The Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Amendment) Regulations 2013

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend three sets of regulations affecting the benefits known as Carer’s Allowance (“CA”), Attendance Allowance (“AA”) and Disability Living Allowance (“DLA”) (the “disability benefits”).

The sets of regulations that are amended are the Social Security (Invalid Care Allowance) Regulations 1976 (S.I. 1976/409) (the “CA regulations”), Social Security (Attendance Allowance) Regulations 1991 (S.I. 1991/2740) (the “AA regulations”) and Social Security (Disability Living Allowance) Regulations 1991 (S.I. 1991/2890) (the “DLA regulations”). They:-

• change the residence and presence conditions for the disability benefits so that they align with the conditions that are being introduced for Personal Independence Payment – the benefit under Part 4 of the Welfare Reform Act 2012 that will replace DLA for people of working age. Under the revised conditions:-

  • the test of ordinary residence is changed to habitual residence;

  • the past presence test is altered so that a period of presence in Great Britain of 104 out of the past 156 weeks is required before entitlement can be established to any of the disability benefits;

  • for DLA and AA, the temporary absence rule is reduced to 13 weeks and the rule for temporary absence for medical reasons is reduced to a maximum of 26 weeks;

  • for DLA and AA, serving members of the armed forces are treated as being habitually resident in Great Britain when they are serving and stationed abroad; and

  • as a result of a judgment in the European Court of Justice in July 2011 in the case of Lucy Stewart v Secretary of State for Work and Pensions a reference has been added to the “genuine and sufficient link” for those arriving in Great Britain from another EEA state or Switzerland or moving abroad to one of those states;

• revoke regulation 9(6)(f) of the DLA regulations and regulation 7(3)(f) of the AA regulations, which provided that services provided to a resident of a care home pursuant to the National Health Service Act 2006, the National Health Service (Wales) Act 2006 or the National Health Service (Scotland) Act 1978 did not count as qualifying services. ‘Qualifying services’ are defined in section 72(8) of the Social Security Contributions and Benefits Act 1992 as accommodation, board and personal care;

• amend regulation 12B(7) of the DLA regulations, which provided that hospital in-patients with live Motability agreements were not subject to the hospitalisation rule (which stopped payment of the mobility component after 28 days in hospital – 84 days for a child under 16). The amendment provides that regulation 12B(7) is amended so that it no longer applies to any person who enters hospital after 8th April 2013. People with live Motabilty contracts who are hospital in-patients on or before 8th April 2013 will continue to be paid mobility component until their live Motability contract expires. The amendment also provides that after 8th April 2016 no person with a live Motability contract will be paid mobility component;

• update references in the DLA regulations and AA regulations to reflect the equivalent references in current legislation;

• provide that with effect from 6th December 2018, references in the DLA regulations to the upper age limit for claiming DLA (65 years old) will be read as references to “pensionable age” to reflect the equalisation of pensionable ages for men and women. “Pensionable age” in relation to this amendment has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995.

A full impact assessment has not been produced for this instrument as it has no impact on the private sector or civil society organisations.