The Social Security (Disability Living Allowance) Regulations 1991

Conditions as to residence and presence in Great Britain

2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 37ZA(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 ordinarily resident in Great Britain; 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; and

(b) where that day falls within a period in which that person–

(i) receives tax free emoluments, or

(ii) is the spouse of a person who receives tax free emoluments, or

(iii) is aged under 16 and is the son, daughter, step-son or step-daughter of a person who receives tax free emoluments,

that period is immediately preceded by a period of 4 years during which the person first mentioned in this sub-paragraph was present in Great Britain for not less than 156 weeks in aggregate.

(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 81 and 86 respectively of the Social Security (Contributions) Regulations 1979(1),

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 1979; or

(b) he is in employment prescribed for the purposes of section 132 of the Act in connection with continental shelf operations(2); or

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

(d) his absence from Great Britain is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 26 weeks; or

(e) his absence from Great Britain is temporary and for the specific purpose of his being treated for incapacity, or a disabling condition, which commenced before he left Great Britain, and the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of the foregoing condition in this sub-paragraph, he should be treated as though he were present in Great Britain.

(3) In paragraph (1)(b), the expression “tax free emoluments” means emoluments which are exempt from tax under any of the provisions listed in paragraph (1) of regulation 9 of the Child Benefit (General) Regulations 1976(3).

(4) Where a person is terminally ill and–

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

(b) an application is made for a review 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 26 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 26 weeks there was substituted a reference to 13 weeks.

(1)

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

(2)

Seeregulation 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.

(3)

S.I. 1976/965.