PART VII AMOUNTS
Special cases85.
(1)
In the case of a person to whom any paragraph in column (1) of Schedule 5 applies (applicable amounts in special cases) the amount included in the claimant’s weekly applicable amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule but excluding an amount for a child or young person whose F1capital, if calculated in accordance with Part VIII in like manner as for the claimant, would exceed £3,000, but including an amount for a child or young person whose capital falls to be treated as income in accordance with regulation 106 (1) (modification in respect of children and young persons).
(2)
Except where the amount prescribed in Schedule 5 in respect of a person to whom paragraph (1) applies includes an amount applicable under regulation 83(e) or 84(1)(f) a person to whom paragraph (1) applies shall be treated as not falling within the conditions specified in paragraph 15 of Schedule 1 (severe disability premium).
(3)
In Schedule 5, for the purposes of paragraphs 1, 2 and 17 (persons in residential care or nursing homes who become patients), where a person has been a patient for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been a patient continuously for a period equal in duration to the total of those distinct periods.
(4)
F2Subject to paragraph (4A), In this regulation and Schedule 5–
“person from abroad" means a person, who–
(a)
has a limited leave as defined in section 33(1) of the Immigration Act 1971 F3 (hereinafter referred to as “the 1971 Act") to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on F411th December 1953) or a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), unless, in the case of a national of a state which is a signatory of that European Convention, he has made an application for the conditions of his leave to remain in the United Kingdom to be varied, and that application has not been determined or an appeal from that application is pending under Part II of the 1971 Act (appeals); or
(b)
having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or
(c)
is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or
(d)
is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or
(e)
has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or
(f)
has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or
(g)
has not had his immigration status determined by the Secretary of State; or
(h)
is a national of a Member State and is required by the Secretary of State to leave the United Kingdom F5or;
has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; or
(j)
while he is a person to whom any of the definitions in sub-paragraphs (a) to (i) applies in his case, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention;
F6and for the purposes of this definition “the immigration authorities” means an adjudicator, an immigration officer or an immigration appeal tribunal appointed for the purposes of the Immigration Act 1971 and in addition means the Secretary of State.
“person from abroad" also means a claimant who is not habitually resident in the F7the Channel Islands, the Isle of Man or the Republic of Ireland, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is—
(a)
a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or
(b)
a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 , as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967 ; or
(c)
a person who has been granted exceptional leave F8to enter the United Kingdom by an immigration officer within the meaning of the Immigration Act 1971, or to remain in the United Kingdom by the Secretary of State;
“patient" means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975 ;
“prisoner" means a person who—
(a)
is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or
(b)
is on temporary release in accordance with the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989 ,
other than a person F9who is detained in hospital under the provisions of the Mental Health Act 1983 , or, in Scotland, under the provisions of the Mental Health (Scotland) Act 1984 or the Criminal Procedure (Scotland) Act 1995,
“residential accommodation" means, subject to the following provisions of this regulation, accommodation provided by a local authority in a home owned or managed by that or another local authority—
(a)
under sections 21 to 24 of the National Assistance Act 1948 (provision of accommodation); or
(b)
in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968 (provision of residential and other establishments); or
(c)
under section 7 of the Mental Health (Scotland) Act 1984 (functions of local authorities),
where the accommodation is provided for a person whose stay in that accommodation has become other than temporary.
F10(4A)
In paragraph (4) “person from abroad” does not include any person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.
F11(5)
A person shall continue to be treated as being in residential accommodation within the meaning of paragraph (4) if—
(a)
he is in, or only temporarily absent from, such residential accommodation, and the same accommodation subsequently becomes a residential care home for so long as he remains in that accommodation; or
(b)
on 31st March 1993 he was in, or only temporarily absent from, accommodation of a kind mentioned in regulation 21(3B) to (3E) of the Income Support Regulations.
(6)
A person who would, but for this paragraph, be in residential accommodation within the meaning of paragraph (4) shall be treated as not being in residential accommodation where—
(a)
he is under the age of 18 and in the care of a local authority under Part II or III of the Social Work (Scotland) Act 1968 (promotion of social welfare of children in need of care); or
(b)
except where he is a person to whom paragraph (5)(b) applies, he is in accommodation where—
(i)
no cooked or prepared food is made available to him in consequence solely of his paying the charge for the accommodation or any other charge which he is required to pay as a condition of occupying the accommodation, or both of those charges, or
(ii)
such food is actually made available for his consumption on payment of a further charge or charges.