The Social Security (Severe Disablement Allowance) Regulations 1984

PART IIMISCELLANEOUS PROVISIONS RELATING TO SEVERE DISABLEMENT ALLOWANCE

Conditions relating to residence and presence

3.—(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 in respect of any day shall be—

(a)that he is present in Great Britain;

(b)that he has been present in Great Britain for 168 days or more in the 196 days immediately preceding that day; and

(c)that he has been resident in Great Britain for a period of or periods amounting in the aggregate to—

(i)10 years in the 20 years immediately preceding that day; or

(ii)10 years since his birth if he is under 20 years of age on that day.

(2) For the purposes of paragraph (1)(a) or (b) notwithstanding that on any day a person is absent from Great Britain he shall be treated as though he were present in Great Britain if his absence is by reason only of the fact that on that day—

(a)he is abroad in his capacity as—

(i)a serving member of the forces within the meaning of the definition of “serving member of the forces” in regulation 1(2) of the Social Security (Contributions) Regulations 1979 , or

(ii)an airman or mariner within the meaning of regulation 81 and regulation 86 respectively of those Regulations; or

(b)he is in prescribed employment in connection with continental shelf operations within the meaning of regulation 85 of those Regulations; or

(c)he is living with a person mentioned in sub-paragraph (a)(i) and is the spouse, son, daughter, father, father-in-law, mother or mother-in-law of that person.

(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 interruption of employment.

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

4.  A person who has attained pensionable age 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

5.  A person who—

(a)has attained retiring age; and

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

shall continue to be so entitled notwithstanding that he does not satisfy the conditions specified in subsection (2) or (3) of section 36 of the Act if he satisfies the other requirements for entitlement to such an allowance.

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

6.  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,

if the relevant day and the earlier day fall within the same period of interruption of employment and if he satisfies the other requirements for entitlement to such an allowance.

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

7.—(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 unless that day would be a day of incapacity for work under section 17(1)(a) of the Act or regulation 3, 5 or 7(1)(f) of the Social Security (Unemployment, Sickness and Invalidity Benefit) Regulations 1983 (provisions for determining whether a day is one of incapacity for work for the purposes of sickness or invalidity benefit); and in the case of a person who has not attained retiring age, Sunday or the day which would be substituted for Sunday under regulation 4 of the said regulations of 1983 shall (except for the purposes of the requirements of section 36(2) or (3) of the Act as to the period for which a person must have been incapable of work as those apply in the case of a person who has not previously been entitled to severe disablement allowance) not be treated as a day on which that person is incapable of work.

(2) In determining for the purposes of section 36(2) or (3) of the 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 on that day he was undergoing imprisonment or detention in legal custody.

(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

8.—(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

9.  A person shall be disqualified from receiving a severe disablement allowance for such period not exceeding 6 weeks as may be determined in accordance with sections 97 to 104 of the Act if—

(a)he has become incapable of work through his own misconduct, except that this disqualification shall not apply where the incapacity is due to venereal disease; or

(b)he fails without good cause to comply with a notice in writing given by or on behalf of the Secretary of State requiring him to attend for and to submit himself to medical or other examination on a date not earlier than the third day after the day on which the notice was sent and at a time and place specified in that notice; or

(c)he fails without good cause to attend for, or submit himself to, medical or other treatment; so however that this disqualification shall not apply to any failure to attend for or to submit to vaccination or inoculation of any kind or to a surgical operation, unless the failure is a failure to attend for or to submit to a surgical operation of a minor character, and is unreasonable; or

(d)he fails without good cause to observe any of the following rules of behaviour, namely:—

(i)to refrain from behaviour calculated to retard his recovery, and to answer any reasonable enquiries (not being enquiries relating to medical examination, treatment or advice) by the Secretary of State or his officers directed to ascertaining whether he is doing so;

(ii)not to be absent from his place of residence without leaving word where he may be found;

(iii)to do not work for which remuneration is, or would ordinarily be, payable unless it is—

(aa) work which is undertaken under medical supervision as part of his treatment while he is a patient in or of a hospital or similar institution, or

(bb) work which is not so undertaken and which he has good cause for doing,

and from which, in the case of work of either description, his earnings, if any, are ordinarily not more than £23.50 a week.

Adjudication

10.—(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 the period specified in a certificate issued in respect of him by the Attendance Allowance Board 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(1); or

(ii)a mobility supplement under article 26A of the Naval, Military and Air Forces etc. (Disablement and Death) Service Pensions Order 1983(2) or under article 25A of the Personal Injuries (Civilians) Scheme 1983(3);

(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;

(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;

(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

(i)such other evidence as satisfies an adjudicating medical authority 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 Health and Social Security of any fact specified in those sub-paragraphs shall be sufficient evidence of that fact.

(3) The disablement questions in relation to severe disablement allowance shall be referred to and determined by an adjudication officer in any case where the Department of Health and Social Security has an official record as specified in paragraph (2).

(4) For the purposes of paragraph (1)(i) “adjudicating medical authority” means an adjudicating medical practitioner, or two or more adjudicating medical practitioners acting as a medical board, or a medical appeal tribunal.