The Social Security (Severe Disablement Allowance) Regulations 1984

Made: 15th August 1984

Laid before Parliament: 20th August 1984

Coming into Operation

The Secretary of State for Social Services, in exercise of the powers set out in Schedule 1 below, and of all other powers enabling him in that behalf, by this instrument, which contains only provisions consequential on section 11 of the Health and Social Security Act 1984 and regulations made under section 36 of the Social Security Act 1975[^f00001], makes the following regulations:—

PART I — GENERAL

Citation and commencement

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These regulations may be cited as the Social Security (Severe Disablement Allowance) Regulations 1984 and shall come into operation in the case of regulations 1, 2, 10, 17, 18 and 19 on 10th September 1984, and in the case of the remainder of the regulations on 29th November 1984.

Interpretation

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• (1) In these regulations “the Act” means the Social Security Act 1975, ... “the 1984 Act” means the Health and Social Security Act 1984 and “the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992.

• (1A) In these Regulations—

• “councillor” has the same meaning as in section 171F(2) of the Contributions and Benefits Act; and

• “councillor’s allowance” has the same meaning as in section 30E(2) of the Contributions and Benefits Act.

• (1B) In these Regulations “disability appeal tribunal” means a tribunal constituted in accordance with Schedule 10A to the Act.

• (1C) In these Regulations—

• “voluntary body” means a body the activities of which are carried out otherwise than for the purpose of profit; and

• “volunteer” means a person who is engaged in voluntary work with a charity or voluntary body, or who is engaged in voluntary work otherwise than for a member of his family, where the only payment received by him or due to be paid to him by virtue of being so engaged, is a payment in respect of any expenses reasonably incurred by him in the course of being so engaged.

• (2) Any reference in these regulations to a person's father, mother, son, or daughter includes a reference to his step-father, step-mother, step-son or step-daughter, as the case may be, and a person shall be treated as such a relative if he would be such a relative if some person born illegitimate had been born legitimate.

• (3) In determining whether a day falls within a period of incapacity for work, the provisions of section 30C of the Contributions and Benefits Act (incapacity benefit: days and periods of incapacity for work) and of any regulations made under section 30C(3) and (4) shall have effect for the purposes of severe disablement allowance as they have effect for the purposes of incapacity benefit.

• (4) References in regulations 5(b) and 6 to a person being entitled to a severe disablement allowance and in regulation 20 to a person being entitled to a non-contributory invalidity pension include a reference to a person who would be entitled to a payment of such an allowance or, as the case may be, such a pension but for any provision of the Social Security (Overlapping Benefits) Regulations 1979.

• (5) Unless the context otherwise requires, any reference in these regulations to a numbered regulation is a reference to the regulation bearing that number in these regulations and any reference in a regulation to a numbered paragraph is a reference to the paragraph of that regulation bearing that number.

PART II — MISCELLANEOUS PROVISIONS RELATING TO SEVERE DISABLEMENT ALLOWANCE

Conditions relating to residence and presence

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• (1) Subject to the following provisions of this regulation, the prescribed conditions for the purposes of section 36(4)(c) of the Act as to residence and presence in Great Britain in relation to any person on any day shall be that—

• (a) on that day—

• (i) he is ordinarily resident in Great Britain, and

• (ib) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or section 115 of that Act does not apply to him for the purposes of entitlement to severe disablement allowance by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, 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; ...

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) Section 36 of the Act shall be modified by adding after subsection (4) the following subsection–

(4ZA) In determining whether the person satisfies any conditions prescribed under paragraph (c) of subsection (4) above– (a) any period during which the person is absent from Great Britain by reason only of the fact that– (i) he is abroad in his capacity as a serving member of the forces, or (ii) he is living with a person mentioned in sub-paragraph (i) and is the spouse, son, daughter, father, father-in-law, mother or mother-inlaw of that person, shall be treated as a period during which the person was resident in Great Britain; and (b) any day on which the person is absent from Great Britain by reason only of the fact that on that day– (i) he is abroad in his capacity as a serving member of the forces, or (ii) he is living with a person mentioned in sub-paragraph (i) and is the spouse, son, daughter, father, father-in-law, mother or mother-inlaw of that person, or (iii) he is in employment prescribed for the purposes of section 132 of the Act in connection with continental shelf operations, or (iv) he is abroad in his capacity as an airman or mariner within the meaning of regulation 81 and regulation 86 respectively of the Social Security (Contributions) Regulations 1979 shall be treated as a day on which the person is present in Great Britain; and for the purposes of this provision, the expression “serving member of the forces” has the same meaning as in regulation 1(2) of the Social Security (Contributions) Regulations 1979.

• (3) Where a person has been entitled to a severe disablement allowance or a non-contributory invalidity pension for any day, the conditions set out in paragraph (1) of this regulation shall not apply to that person in respect of any subsequent day of incapacity for work falling within the same period of incapacity for work.

Circumstances in which a person over pensionable age is to be treated as having been entitled to a severe disablement allowance immediately before attaining that age

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A person who has attained the age of 65 shall for the purposes of section 36(4)(d) of the Act be treated as having been entitled to a severe disablement allowance immediately before attaining that age if immediately before attaining it—

• (a) he would have satisfied the conditions for entitlement to that allowance or to a non-contributory invalidity pension but for the provisions of the Social Security (Overlapping Benefits) Regulations 1979, or

• (b) he was entitled to a non-contributory invalidity pension.

Severe disablement allowance for persons over retiring age

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A person who—

• (a) has attained the age of 65; and

• (b) was entitled to a severe disablement allowance immediately before he attained that age,

Modification of section 36(2) and (3) of the Act in relation to persons who have previously been entitled to a severe disablement allowance

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A person who has previously been entitled to a severe disablement allowance for any day shall be entitled to such an allowance on the relevant day notwithstanding that he does not satisfy—

• (a) in the case of a person who on the earlier day satisfied the conditions specified in section 36(2) of the Act, the conditions specified in subsection (2)(b) of that section; or

• (b) in the case of a person who on the earlier day satisfied the conditions specified in section 36(3) of the Act, the conditions specified in subsection (3)(b) of that section,

Days for which persons are to be regarded as incapable of work for the purposes of severe disablement allowance

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• (1) Subject to paragraph (3), for the purposes of severe disablement allowance a person shall not be treated as incapable of work for any day which is not to be treated as a day of incapacity for work under regulation 4(1)(c) (Persons attending training courses) of the Social Security (Incapacity Benefit) Regulations 1994.

• (1A) Regulation 5 (night workers) of the Social Security (Incapacity Benefit) Regulations 1994 shall apply for the purposes of severe disablement allowance as it applies for the purposes of incapacity benefit.

• (1B) For the purposes of severe disablement allowance, a person shall be treated as incapable of work on any day in a period, consisting of a cumulative number of days of incapacity for work not exceeding 91 days in total for which he makes a claim for severe disablement allowance, beginning within a linking term and ending on a day not later than 13 weeks from the end of that linking term in respect of which he has been determined to be a person who is a welfare to work beneficiary; and in this paragraph “linking term” and “welfare to work beneficiary” have the meanings given in regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995 (welfare to work beneficiary).

• (1C) For the purposes of severe disablement allowance, a person shall be treated as incapable of work on any day where he is treated as incapable of work under regulation 10A of the Social Security (Incapacity for Work) (General) Regulations 1995 (certain persons participating in approved work to be treated as incapable of work).

• (2) In determining for the purposes of section 68(2) or (3) of the Contributions and Benefits Act whether a person has been incapable of work for a period of not less than 196 consecutive days, a day shall not be treated as a day on which that person was incapable of work if that day was a day on which he was undergoing imprisonment or detention in legal custody and which was part of a period of imprisonment or detention of more than 6 weeks.

• (3) A person who was incapable of work—

• (a) for not less than 196 consecutive days commencing on or before he attained the age of 20, and

• (b) for not less than 196 consecutive days immediately preceding the relevant day,

but who was capable of work for a period which does not, or for periods which in the aggregate do not, exceed 182 days where that period or those periods occurred

• (i) after the 196 days mentioned in sub-paragraph (a) but before the 196 days mentioned in sub-paragraph (b), and

• (ii) after he attained the age of 15 years 24 weeks,

shall be treated for the purposes of section 36(2)(b) of the Act, and for that purpose only, as incapable of work on each day within that period or those periods.

Circumstances in which a person is to be treated as receiving full-time education

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• (1) A person shall be treated as receiving full-time education for the purposes of severe disablement allowance for any period during which—

• (a) he is not less than 16 or more than 19 years of age; and

• (b) he attends for not less than 21 hours a week a course of education; so, however, that in calculating the number of hours a week during which he attends that course no account shall be taken of any instruction or tuition which is not suitable for persons of the same age and sex who do not suffer from a physical or mental disability.

• (2) In determining the duration of a period of full-time education under paragraph (1), any temporary interruption of that education may be disregarded.

• (3) A person over the age of 19 shall be treated as not receiving full-time education.

Disqualification for severe disablement allowance

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Adjudication

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• (1) For the purposes of section 36(5) (extent of disablement) of the Act, the evidence required that on any day a person suffers or suffered from loss of physical or mental faculty such that the assessed extent of the resulting disablement amounts or amounted to not less than 80 per cent. shall consist of—

• (a) evidence that that day falls within a period when the person is or was entitled to attendance allowance under section 35(2) of the Act;

• (b) evidence that on that day he is or was entitled to—

• (i) a mobility allowance under section 37A of the Act or the mobility component of disability living allowance at the higher rate prescribed in accordance with section 37ZC(10) of the Act or the care component of disability living allowance at the highest or middle rate prescribed in accordance with section 37ZB(3) of the Act; or

• (ii) a mobility supplement under article 26A of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983[^f00003] or under article 25A of the Personal Injuries (Civilians) Scheme 1983;

evidence that on that day he is or was entitled to the care component of disability living allowance at the highest rate prescribed in accordance with section 72(3) and (4) (a) of the Contributions and Benefits Act;

• (c) evidence that the extent of his disablement on that day has been assessed for the purposes of section 57 of the Act as not less than 80 per cent;

• (d) evidence that that day is or was or is or was later than one in respect of which it has been determined under the Vaccine Damage Payments Act 1979 that he is or was severely disabled as a result of a vaccination against any of the diseases to which that Act applies;

• (e) evidence that the degree of his disablement on that day has been assessed for the purposes of Part III of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983 or of Part III of the Personal Injuries (Civilians) Scheme 1983 as not less than 80 per cent;

• (f) evidence that on that day he is or was registered as a blind or partially sighted person in a register compiled under section 29 of the National Assistance Act 1948;

• (ff) evidence that he has been certified as blind or partially sighted and that in consequence he is or was registered on that day as blind or partially sighted in a register maintained by or on behalf of a regional or islands council;

• (g) evidence that on that day the Secretary of State provides or provided him with an invalid carriage or other vehicle under section 5(2) of the National Health Service Act 1997 or makes or made payments by way of grant to him under paragraph 2 of Schedule 2 to that Act;

• (gg) evidence that on that day the Secretary of State provides or provided him with an invalid carriage or other vehicle under section 46 of the National Health Service (Scotland) Act 1978or makes or made payments by way of grant to him under that section;

• (h) evidence that the extent of his disablement on that day has been assessed for the purposes of section 36 of the Act as not less than 80 per cent; or

• (hh) subject to paragraph (2B) and during the period referred to in regulation 7(1B), evidence that he has been determined on that day to be a welfare to work beneficiary in accordance with regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995;

• (i) such other evidence as satisfies the Secretary of State or, as the case may be, an appeal tribunal constituted under Chapter I of Part I of the Social Security Act 1998 that he so suffers or suffered.

• (2) For the purposes of sub-paragraphs (a) to (h) of paragraph (1) an official record of the Department of Social Security of any fact specified in those sub-paragraphs shall be sufficient evidence of that fact.

• (2A) For the purposes of paragraphs (1)(g) and (1)(gg) “invalid carriage or other vehicle” means a vehicle propelled by petrol engine or by electric power supplied for use on the road and to be controlled by the occupant.

• (2B) Paragraph (1)(hh) shall not apply to a welfare to work beneficiary who, in his immediate past period of incapacity for work within the meaning of regulation 13A of the Social Security (Incapacity for Work) (General) Regulations 1995, was not assessed to be disabled in accordance with section 68(6) of the Contributions and Benefits Act.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART III — CONSEQUENTIAL AMENDMENT OF REGULATIONS

Consequential amendment of regulations

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For the words “non-contributory invalidity pension” wherever they occur in any provision mentioned in column 3 of Schedule 2 there shall be substituted the words “severe disablement allowance”.

Amendment of the Social Security (Adjudication) Regulations 1984

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Amendment of the Social Security (Benefit) (Members of the Forces) Regulations 1975

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In regulation 2 of the Social Security (Benefit) (Members of the Forces) Regulations 1975[^f00005] (unemployment, sickness and invalidity benefit) for the shoulder note and the words in that regulation down to and including “non-contributory invalidity benefit” there shall be substituted the following shoulder note and words:—

(2) A person shall not be entitled to unemployment benefit, sickness benefit, invalidity benefit or a severe disablement allowance

Amendment of the Social Security (Airmen's Benefit) Regulations 1975

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In regulation 2 of the Social Security (Airmen's Benefit) Regulations 1975[^f00006] (removal of disqualification in the case of airmen for receiving benefit while absent from Great Britain) for the words “invalidity benefit or non-contributory invalidity pension” where they occur in paragraphs (1) and (2) there shall be substituted the words “invalidity benefit or severe disablement allowance”.

Amendment of the Social Security (Mariners' Benefits) Regulations 1975

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• (1) The Social Security (Mariners' Benefits) Regulations 1975[^f00007] shall be amended in accordance with the following provisions of this regulation.

• (2) In regulation 4 (removal of disqualification for receiving benefit by reason of absence from Great Britain)—