4) shall cease to be applicable to that person and shall not again become applicable to him.

[F157(7)  Subject to regulation 12C, where on 8th April 2013, 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) F158 ..., continue not to apply to that person for the period that terminates in accordance with paragraph (8). ]

[F159(8) The period referred to in paragraph (7) terminates-

(a)on the first day after 8th April 2013 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 8th April 2016;

whichever is the earliest.]

[F160(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.]

[F161(8B) In paragraph (8A)(a) the “current term of hire” means the last term of hire that was agreed on or before 8th April 2013 but does not include any extension of that last term of hire after 8th April 2013.]

F162( 9 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F163(9A) Regulation 12A shall not apply in the case of a person who is residing in a hospice and is terminally ill where the Secretary of State has been informed that he is terminally ill—

(a)on a claim for disability living allowance;

(b) on an application for a [F164 revision under section 9 of the 1998 Act or supersession under section 10 of that Act ] of an award of disability living allowance; or

(c) in writing in connection with an award of, or a claim for, or an application for [F165 revision under section 9 of the 1998 Act or supersession under section 10 of that Act ] of an award of, disability living allowance. ]

(10) This paragraph refers to a person who is undergoing medical or other treatment in a hospital or other institution in any of the circumstances referred to in regulation 12A.

(11) For the purposes of paragraph (4), receipt of mobility allowance prior to 6th April 1992 shall be treated as receipt of the mobility component.

(12) In this regulation—

[F166(za)“hospice” has the same meaning as that given in paragraph (7) of regulation 10;]

(a)“Motability agreement” means an agreement such as is referred to in regulation 44(1) of the Social Security (Claims and Payments) Regulations 1987 (payment of disability living allowance on behalf of a beneficiary in settlement of liability for payments under an agreement for the hire or hire-purchase of a vehicle);

(b)“Motability” means the company, set up under that name as a charity and originally incorporated under the Companies Act 1985 and subsequently incorporated by Royal Charter.

Textual Amendments

F145Reg. 12A to 12C inserted (31.7.96) by S.I. 1996/1436 reg. 1, 2

F163Reg. 12B(9A) inserted (31.7.96) by S.I. 1996/1767 reg. 2(2), reg. 1

F164Words in reg. 12B(9A) (b) substituted (18.10.99) by S.I. 1999/2860, sch.7 para. 4, reg. 1

F165Words in reg. 12B(9A) (c) substituted (18.10.99) by S.I. 1999/2860, sch.7 para. 4, reg. 1

F166Reg. 12B(12)(za) inserted (31.7.96) by S.I. 1996/1767 reg. 2(3), reg. 1

Adjustment of benefit to certain persons exempted from regulation 12AE+W+S

12C.—(1) Subject to paragraph (3), where a person is a person to whom regulation 12B(4) applies and the mobility component would otherwise be payable at the higher rate prescribed by regulation 4(2)(a), the benefit shall be adjusted so that it is payable at the lower rate prescribed by regulation 4(2)(b).

(2) Subject to paragraph (3), where regulation 12B(7) applies, the benefit shall be adjusted so that it is payable at a rate equal to the weekly amount payable under the relevant agreement for the period referred to in that regulation.

(3) Where paragraphs (4) and (7) of regulation 12B both apply, the benefit shall be adjusted so that it is payable either at the lower rate prescribed by regulation 4(2)(b) or at a rate equal to the weekly amount payable under the relevant agreement referred to in regulation 12B(7), whichever is the greater.]

Textual Amendments

F145Reg. 12A to 12C inserted (31.7.96) by S.I. 1996/1436 reg. 1, 2

Invalid Vehicle SchemeE+W+S

13.  Schedule 2, which relates to the entitlement to mobility component of certain persons eligible for invalid carriages shall have effect.

Signed by authority of the Secretary of State for Social Security.

Nicholas Scott

Minister of State,

Department of Social Security

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