Social Security (Disability Living Allowance) Regulations 1991
1991 No. 2890
SOCIAL SECURITY
The Social Security (Disability Living Allowance) Regulations 1991
Made 18th December 1991
Coming into force 6th April 1992
Whereas a draft of this instrument was laid before Parliament in accordance with section 12(1) of the Disability Living Allowance and Disability Working Allowance Act 19911and approved by resolution of each House of Parliament;
Now therefore the Secretary of State for Social Security, in exercise of the powers conferred by sections 37ZA(6), 37ZB(2), (3), (7) and (8), 37ZC, 37ZD, 37ZE(2), 85(1), 114(1) and 166(2) to (3A) of and Schedule 20 to the Social Security Act 19752, section 13 of the Social Security (Miscellaneous Provisions) Act 19773and section 5(1) of the Disability Living Allowance and Disability Working Allowance Act 1991, and of all other powers enabling him in that behalf, by this instrument, which contains only regulations made consequential upon section 1 of the Disability Living Allowance and Disability Working Allowance Act 1991, hereby makes the following Regulations:
PART I
INTRODUCTION
Citation, commencement and interpretation
1.—(1) These Regulations may be cited as the Social Security (Disability Living Allowance) Regulations 1991 and shall come into force on 6th April 1992.
(2) In these Regulations–
“the Act” means the Social Security Act 19754;
“the NHS Act of 1977” means the National Health Service Act 19775;
“the NHS Act of 1978” means the National Health Service (Scotland) Act 19786;
“the NHS Act of 1990” means the National Health Service and Community Care Act 19907;
“adjudicating authority” means, as the case may be, the chief or any other adjudication officer, an appeal tribunal or a disability appeal tribunal;
“care component” means the care component of a disability living allowance;
“mobility component” means the mobility component of a disability living allowance;
“terminally ill” shall be construed in accordance with section 35(2C) of the 1975 Act8.
(3) Unless the context otherwise requires, any reference in these Regulations to a numbered regulation or Schedule is a reference to the regulation or Schedule bearing that number in these Regulations and any reference in a regulation or Schedule to a numbered paragraph is a reference to the paragraph of that regulation or Schedule bearing that number.
PART II
GENERAL
Conditions as to residence and presence in Great Britain
2.—(1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 37ZA(6) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that–
(a)
(a) on that day–
(i) he is ordinarily resident in Great Britain; and
(ii) he is present in Great Britain; and
(iii) he has been present in Great Britain for a period of, or for periods amounting in the aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day; and
(b)
(b) where that day falls within a period in which that person–
(i) receives tax free emoluments, or
(ii) is the spouse of a person who receives tax free emoluments, or
(iii) is aged under 16 and is the son, daughter, step-son or step-daughter of a person who receives tax free emoluments,
that period is immediately preceded by a period of 4 years during which the person first mentioned in this sub-paragraph was present in Great Britain for not less than 156 weeks in aggregate.
(2) For the purposes of paragraph (1)(a)(ii) and (iii), notwithstanding that on any day a person is absent from Great Britain, he shall be treated as though he was present in Great Britain if his absence is by reason only of the fact that on that day–
(a)
(a) he is abroad in his capacity as–
(i) a serving member of the forces,
(ii) an airman or mariner within the meaning of regulations 81 and 86 respectively of the Social Security (Contributions) Regulations 19799,
and for the purpose of this provision, the expression “serving members of the forces” has the same meaning as in regulation 1(2) of the Regulations of 1979; or
(b)
(b) he is in employment prescribed for the purposes of section 132 of the Act in connection with continental shelf operations10; or
(c)
(c) he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of that person; or
(d)
(d) his absence from Great Britain is, and when it began was, for a temporary purpose and has not lasted for a continuous period exceeding 26 weeks; or
(e)
(e) his absence from Great Britain is temporary and for the specific purpose of his being treated for incapacity, or a disabling condition, which commenced before he left Great Britain, and the Secretary of State has certified that it is consistent with the proper administration of the Act that, subject to the satisfaction of the foregoing condition in this sub-paragraph, he should be treated as though he were present in Great Britain.
(3) In paragraph (1)(b), the expression “tax free emoluments” means emoluments which are exempt from tax under any of the provisions listed in paragraph (1) of regulation 9 of the Child Benefit (General) Regulations 197611.
(4) Where a person is terminally ill and–
(a)
(a) makes a claim for disability living allowance; or
(b)
(b) an application is made for a review of his award of disability living allowance,
expressly on the ground that he is such a person, paragraph (1) shall apply to him as if head (iii) of sub-paragraph (a) was omitted.
(5) Paragraph (1) shall apply in the case of a child under the age of 6 months as if in head *(iii) of sub-paragraph (a) for the reference to 26 weeks there was substituted a reference to 13 weeks.
(6) Where in any particular case a child has by virtue of paragraph (5), entitlement to the care component immediately before the day he attains the age of 6 months, then until the child attains the age of 12 months, head (iii) of sub-paragraph (a) of paragraph (1) shall continue to apply in his case as if for the reference to 26 weeks there was substituted a reference to 13 weeks.
Age 65 or over
3.—(1) A person shall not be precluded from entitlement to either component of disability living allowance by reason only that he has attained the age of 65 years, where–
(a)
(a) disability living allowance is claimed for a period beginning on or after the day the person attains the age of 65 but before he attains the age of 66;
(b)
(b) on the day before he attained the age of 65 he satisfied the conditions as to residence and presence in Great Britain set out in regulation 2;
(c)
(c) on that day, he satisfied the conditions of entitlement in section 37ZB(1) or as the case may be, section 37ZC(1) of the Act; and
(d)
(d) he has satisfied those conditions throughout the period beginning on that day and ending with the day on which the claim is made.
(2) Paragraph (3) applies to a person who–
(a)
(a) made a claim for disability living allowance before he attained the age of 65, which was not determined before he attained that age, and
(b)
(b) did not at the time he made the claim have an award of disability living allowance for a period ending on or after the day he attained the age of 65.
(3) In determining the claim of a person to whom this paragraph applies, where the person otherwise satisfies the conditions of entitlement to either or both components of disability living allowance for a period commencing before his 65th birthday (other than the requirements of section 37ZB(2)(a), or, as the case may be, section 37ZC(9)(a) of the Act (3 months qualifying period)), the determination shall be made without regard to the fact that he is aged 65 or over at the time the claim is determined.
(4) Schedule 1, which makes further provision for persons aged 65 or over shall have effect.
Rate of Benefit
4.—(1) The three weekly rates of the care component are–
(a)
(a) the highest rate, payable in accordance with section 37ZB(4)(a) of the Act, £43.35;
(b)
(b) the middle rate, payable in accordance with section 37ZB(4)(b) of the Act, £28.95; and
(c)
(c) the lowest rate, payable in accordance with section 37ZB(4)(c) of the Act, £11.55.
(2) The two weekly rates of the mobility component are–
(a)
(a) the higher rate, payable in accordance with section 37ZC(11)(a) of the Act, £30.30; and
(b)
(b) the lower rate, payable in accordance with section 37ZC(11)(b) of the Act, £11.55.
Late claim by a person previously entitled
5.—(1) Notwithstanding section 37ZE(1) of the Act (no entitlement to disability living allowance for any day before a claim is made), where–
(a)
(a) a person’s entitlement to disability living allowance has ended, and
(b)
(b) that person makes or is treated as making a claim for disability living allowance after the entitlement has ended but within a period of 6 months immediately following the day on which it ended,
then the person shall, subject to satisfying any other conditions of entitlement, be entitled to the care component for any day on or after 6th April 1992 on which he satisfies the conditions specified in paragraph (2)(a) and to the mobility component for any day on or after that day on which he satisfies the conditions specified in paragraph (2)(b).
(2) Those conditions are–
(a)
(a) where the person is entitled on the claim for disability living allowance to the care component, that–
(i) the previous entitlement was to the care component,
(ii) that entitlement ended within 6 months of the claim being made,
(iii) throughout the period beginning with the day following the day on which the previous entitlement ended and ending on the day the claim was made, he satisfied the conditions of entitlement to the care component specified in paragraph (a), (b)...
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