Statutory Instruments
SOCIAL SECURITY
Made
6th December 2005
Laid before Parliament
12th December 2005
Coming into force in accordance with regulation 1
The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred upon him by sections 113(1)(b), 123(1)(a), (d) and (e), 124(5), 130(4), 131(10), 135(1), 136(3), 137(1), 138(2) and (4) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 1992 M1, sections 5(1)(p), 73(1)(b) and 189(1), (4) and (5) of the Social Security Administration Act 1992 M2, sections 4(5) and 36(1), (2) and (4)(a) of the Jobseekers Act 1995 M3 and sections 2(3), (6) and (9), 3(8), 17(1) and 19(1) of the State Pension Credit Act 2002 M4.
The Social Security Advisory Committee has agreed that the proposals to make these Regulations should not be referred to it.
Marginal Citations
M11992 c. 4; sections 123(e) and 131 were substituted by the Local Government Finance Act 1992 (c. 14), Schedule 9, paragraphs 1(1) and 4 respectively; sections 137(1) and 138(4) are cited for the definition of “prescribed”.
M21992 c. 5; section 73(1) was amended by the Jobseekers Act 1995 (c. 18), Schedule 2, paragraph 49.
M42002 c. 16; section 17(1) is cited for the definition of “prescribed”.
1. These Regulations may be cited as the Social Security (Hospital In-Patients) Regulations 2005 and shall come into force for the purposes of—
(a)this regulation and regulations 2, 5, 7 and 8, on 10th April 2006,
(b)regulation 3—
(i)in so far as it relates to a particular beneficiary other than a beneficiary in receipt of incapacity benefit or severe disablement allowance, on 10th April 2006 if it is his day for payment or, if not, on his day for payment next following 10th April 2006 (“day for payment” has the same meaning as in regulation 22(3) of, and Schedule 6 to, the Social Security (Claims and Payments) Regulations 1987 M5),
(ii)in so far as it relates to a particular beneficiary in receipt of incapacity benefit or severe disablement allowance, on 10th April 2006,
(c)regulation 4, in so far as it relates to a particular beneficiary, on the first day of the first benefit week to commence for that beneficiary on or after 10th April 2006 (“benefit week” has the same meaning as in the Income Support (General) Regulations 1987 M6),
(d)regulation 6, in so far as it relates to a particular beneficiary, on the first day of the first benefit week to commence for that beneficiary on or after 10th April 2006 (“benefit week” has the same meaning as in the Jobseeker's Allowance Regulations 1996 M7), and
(e)regulation 9—
(i)in so far as it relates to a beneficiary specified in paragraphs (b) to (d), on the dates specified in those paragraphs for that beneficiary, and
(ii)otherwise, on 10th April 2006.
2.—(1) Paragraphs (2) and (3) apply where a beneficiary is entitled to an increase in benefit for an adult or child dependant under Part IV of the Social Security Contributions and Benefits Act 1992 M8.
(2) Where the beneficiary has received free in-patient treatment for a period of not less than 52 weeks, the increase shall not be payable unless the beneficiary applies to the Secretary of State to pay the increase on behalf of the beneficiary to—
(a)the dependant, or
(b)some other person who is approved by the Secretary of State and who satisfies the Secretary of State that he will apply the increase for the benefit of the dependant.
(3) Where both the beneficiary and the dependant are in-patients and each has received free in-patient treatment for a period of not less than 52 weeks, the increase shall not be payable unless the beneficiary applies to the Secretary of State to pay the increase on behalf of the beneficiary to—
(a)the dependant, or
(b)some other person who is approved by the Secretary of State and who satisfies the Secretary of State that he will apply the increase for the benefit of a child [F1of the beneficiary].
(4) For the purposes of this regulation, a person shall be regarded as receiving or having received free in-patient treatment for any period for which he is or has been maintained free of charge while undergoing medical or other treatment as an in-patient—
(a)in a hospital or similar institution under the National Health Service Act 1977 M9, the National Health Service (Scotland) Act 1978 M10 or the National Health Service and Community Care Act 1990 M11, or
(b)in a hospital or similar institution maintained or administered by the Defence Council,
and such a person shall for the purposes of sub-paragraph (a) be regarded as being maintained free of charge in a hospital or similar institution unless his accommodation and services are provided under section 65 of the National Health Service Act 1977, section 57 of the National Health Service (Scotland) Act 1978 M12 or paragraph 14 of Schedule 2 to the National Health Service and Community Care Act 1990.
(5) For the purposes of paragraph (4), a period during which a person is regarded as receiving or having received free in-patient treatment shall be deemed to begin on the day after the day on which he enters a hospital or similar institution referred to in that paragraph and to end on the day on which he leaves such a hospital or similar institution.
(6) For the purposes of this regulation—
(a)where an increase in a person's benefit is payable in respect of an adult or child dependant the increase shall be treated as a separate benefit, and
(b)where a beneficiary's spouse or civil partner (“dependant”) is temporarily absent from Great Britain for the purpose of being treated for incapacity which commenced before he left Great Britain the absence shall be disregarded for the purpose of determining whether the beneficiary is residing with the dependant and is entitled to an increase in benefit for him.
Textual Amendments
F1Words in reg. 2(3)(b) substituted (9.4.2006) by The Social Security (Miscellaneous Amendments) Regulations 2006 (S.I. 2006/588), regs. 1(6), 7
Marginal Citations
M8Part IV provisions for increases in benefit for child dependants were revoked by the Tax Credits Act 2002 (c. 21), section 1(3)(e) and Schedule 6, subject to savings and transitional provisions under section 62.
M12Section 57 was substituted for sections 57 and 58 by the Health and Medicines Act 1988 (c. 49), section 7(11).
3. In the Social Security (General Benefit) Regulations 1982 M13, in regulation 2 (exceptions from disqualifications from imprisonment etc.)—
(a)in paragraph (3) M14 for sub-paragraphs (a) and (b) substitute—
“(a)he is detained or liable to be detained under section 45A of the Mental Health Act 1983 M15 (hospital and limitation directions) or section 59A of the Criminal Procedure (Scotland) Act 1995 M16 (hospital direction); or
(b)he is detained or liable to be detained under section 47 of the Mental Health Act 1983 M17 (removal to hospital of persons serving sentences of imprisonment, etc.) or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment for mental disorder).”,
(b)in paragraph (4)—
(i)for “each of the conditions specified in paragraph (3)(a) and (b)” substitute “ paragraph (3)(a) or (b) ”, and
(ii)for “for the Home Department or the Secretary of State for Scotland and furnished to the Secretary of State for Social Services” substitute “ or Scottish Ministers ”, and
(c)in paragraph (8) omit sub-paragraphs (e) and (f).
Marginal Citations
M14Paragraph (3) was amended by S.I. 2005/2878.
M151983 c. 20; section 45A was inserted by the Crime (Sentences) Act 1997 (c. 43), section 46, and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39 and Schedule 37, Part 7.
M161995 c. 46; section 59A was inserted by the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp13), Schedule 4, paragraph 8(6).
M17Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).
4.—(1) The Income Support (General) Regulations 1987 are amended as follows.
(2) In regulation 21 (special cases)—
(a)omit paragraph (2) (periods for which a person has been a patient), and
(b)in paragraph (3) (interpretation) in the definition of “patient”, for “the Social Security (Hospital In-Patients) Regulations 1975” substitute “ regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 M18 ”.
(3) In Schedule 2 (applicable amounts), in paragraph 12(1) (additional condition for the Higher Pensioner and Disability Premiums)—
(a)in sub-paragraph (b)(ii)(bb) M19 before “364 days” insert “ subject to paragraphs 2A and 2B of Schedule 7, ”, and
(b)in sub-paragraph (d) M20 for “1(a), (b), (c)(ii) or (d)(ii)” substitute “ 2A or 2B ”.
(4) In Schedule 3 M21 (housing costs), in paragraph 18(7) (non-dependant deductions) in sub—paragraph (g) M22 for heads (i) and (ii) substitute—
“(i)“patient” has the meaning given in paragraph 3(13)(b) and “prisoner” has the meaning given in regulation 21(3); and
(ii)in calculating a period of 52 weeks as a patient, any two or more distinct periods separated by one or more intervals each not exceeding 28 days shall be treated as a single period; or”.
(5) In Schedule 7 (applicable amounts in special cases)—
(a)under the heading “Patients”, omit paragraphs 1 and 2 in columns (1) and (2),
(b)for paragraph 2A M23 substitute—
(i)in column (1)—
“2A. A claimant who is detained, or liable to be detained, under—
(a)section 45A of the Mental Health Act 1983 M24 (hospital and limitation directions) or section 59A of the Criminal Procedure (Scotland) Act 1995 M25 (hospital direction); or
(b)section 47 of the Mental Health Act 1983 M26 (removal to hospital of persons serving sentences of imprisonment, etc.) or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment for mental disorder),
but not if his detention continues after the date which the Secretary of State certifies or Scottish Ministers certify would have been the earliest date on which he could have been released in respect of, or from, the prison sentence if he had not been detained in hospital.”, and
(ii)in column (2) “2A. Nil.”, and
(c)after paragraph 2A—
(i)in column (1) insert “ 2B. Subject to paragraph 2A, a single claimant who has been a patient for a continuous period of more than 52 weeks or, where the claimant is one of a couple, the other member of the couple has been a patient for a continuous period of more than 52 weeks. ”, and
(ii)in column (2) insert “ 2B. The amount applicable under regulation 17(1) less any amount applicable by virtue of paragraphs 10 or 11 and 12, or paragraph 13A of Schedule 2. ”.
(6) In Schedule 9 (sums to be disregarded in the calculation of income other than earnings) omit paragraph 38 M27 (transitional resettlement benefit for patients).
Marginal Citations
M19Sub-paragraph (b) was substituted by S.I. 1995/482 and amended by S.I. 1995/2303.
M20Sub-paragraph (d) was amended by S.I. 2002/3019 and 2004/1141.
M21Schedule 3 was substituted by S.I. 1995/1613.
M22Sub-paragraph (g) was amended by S.I. 2003/1195 and 2004/2327.
M23Paragraph 2A was inserted by S.I. 1990/547 and amended by S.I. 1998/563 and 2005/522.
M241983 c. 20; section 45A was inserted by the Crime (Sentences) Act 1997 (c. 43), section 46, and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39 and Schedule 37, Part 7.
M251995 c. 46; section 59A was inserted by the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp13), Schedule 4, paragraph 8(6).
M26Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).
M27Paragraph 38 was added by S.I. 1988/663.
[F25.—(1) In regulation 22(5) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 and regulation 12(5) of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (applicable amounts) in the definition of “patient” for “the Social Security (Hospital In-Patients) Regulations 1975” substitute “ regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 ”.
(2) In regulation 28(11)(e) of the Housing Benefit Regulations 2006 and regulation 18(11)(e) of the Council Tax Benefit Regulations 2006, (treatment of child care charges) for “the Social Security (Hospital In-Patients) Regulations 1975” substitute “ regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 ”.]
Textual Amendments
F2Reg. 5 substituted (6.3.2006) by The Housing Benefit and Council Tax Benefit (Consequential Provisions) Regulations 2006 (S.I. 2006/217), reg. 1(1), Sch. 2 para. 30(1) (with regs. 2, 3, Sch. 3, Sch. 4)
6.—(1) The Jobseeker's Allowance Regulations 1996 M28 are amended as follows.
(2) In regulation 85 (special cases)—
(a)omit paragraph (3) (periods for which a person has been a patient), and
(b)in paragraph (4) (interpretation), in the definition of “patient”, for “the Social Security (Hospital In-Patients) Regulations 1975” substitute “ regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 M29 ”.
(3) In regulation 86C M30 (joint-claim couples: special cases) omit paragraph (3) (periods for which a person has been a patient).
(4) In Schedule 2 (housing costs) in paragraph 17(7) (non-dependant deductions) in sub-paragraph (g) M31 for heads (i) and (ii) substitute—
“(i)“patient” has the meaning given in paragraph 3(13)(b) and “prisoner” has the meaning given in regulation 85(4), and
(ii)in calculating any period of 52 weeks as a patient, any two or more distinct periods separated by one or more intervals each not exceeding 28 days shall be treated as a single period; or”.
(5) In Schedule 5 (applicable amounts in special cases)—
(a)omit paragraph 1 in columns (1) and (2) and the heading to paragraph 1 “Person other than claimant who is a patient”, and
(b)after paragraph 1—
(i)insert the heading “Claimant who is a patient”,
(ii)in column (1) insert “1A. A claimant who has been a patient for a continuous period of more than 52 weeks.”, and
(iii)in column (2) insert “ 1A. The amount applicable under regulation 83 less any amount applicable by virtue of paragraphs 12 or 13 and 14, or paragraph 15A of Schedule 1. ”.
(6) In Schedule 5A M32 (applicable amounts of joint-claim couples in special cases)—
(a)omit paragraph 1 in columns (1) and (2), and
(b)under the heading “Patients”—
(i)in column (1) insert “ 1A. A claimant who has been a patient for a continuous period of more than 52 weeks. ”, and
(ii)in column (2) insert “ 1A. The amount applicable under regulation 86A less any amount applicable by virtue of paragraphs 20F or 20G and 20H, or paragraph 20IA of Schedule 1. ”.
Marginal Citations
M30Regulation 86C was inserted by S.I. 2000/1978 and amended by 2004/565.
M31Sub-paragraph (g) was amended by S.I. 2003/1195 and 2004/2327.
M32Schedule 5A was inserted by S.I. 2000/1978.
7. In the Social Fund Winter Fuel Payment Regulations 2000 M33, in regulation 1(2) (interpretation), in the definition of “free in-patient treatment” for “2(2) of the Social Security (Hospital In-Patients) Regulations 1975” substitute “ 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 M34 ”.
8.—(1) The State Pension Credit Regulations 2002 M35 are amended as follows.
(2) In regulation 1(2) (interpretation), for the definition of “patient” substitute— “ “patient”, except in Schedule II, means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 M36; ”.
(3) In regulation 15 (income for the purposes of the Act), in paragraph (4), for sub-paragraph (b) substitute—
“(b)regulation 2 of the Social Security (Hospital In-Patients) Regulations 2005 M37;”.
(4) In Schedule 2 (housing costs)—
(a)in paragraph 1(2)(a), in the definition of “disabled person”, in sub-paragraph (iii)(bb) M38 for “any provision of the Social Security (Hospital In-Patients) Regulations 1975” substitute “ suspension or abatement because the person becomes a patient ”, and
(b)in paragraph 14(7)(e) M39 (persons residing with the claimant: non-dependant deductions), for “a patient” substitute “ an in-patient residing in a hospital or similar institution ”.
(5) In Schedule 3 (special groups), under the heading “further provisions in the case of patients” for paragraph 2 substitute—
“2.—(1) Sub-paragraph (2) applies in the case of a claimant who is detained, or liable to be detained, under—
(a)section 45A of the Mental Health Act 1983 M40 (hospital and limitation directions) or section 59A of the Criminal Procedure (Scotland) Act 1995 M41 (hospital direction); or
(b)section 47 of the Mental Health Act 1983 M42 (removal to hospital of persons serving sentences of imprisonment, etc.) or section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment for mental disorder),
but not if his detention continues after the date which the Secretary of State certifies or Scottish Ministers certify would have been the earliest date on which he could have been released in respect of, or from, the prison sentence if he had not been detained in hospital.
(2) In the case of a claimant to whom paragraph (1) applies—
(a)section 2(3) has effect with the substitution of a reference to a nil amount for the reference to the standard minimum guarantee in paragraph (a); and
(b)the maximum amount of savings credit shall be taken to be nil.”.
Marginal Citations
M38Head (iii) was amended by S.I. 2002/3197.
M39Sub-paragraph (e) was amended by S.I. 2003/1195.
M401983 c. 20; section 45A was inserted by the Crime (Sentences) Act 1997 (c. 43), section 46, and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39 and Schedule 37, Part 7.
M411995 c. 46; section 59A was inserted by the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp13), Schedule 4, paragraph 8(6).
M42Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).
9.—(1) The Social Security (Hospital In-Patients) Regulations 1975 M43 shall be revoked.
(2) The provisions in the subordinate legislation set out in the Schedule shall be revoked.
Marginal Citations
Signed by authority of the Secretary of State for Work and Pensions.
Stephen C. Timms
Minister of State,
Department for Work and Pensions
Regulation 9
| Subordinate legislation revoked | References | Extent of revocation |
|---|---|---|
| The Social Security (Hospital In-Patients) Amendment Regulations 1977 | S.I. 1977/1693 | The whole of the Regulations |
| The Social Security (Hospital In-Patients) Amendment Regulations 1979 | S.I. 1979/223 | The whole of the Regulations |
| The Social Security (Abolition of Injury Benefit) (Consequential) Regulations 1983 | S.I. 1983/186 | Regulation 4 |
| The Social Security (Severe Disablement Allowance) Regulations 1984 | S.I. 1984/1303 | In Schedule 2, the entry relating to the Social Security (Hospital In-Patients) Regulations 1975 |
| The Social Security (Dependency, Claims and Payments and Hospital In-Patients) Amendment Regulations 1984 | S.I. 1984/1699 | Regulation 2 |
| The Social Security (Claims and Payments, Hospital In-Patients and Maternity Benefit) Amendment Regulations 1986 | S.I. 1986/903 | Regulation 3 |
| The Social Security (Hospital In-Patients) Amendment Regulations 1987 | S.I. 1987/31 | The whole of the Regulations |
| The Social Security (Hospital In Patients) Amendment (No. 2) Regulations 1987 | S.I. 1987/1683 | The whole of the Regulations |
| The Income Support (General) Amendment No. 4 Regulations 1988 | S.I. 1988/1445 | Regulation 23(a) |
| The Income Support (General) Amendment Regulations 1990 | S.I. 1990/547 | Regulation 21(a) and (b) |
| The Social Security (Miscellaneous Provisions) Amendment (No. 2) Regulations 1992 | S.I. 1992/2595 | Regulation 11 |
| The Child Benefit, Child Support and Social Security (Miscellaneous Amendments) Regulations 1996 | S.I. 1996/1803 | Regulation 40(a) |
| The Social Security (Miscellaneous Amendments) Regulations 1998 | S.I. 1998/563 | Regulation 8(2)(c)(ii) and (3) |
| The Social Security (Hospital In-Patients, Attendance Allowance and Disability Living Allowance) (Amendment) Regulations 1999 | S.I. 1999/1326 | Regulation 2 |
| The Social Security (Benefits for Widows and Widowers) (Consequential Amendments) Regulations 2000 | S.I. 2000/1483 | Regulation 2 |
| The State Pension Credit (Consequential, Transitional and Miscellaneous Provisions) Regulations 2002 | S.I. 2002/3019 | Regulation 23(m)(ii) |
| The State Pension Credit (Consequential, Transitional and Miscellaneous Provisions) (No. 2) Regulations 2002 | S.I. 2002/3197 | In the Schedule, paragraph 10(b) |
| The Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendments) Regulations 2003 | S.I. 2003/455 | In Schedule 1, paragraph 21(a) to (c) |
| The Social Security (Hospital In-Patients and Miscellaneous Amendments) Regulations 2003 | S.I. 2003/1195 | Regulations 2 to 6 and 8 to 10 |
| The Social Security (Third Party Deductions and Miscellaneous Amendments) Regulations 2003 | S.I. 2003/2325 | Regulation 3(b) |
| The Social Security (Hospital In-Patients) Amendment Regulations 2004 | S.I. 2004/101 | The whole of the Regulations |
| The Social Security (Miscellaneous Amendments) Regulations 2004 | S.I. 2004/565 | Regulation 6(2)(c) |
| The Civil Partnership (Pensions, Social Security and Child Support) (Consequential, etc. Provisions) Order 2005 | S.I. 2005/2877 | In Schedule 3, paragraph 3 |
(This note is not part of the Regulations)
These Regulations revoke the Social Security (Hospital In-Patients) Regulations 1975 (“the 1975 Regulations”) and amend other regulations so that, except in specified cases, a person's benefit is no longer adjusted when the person has been receiving free medical treatment as a hospital in-patient for 52 weeks.
Regulation 2 saves provisions in the 1975 Regulations which remove or transfer any increase in benefit for an adult dependant if the beneficiary, or the beneficiary and dependant, have received free medical treatment as a hospital in-patient for 52 weeks or more.
Regulation 3 extends provisions in the Social Security (General Benefit) Regulations 1982 which disqualify claimants from receiving certain contributory and non-contributory benefits if they are sentenced to a period of imprisonment and during that period they are detained in hospital under mental health legislation. It updates the references to mental health legislation.
Regulation 4 amends the Income Support (General) Regulations 1987. Paragraph (2) abolishes, for most purposes, the rule that absences from hospital of up to 28 days are ignored when calculating a 52 week period as an in-patient; but paragraph (4) maintains the rule for stopping non-dependant deductions when the non-dependant has been a hospital in-patient for 52 weeks. Paragraph (5)(a) abolishes, for most cases, the adjustment of income support when a claimant has received free medical treatment as a hospital in-patient for 52 weeks. But if the claimant is entitled to a disability premium, enhanced disability premium or higher pensioner premium, paragraph (5)(c) removes entitlement to the premium after 52 weeks as such an in-patient. Paragraph (5)(b) provides for a nil applicable amount of income support in the circumstances specified by regulation 3 for other benefits.
Regulation 5 makes consequential amendments to the Housing Benefit (General) Regulations 1987 and the Council Tax Benefit (General) Regulations 1992.
Regulation 6 mirrors for jobseeker's allowance the provisions made for income support by regulation 4(2), (4) and (5)(a) and (c).
Regulation 7 makes a consequential amendment to the Social Fund Winter Fuel Payment Regulations 2000.
Regulation 8 makes consequential amendments to the State Pension Credit Regulations 2002 and mirrors the provisions made for income support by regulation 4(2) and (5)(a) and (b).
Regulation 9 revokes the 1975 Regulations and other regulations.
A full regulatory impact assessment has not been provided for this instrument as it has no impact on the costs of businesses, charities and voluntary bodies.