The Social Security (Disability Living Allowance and Personal Independence Payment) (Amendment) Regulations 2016

Statutory Instruments

2016 No. 556

Social Security

The Social Security (Disability Living Allowance and Personal Independence Payment) (Amendment) Regulations 2016

Made

3rd May 2016

Laid before Parliament

9th May 2016

Coming into force

29th June 2016

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 73(1)(b) and 189(1), (4) and (5) of the Social Security Administration Act 1992(1) and sections 86, 93 and 94(1), (2), (3)(a) and (4) of, and paragraphs 1(1) and 3(1)(a) and (c) of Schedule 10 to, the Welfare Reform Act 2012(2).

The Social Security Advisory Committee has agreed that proposals in respect of these Regulations need not be referred to it(3).

Citation and commencement

1.—(1) These Regulations may be cited as the Social Security (Disability Living Allowance and Personal Independence Payment) (Amendment) Regulations 2016.

(2) They come into force on 29th June 2016.

Amendment of the Social Security (Disability Living Allowance) Regulations 1991

2.—(1) The Social Security (Disability Living Allowance) Regulations 1991(4) are amended as follows.

(2) In regulation 8 (hospitalisation)—

(a) for the title, substitute “Hospitalisation of persons aged 18 or over”;

(b) in paragraph (1), after “Subject to” insert “paragraph (2B) and”;

(c) at the end add—

“(2B) This regulation does not apply to a person who was under the age of 18 on the day on which he entered the hospital or other similar institution referred to in paragraph (1) to begin his current period as an in-patient.”.

(3) In regulation 10 (exemption from regulation 8 and 9)—

(a) omit paragraph (2);

(b) in paragraph (3) omit “or, as the case may be, paragraph (2)”;

(c) in paragraph (5) for “paragraphs (1) and (2)” substitute “paragraph (1)”.

(4) In regulation 12A (hospitalisation in mobility component cases)—

(a) in the title, after “Hospitalisation” insert “of persons aged 18 or over”;

(b) in paragraph (1), after “Subject to” insert “paragraph (3) and”;

(c) at the end add—

“(3) This regulation does not apply to a person who was under the age of 18 on the day on which he entered the hospital or other similar institution referred to in paragraph (1) to begin his current period as an in-patient.”.

(5) In regulation 12B (exemption from regulation 12A)—

(a) omit paragraph (1)(b) and the word “or” preceding it;

(b) in paragraph (7), omit “or, as the case may be, paragraph (1)(b)”.

Amendment of the Social Security (Personal Independence Payment) Regulations 2013

3.  In regulation 29 (hospital in-patients) of the Social Security (Personal Independence Payment) Regulations 2013(5)—

(a) for the title, substitute “Hospital in-patients aged 18 or over”;

(b) in paragraph (1), after “Subject to” insert “paragraph (3) and”;

(c) at the end add—

“(3) This regulation does not apply if C was under the age of 18 on the day on which C entered the hospital or similar institution referred to in section 86(2) of the Act to begin C’s current period as an in-patient.”.

Amendment of the Personal Independence Payment (Transitional Provisions) Regulations 2013

4.—(1) The Personal Independence Payment (Transitional Provisions) Regulations 2013(6) are amended as follows.

(2) In regulation 2 (interpretation), in paragraph (1), after the definition of “electronic communication” insert—

““exempt person” means a DLA entitled person in respect of whom, by virtue of regulation 8(2B) or 12A(3) of the 1991 Regulations (person under the age of 18 on the day of entry into hospital), a disability living allowance is payable even though they are maintained free of charge while undergoing medical or other treatment as an in-patient in a hospital or other similar institution;”.

(3) In regulation 3 (invitations to persons entitled to disability living allowance to claim personal independence payment)—

(a) in paragraph (3) for “(3A) and (4)” substitute “(3A), (4) and (4A)”;

(b) after paragraph (4) insert—

“(4A) If the DLA entitled person referred to in paragraph (3) is an exempt person, the Secretary of State must not send the notification required by paragraph (3) until the DLA entitled person ceases to be an exempt person.”;

(c) in paragraph (5) for “paragraph (5A)” substitute “paragraphs (5A) and (5B)”;

(d) after paragraph (5A) insert—

“(5B) If the DLA entitled person referred to in paragraph (5) is an exempt person, the Secretary of State must not send the notification required by paragraph (5) until the DLA entitled person ceases to be an exempt person.”.

(4) In regulation 19 (general power to extend fixed term period awards of disability living allowance), in paragraph (1)(b), after “expire” insert “while the DLA entitled person is an exempt person to whom a notification cannot be sent by virtue of regulation 3(4A) or (5B), or”.

Signed by authority of the Secretary of State for Work and Pensions.

Justin Tomlinson

Parliamentary Under Secretary of State,

Department for Work and Pensions

3rd May 2016

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations, which come into force on the 29th June 2016, amend the Social Security (Disability Living Allowance) Regulations 1991 (S.I. 1991/2890) (“the DLA Regulations”), the Social Security (Personal Independence Payment) Regulations 2013 (S.I. 2013/377) (“the PIP Regulations”) and the Personal Independence Payment (Transitional Provisions) Regulations 2013 (S.I. 2013/387) (“the PIP Transitional Regulations”).

Regulations 8 and 12A of the DLA Regulations make it a requirement, for receipt of disability living allowance care component and mobility component respectively, that the person in respect of whom it is paid is not maintained free of charge while undergoing medical or other treatment as an in-patient in a National Health Service or Defence Council hospital or other similar institution. There is an equivalent provision in regulation 29 of the PIP Regulations.

The provisions in the DLA Regulations, which were the subject of the Supreme Court’s judgment in Cameron Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47 (8th July 2015), are amended by regulation 2(2) and (4) of these Regulations. The equivalent provision in the PIP Regulations is amended by regulation 3 of these Regulations. The effect is that these provisions will no longer apply to any person who was under the age of 18 on the day on which they entered the hospital or other similar institution to begin their current period as an in-patient.

Regulation 2(3) and (5) of these Regulations make consequential amendments to regulations 10 and 12B of the DLA Regulations, in particular to remove the current exemptions for persons under the age of 16. The current exemptions are more limited than those provided by these Regulations, as they apply only for the first 84 days in hospital, and do not apply if the person was in hospital on the first day of entitlement. No equivalent consequential amendments are required to the PIP Regulations because they do not apply to persons under the age of 16.

Regulation 4 of these Regulations amends the PIP Transitional Regulations. Paragraph (2) inserts a new definition of “exempt person”, covering a person who benefits from these Regulations. Paragraph (3) ensures that an exempt person must not be invited to apply for a personal independence payment until they cease to be an exempt person. Paragraph (4) ensures that their award of a disability living allowance may, instead, be extended if the award of either component is for a fixed term.

An impact assessment has not been published for this instrument as it has no impact on business or civil society organisations.

(1)

1992 c.5 (“the 1992 Act”). A relevant amendment was made to section 73(1) by paragraph 49(2)(b) of Schedule 2 to the Jobseekers Act 1995 (c. 18). Relevant amendments were made to section 189 by paragraph 109(a) of Schedule 7 to the Social Security Act 1998 (c. 14), paragraph 57(1) and (2) of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2) and Schedule 6 to the Tax Credits Act 2002 (c.21).

(2)

2012 c.5.

(3)

See section 173(1)(b) of the 1992 Act.

(4)

S.I. 1991/2890 amended by S.I. 1992/633, 1992/2869, 1992/3147, 1993/518, 1996/1436, 1996/1767, 1999/2860, 1999/1326, 2000/1401 and 2013/389.

(5)

S.I. 2013/377.

(6)

S.I. 2013/387 amended by S.I. 2013/2231 and 2689.