The Social Security (Disability Living Allowance) Regulations 1991

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[F1and regulations [F22A, 2B and 2C]] , the prescribed conditions for the purposes of [F3section 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 [F4habitually] resident in [F5the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands]; and

[F6(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 [F7104] weeks in the [F8156] weeks immediately preceding that day; F9...

F10(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 [F12111 and 115]respectively of the Social Security (Contributions) Regulations [F122001]F13 ,

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 [F142001]; or

(b) he is in employment prescribed for the purposes of [F15 section 120 ] of the Act in connection with continental shelf operations F16 ; or

(c)he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse,[F17civil partner,] son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person; or

[F18(d)he is temporarily absent from Great Britain and that absence has not lasted for a continuous period exceeding 13 weeks.]

F19(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F20(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F21(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.]

[F22(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.]

[F23(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 [F24revision 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 [F25104] 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 [F26104] weeks there was substituted a reference to 13 weeks.

[F27(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

F13 S.I. 1979/591 ; the relevant amending instruments are S.I. 1980/1975 , S.I . 1982/1738.

F16 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.

F24Words in reg. 2(4)(b) substituted (18.10.99) by S.I. 1999/2860, Sch. 7, para. 2, reg.1

[F28 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 F29... 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 F30...; 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

[F31RefugeesE+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; or

(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.

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

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, [F32if he is a person to whom paragraphs (2) and (3) apply.]

F33(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F34(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F35(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F36(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 [F37section 72](2)(a), or, as the case may be, section [F38section 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.

[F39(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

F32words in reg. 3(1) substituted (6.10.97) by reg. 2 of S.I. 1997/349, reg. 2, reg 1

F33Reg 3(1)(a) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F34Reg 3(1)(b) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F35Reg 3(1)(c) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F36Reg 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 [F40section 72](4)(a) of the Act, [F41£89.15]

(b)the middle rate, payable in accordance with [F40section 72](4)(b) of the Act, [F42£59.70 ]and

(c)the lowest rate, payable in accordance with [F40section 72](4)(c) of the Act, [F43£23.60]

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

(a)the higher rate, payable in accordance with [F44section 73](11)(a) of the Act, [F45£62.25 ]and

(b)the lower rate, payable in accordance with [F44section 73](11)(b) of the Act, [F46£23.60]

Textual Amendments

Late claim by a person previously entitledE+W+S

F47 5 .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F48Medical examination in prescribed circumstancesE+W+S

F495A.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F48Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F49Reg. 5A revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

[F50Withholding of benefit in prescribed circumstancesE+W+S

F515B.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F50Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F51Reg. 5B revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

[F52Payment of withheld benefitE+W+S

F535C.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F52Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F53Reg. 5C revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3