The Social Security (Disability Living Allowance) Regulations 1991

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