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The Social Security (Disability Living Allowance) Regulations 1991

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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 [F2regulations 2ZA, 2ZB, 2A] [F3, 2B and 2C]], the prescribed conditions for the purposes of [F4section 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 [F5habitually] resident in [F6the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands]; and

[F7(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 [F8the relevant place]; and

(iii)he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than [F9104] weeks in the [F10156] weeks immediately preceding that day; F11...

F12(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F13(1ZZA) For the purposes of this regulation, the relevant place is—

(a)if the person is either under the age of 16 or satisfies both the status condition and the award condition, England and Wales;

(b)otherwise, Great Britain.]

F14(1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F15(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.]

[F16(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 [F17the relevant area] if his absence [F18from Great Britain] 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 [F19111 and 115] respectively of the Social Security (Contributions) Regulations [F192001]F20,

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 [F212001]; or

(b) he is in employment prescribed for the purposes of [F22section 120] of the Act in connection with continental shelf operations F23; or

(c)he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, [F24civil partner,] son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person; or

[F25(d)he is temporarily absent from Great Britain and that absence has not lasted for a continuous period exceeding 13 weeks.]

F26(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F27(2A) Where a person (“P”) is required for the purposes of paragraph (1)(a)(ii) to be present in England and Wales, even though P is absent from England and Wales on any day, P is to be treated as though P were present in England and Wales on that day if—

(a)P’s absence on that day is by reason only of the fact that P is temporarily absent from England and Wales; and

(b)P is present in Scotland.]

F28(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F29(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.]

[F30(3B) Where a person is temporarily absent from Great Britain, he is treated as present in [F31the relevant area] 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.]

[F32(3BA) In paragraphs (2) and (3B), “the relevant area” means—

(a)for the purposes of paragraph (1)(a)(ii), the relevant place;

(b)for the purposes of paragraph (1)(a)(iii), Great Britain.]

[F33(3C) For the purpose of paragraph (2)(d) and (3B) a person is “temporarily absent” [F34only 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 [F35revision 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 [F36104] 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 [F37104] weeks there was substituted a reference to 13 weeks.

[F38(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

F20 S.I. 1979/591 ; the relevant amending instruments are S.I. 1980/1975 , S.I . 1982/1738.

F23 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.

F35Words in reg. 2(4)(b) substituted (18.10.99) by S.I. 1999/2860, Sch. 7, para. 2, reg.1

[F39Persons who are entitled to disability living allowance: effect of move to ScotlandE+W+S

2ZA.—(1) This regulation applies where a relevant DLA entitled person becomes permanently resident in Scotland on or after 7th July 2023.

(2) In this regulation “relevant DLA entitled person” means a person who, at the end of the day preceding the residence change date—

(a)is entitled to disability living allowance,

(b)is, or in accordance with regulation 2(2), (2A) or (3B) is treated for the purposes of regulation 2(1)(a)(ii) as, present in England and Wales, and

(c)is under the age of 16 or satisfies both the status condition and the award condition.

(3) The relevant DLA entitled person is to be treated as satisfying the condition in regulation 2(1)(a)(ii) for the duration of the run-on period.

(4) If—

(a)the relevant DLA entitled person has an award of any component of disability living allowance which is for a fixed term period, and

(b)the fixed term period is due to expire before the end of the run-on period,

the fixed term period is extended so that it expires at the end of the run-on period.

Textual Amendments

Persons with an ongoing claim for disability living allowance: effect of move to ScotlandE+W+S

2ZB.—(1) This regulation applies where a new DLA claimant has an ongoing claim for disability living allowance on the residence change date.

(2) For the purposes of this regulation—

(a)“new DLA claimant” means a person who—

(i)does not have an award of disability living allowance,

(ii)makes a claim for disability living allowance and is under the age of 16 on the date on which they make that claim (“the claim date”),

(iii)is, or in accordance with regulation 2(2), (2A) or (3B) is treated for the purposes of regulation 2(1)(a)(ii) as, present in England and Wales on the claim date,

(iv)becomes permanently resident in Scotland after the claim date and on or after 7th July 2023, and

(v)is, or in accordance with regulation 2(2), (2A) or (3B) is treated for the purposes of regulation 2(1)(a)(ii) as, present in England and Wales at the end of the day preceding the residence change date;

(b)a new DLA claimant has an ongoing claim for disability living allowance on the residence change date if their claim for disability living allowance has not—

(i)been decided by the Secretary of State under section 8 of the 1998 Act before that date,

(ii)been withdrawn in accordance with regulation 5(2) of the Claims and Payments Regulations before that date, or

(iii)otherwise ceased, before that date, to be under consideration before being decided by the Secretary of State under section 8 of the 1998 Act.

(3) The Secretary of State must make a decision under section 8 of the 1998 Act on the new DLA claimant’s claim for disability living allowance, unless the new DLA claimant withdraws the claim in accordance with regulation 5(2) of the Claims and Payments Regulations.

(4) For the purposes of the Secretary of State making such a decision, regulation 2 applies as if the amendments made to that regulation by the Scotland Act 2016 (Social Security) (Disability Living Allowance) (Amendment) Regulations 2023 had not been made.

(5) If the Secretary of State determines that the new DLA claimant is entitled to disability living allowance—

(a)the new DLA claimant is to be treated as satisfying the condition in regulation 2(1)(a)(ii) until the end of the transfer day, and

(b)if—

(i)the new DLA claimant has an award of any component of disability living allowance which is for a fixed term period, and

(ii)the fixed term period is due to expire before the end of the transfer day,

the fixed term period is extended so that it expires at the end of the transfer day.

(6) In this regulation—

(a)“the transfer day”, in relation to a person, means—

(i)the final day of the run-on period, or

(ii)if earlier, the day preceding the day on which the person’s entitlement to Child Disability Payment begins in accordance with regulation 24 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021;

(b)any reference to the date on which a person makes a claim for disability living allowance (however expressed) is to be construed in accordance with regulation 6 of the Claims and Payments Regulations.]

Textual Amendments

[F40 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 F41....

(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 F42... 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 F43...; or

(ii)Switzerland;

(b) a relevant EU Regulation applies; and

(c)the person can demonstrate a genuine and sufficient link to the United Kingdom F44....]

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] [F50; [F51...]]

[F52(f)leave to enter or remain in the United Kingdom granted under or outside the immigration rules [F53, a right] [F54a right] of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 [F55or does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act,] [F56, 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][F57; [F58...]

(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][F59, 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.]

[F60(1A) Regulation 2(1)(a)(i) shall not apply where [F61any sub-paragraph in paragraph (1)] applies to the person.]

[F62(2) For the purposes of this regulation “immigration rules” means the rules laid before Parliament under section 3(2) of the Immigration Act 1971.]

[F62(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, [F63if he is a person to whom paragraphs (2) and (3) apply.]

F64(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F65(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F66(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F67(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 [F68section 72](2)(a), or, as the case may be, section [F69section 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.

[F70(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

F63words in reg. 3(1) substituted (6.10.97) by reg. 2 of S.I. 1997/349, reg. 2, reg 1

F64Reg 3(1)(a) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F65Reg 3(1)(b) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F66Reg 3(1)(c) omitted (6.10.97) by S.I. 1997/349, reg. 2, reg. 1

F67Reg 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 [F71section 72](4)(a) of the Act, [F72£108.55;]

(b)the middle rate, payable in accordance with [F71section 72](4)(b) of the Act, [F73£72.65] and

(c)the lowest rate, payable in accordance with [F71section 72](4)(c) of the Act, [F74£28.70.]

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

(a)the higher rate, payable in accordance with [F75section 73](11)(a) of the Act, [F76£75.75] and

(b)the lower rate, payable in accordance with [F75section 73](11)(b) of the Act, [F77£28.70.]

Textual Amendments

Late claim by a person previously entitledE+W+S

F78 5 .  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F79Medical examination in prescribed circumstancesE+W+S

F805A.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

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

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

[F81Withholding of benefit in prescribed circumstancesE+W+S

F825B.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F81Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F82Reg. 5B revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

[F83Payment of withheld benefitE+W+S

F845C.]  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F83Reg. 5A-5C inserted (25.8.97) by S.I. 1997/1839, reg. 3, reg, 1

F84Reg. 5C revoked (18.10.99) by S.I. 1999/2860 Sch. 7, para 3

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