PART 4E+W+SResidence and presence conditions

Conditions relating to residence and presence in Great BritainE+W+S

16.  Subject to the following provisions of this Part, the prescribed conditions for the purposes of section 77(3) of the Act as to residence and presence in Great Britain are that on any day for which C claims personal independence payment C—

(a)is present in Great Britain;

(b)has been present in Great Britain for a period of, or periods amounting in aggregate to, not less than 104 weeks out of the 156 weeks immediately preceding that day;

(c)is habitually resident in the United Kingdom, the Republic of Ireland, the Isle of Man or the Channel Islands; and

(d)is a person–

(i)who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 F1; or

(ii)to whom, by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 F2, section 115 of that Act does not apply for the purpose of personal independence payment.

Textual Amendments

F11999 c.33. Section 115 was amended by the Act, Schedule 9, paragraph 44. There are other amendments not relevant to these Regulations.

F2Regulation 2 was amended by S.I. 2013/388. There are other amendments not relevant to these Regulations.

Commencement Information

I1Reg. 16 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Absence from Great BritainE+W+S

17.—(1) Where C is temporarily absent from Great Britain, C is treated as present in Great Britain for the purposes of regulation 16(a) and (b) for the first 13 weeks of absence.

(2) C is temporarily absent if, at the beginning of the period of absence, C's absence is unlikely to exceed 52 weeks.

Commencement Information

I2Reg. 17 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Absence from Great Britain to receive medical treatmentE+W+S

18.—(1) Where C is temporarily absent from Great Britain, C is treated as present in Great Britain for the purposes of regulation 16(a) and (b) for the first 26 weeks of that absence, where—

(a)C's absence is solely in connection with arrangements made for the medical treatment of C for a disease or bodily or mental disablement which commenced before C left Great Britain; and

(b)the arrangements referred to in paragraph (1)(a) relate to medical treatment –

(i)outside Great Britain;

(ii)during the period whilst C is temporarily absent from Great Britain; and

(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment.

(2) In this regulation, “temporarily absent” has the same meaning as in regulation 17(2).

Commencement Information

I3Reg. 18 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Absence from Great Britain in special casesE+W+S

19.—(1) Where C is absent from Great Britain, C is treated as present in Great Britain for the purposes of regulation 16(a) and (b), where —

(a)C is abroad in the capacity of–

(i)a member of Her Majesty's forces;

(ii)an aircraft worker; or

(iii)a mariner; or

(b)C is in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992 F3 in connection with continental shelf operations; or

(c)C is living with a person mentioned in paragraph (a)(i) 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.

(2) In this regulation and in regulation 20, “a member of Her Majesty's forces” means a member of “the regular forces” or “the reserve forces” as defined in section 374 of the Armed Forces Act 2006 F4, other than a person who is specified in Schedule 2, who is–

(a)over the age of 16; and

(b)not absent on desertion.

(3) In this regulation—

“aircraft worker” means a person who is employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where–

(a)

the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mail carried on that aircraft; and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,

but does not include a person who is in employment as a member of Her Majesty's forces;

“mariner” means a person who is in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where –

(a)

the employment in that other capacity is for the purposes of that ship or vessel or the crew or any passengers or cargo or mail carried by the ship or vessel; and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on voyage,

but does not include a person who is in employment as a member of Her Majesty's forces.

Textual Amendments

F31992 c.4. Section 120(2) was amended by the Social Security Act 1998, section 86(1) and Schedule 7, paragraph 70, the Petroleum Act 1998 (c.17), Schedule 4, paragraph 30 and the Social Security Contributions (Transfer of Functions, etc.) Act 1999, Schedule 3, paragraph 26 and Schedule 7, paragraph 8.

F42006 c.52. There are amendments to section 374 not relevant to these Regulations.

Commencement Information

I4Reg. 19 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Serving members of Her Majesty's forces and their family members – further provisionE+W+S

20.  C is treated as habitually resident in Great Britain for the purposes of regulation 16(c) where—

(a)C is resident outside Great Britain in the capacity of a member of Her Majesty's forces; or

(b)C 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.

Commencement Information

I5Reg. 20 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Terminal illnessE+W+S

21.  Where C is terminally ill and makes a claim for personal independence payment expressly on that ground, regulation 16 applies as if paragraph (b) were omitted.

Commencement Information

I6Reg. 21 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Persons residing in Great Britain to whom a relevant EU Regulation appliesE+W+S

22.  Regulation 16(b) does not apply in relation to a claim for personal independence payment where on any day–

(a)C is habitually resident in Great Britain;

(b)a relevant EU Regulation F5 applies; and

(c)C can demonstrate a genuine and sufficient link to the United Kingdom social security system.

Textual Amendments

F5See section 84(2) of the Act for the meaning of ‘relevant EU Regulation’.

Commencement Information

I7Reg. 22 coming into force in accordance with reg. 1(2) and S.I. 2013/358

Persons residing in an EEA state F6... or in Switzerland to whom a relevant EU Regulation appliesE+W+S

23.  Regulation 16(a) to (c) does not apply in relation to entitlement to the daily living component of personal independence payment where on any day—

(a)C is habitually resident in–

(i)an EEA stateF7...; or

(ii)Switzerland;

(b)a relevant EU Regulation applies; and

(c)C can demonstrate a genuine and sufficient link to the United Kingdom social security system.

Textual Amendments

Commencement Information

I8Reg. 23 coming into force in accordance with reg. 1(2) and S.I. 2013/358

[F8Persons in receipt of an equivalent Scottish benefit who move from Scotland to England or WalesE+W+S

23ZA.—[F9(1)] Where regulation 36(1) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021 applies to C, regulation 16(c) of these Regulations is treated as not satisfied for the period set out in regulation 36(1) of those Regulations.]

[F10(2) Where regulation 53(1) of the Disability Assistance for Working Age People (Scotland) Regulations 2022 applies to C, regulation 16(c) of these Regulations is treated as not satisfied for the period set out in regulation 53(1) of those Regulations.]

Textual Amendments

F9Reg. 23ZA(1): reg. 23ZA renumbered as reg. 23ZA(1) (coming into force in accordance with reg. 1(1) of the amending S.I.) by The Scotland Act 2016 (Social Security) (Adult Disability Payment and Child Disability Payment) (Amendment) Regulations 2022 (S.I. 2022/335), reg. 7

[F11[F12Refugees and certain persons with leave to enter or remain in the United Kingdom]]E+W+S

23A.—(1) Regulation 16(b) does not apply in relation to a claim for personal independence payment where C has—

(a)been granted refugee status or humanitarian protection under the immigration rules; F13F14...

(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.

[F15(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); [F16or]

(e)leave granted under the Afghan Citizens Resettlement Scheme [F17or]

(f)leave to enter or remain in the United Kingdom granted under or outside the immigration rules, or a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971, where C—

(i)was residing in Ukraine immediately before 1 January 2022, and

(ii)left Ukraine in connection with the Russian invasion which took place on 24 February 2022]

[F18(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), [F19or]

(e)leave granted under the Afghan Citizens Resettlement Scheme.]

[F20(f)leave to enter or remain in the United Kingdom granted under or outside the immigration rules or a right of abode in the United Kingdom within the meaning given in section 2 of the Immigration Act 1971 where C—

(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.]

[F21(1A) Regulation 16(c) does not apply in relation to a claim for personal independence payment where paragraph [F22(1)(c), (d) or (e)] [F22any sub-paragraph in paragraph (1)] applies to C.]

[F23(1A) Regulation 16(c) does not apply in relation to a claim for personal independence payment where [F24paragraph (1)(c), (d) or (e)] [F24any sub-paragraph in paragraph (1)] applies to C.]

[F25(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