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The Personal Independence Payment Regulations (Northern Ireland) 2016

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PART 7Payability when person is residing in certain accommodation or is detained in custody

Care home residents

28.—(1) Subject to paragraph (3) and regulation 30, no amount of personal independence payment which is attributable to the daily living component is payable in respect of C for any period during which C meets the condition in Article 90(2).

(2) For the purpose of Article 90(2) the specified statutory provisions are—

(a)Article 5, 15 or 36 of the Health and Personal Social Services (Northern Ireland) Order 1972(1);

(b)the Mental Health (Northern Ireland) Order 1986(2);

(c)section 8 of the Carers and Direct Payments Act (Northern Ireland) 2002(3); or

(d)any other statutory provision relating to persons under a disability or to young persons or to education or training except—

(i)Articles 50 and 51 of the Education and Libraries (Northern Ireland) Order 1986(4),

(ii)Article 30 of the Education and Libraries (Northern Ireland) Order 1993(5), or

(iii)Article 3 of the Education (Student Support) (Northern Ireland) Order 1998(6).

(3) Subject to paragraph (4), paragraph (1) does not apply in the case of C, where C is a person—

(a)who has not attained the age of 18 and to whom—

(i)Article 17(b) of the Children (Northern Ireland) Order 1995(7) applies because C’s health is likely to be significantly impaired, or further impaired, without the provision of services for C, or

(ii)Article 17(c) of that Order applies; or

(b)who is accommodated outside the United Kingdom if the costs of any qualifying services are borne wholly or partly by an education authority pursuant to its powers under Article 11 of the Education (Northern Ireland) Order 1996(8).

(4) Paragraph (3)(a) only applies during any period in which the Regional Health and Social Care Board or the Health and Social Care trust looking after C places C in a private dwelling with a family, or with a relative of C, or with some other suitable person.

(5) In this regulation—

“Health and Social Care trust” means a body as established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991(9);

“the Regional Health and Social Care Board” means the body established under section 7 of the Health and Social Care (Reform) Act (Northern Ireland) 2009(10).

Hospital in-patients

29.—(1) Subject to regulation 30, no amount of personal independence payment which is attributable to either component is payable in respect of C for any period during which C meets the condition in Article 91(2).

(2) For the purposes of Article 91(3), the costs of treatment, accommodation or any related services are borne out of public funds if C is undergoing medical or other treatment as an in-patient in—

(a)a hospital or similar institution under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Personal Social Services (Northern Ireland) Order 1991(11); or

(b)a hospital or similar institution maintained or administered by the Defence Council.

Payability exceptions: care homes and hospitals

30.—(1) Subject to paragraphs (2) to (5), regulation 28(1) or, as the case may be, regulation 29(1) does not apply to C in respect of the first 28 days of any period during which C is someone to whom that regulation applies.

(2) Where, on the day on which C’s entitlement to personal independence payment commences, C meets the condition in Article 90(2) or 91(2), paragraph (1) does not apply to C in respect of any period of consecutive days, beginning with that day, on which C continues to satisfy that condition.

(3) Regulation 28 or, as the case may be, regulation 29 does not apply where C is residing in a hospice and is terminally ill, and the Department has been informed that C is terminally ill—

(a)on a claim for personal independence payment;

(b)on an application for a revision or a supersession of an award of personal independence payment; or

(c)in writing in connection with an award of, a claim for, or an application for a revision or a supersession of an award of, personal independence payment.

(4) In paragraph (3) “hospice” means a hospital or other institution whose primary function is to provide palliative care for persons resident there who are suffering from a progressive disease in its final stages, other than—

(a)a hospital or similar institution under the Health and Personal Social Services (Northern Ireland) Order 1972 or the Health and Personal Social Services (Northern Ireland) Order 1991; or

(b)a hospital or similar institution maintained or administered by the Defence Council.

(5) Regulation 28(1) does not apply to a case where, during any period the total cost of qualifying services(12) are met—

(a)out of the resources of the person for whom the qualifying services are provided, or partly out of that person’s own resources and partly with assistance from another person or a charity; or

(b)on that person’s behalf by another person or a charity.

Prisoners and detainees

31.—(1) Subject to paragraph (2), Article 92 does not apply in respect of the first 28 days of any period during which C is a person to whom that Article would otherwise apply.

(2) Where, on the day on which C’s entitlement to personal independence payment commences, C is a person to whom that Article applies, paragraph (1) does not apply to C in respect of any period of consecutive days, beginning with that day, on which C continues to be a person to whom that Article applies.

(3) Article 92 does not apply to C in respect of any period after the conclusion of criminal proceedings as a result of which C is detained in a hospital or similar institution in Northern Ireland as a person suffering from mental disorder unless C satisfies the conditions set out in paragraph (4).

(4) The conditions referred to in paragraph (3) are that C is—

(a)detained under Article 53 of the Mental Health (Northern Ireland) Order 1986(13) (removal to hospital of persons serving sentences of imprisonment, etc.); and

(b)being detained on or before the day on which C would be entitled to be released within the meaning of Article 56(3) of that Order(14) (further provisions as to prisoners under sentence).

(5) For the purposes of this regulation—

(a)“hospital or similar institution” means any place (not being a prison, a juvenile justice centre or a young offenders centre and not being at or in any such place) in which persons suffering from mental disorder are or may be received for care or treatment;

(b)criminal proceedings against any person are deemed to be concluded upon that person being found insane in those proceedings with the effect that that person cannot be tried or the trial of that person cannot proceed.

(6) Article 92 does not apply to C where—

(a)C is undergoing imprisonment or detention in legal custody outside Northern Ireland; and

(b)in similar circumstances in Northern Ireland, C would have been excepted from the application of that Article by virtue of the operation of any provision of this regulation.

Periods of residence

32.—(1) In these Regulations, a “period of residence” is a period during which C—

(a)meets the condition in Article 90(2);

(b)meets the condition in Article 91(2); or

(c)is a person who is undergoing imprisonment or detention in legal custody.

(2) Subject to paragraph (3), for the purposes of Article 92 and regulations 28 and 29, a period of residence—

(a)begins on the day after the day on which C enters a care home, hospital or similar institution or commences a period of imprisonment or detention in legal custody; and

(b)ends on the day before the day on which C leaves a care home, hospital or similar institution or on which a period of imprisonment or detention in legal custody ends.

(3) Where, immediately following a period of residence for the purpose of sub-paragraphs (a), (b) or (c) of paragraph (1), C commences another period of residence for the purpose of any of those sub-paragraphs, the earlier period of residence is deemed to end on the day on which C leaves the care home, hospital or similar institution or, as the case may be, on which the period of imprisonment or detention ends.

(4) Subject to paragraph (5), for the purposes of regulation 30(1) and 31(1)—

(a)two or more distinct periods of residence separated by an interval not exceeding 28 days, or by two or more such intervals, are to be treated as a continuous period equal in duration to the total duration of such distinct periods and ending on the last day of the later or last such period; and

(b)any period or periods to which those regulations refer are to be taken into account and aggregated with any other period referred to in those regulations.

(5) Where the periods referred to in paragraph (4)(a) are both or all periods to which Article 92 (prisoners) applies, paragraph (4) is to have effect with the following modifications—

(a)omit “subject to paragraph (5),” and “30(1) and”;

(b)in sub-paragraph (a) for “28 days” substitute “one year”; and

(c)in sub-paragraph (b)–

(i)for “those regulations refer” substitute “that regulation refers”, and

(ii)for “in those regulations” substitute “in that regulation”.

(1)

S.I. 1972/1265 (N.I. 14); Article 15 was amended by paragraph 2(2) of Schedule 1 to the Registered Homes (Northern Ireland) Order 1992 (S.I. 1992/3204 (N.I. 20)) and Article 36 was amended by section 1(1) and (2) of the Health and Personal Social Services Act (Northern Ireland) 2002 (c. 9 (N. I.)) and Article 45 of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003 (S.I. 2003/431 (N.I. 9))

(4)

S.I. 1986/594 (N.I. 3); Article 51 was substituted by Part 2 of Schedule 5 to the Education (Northern Ireland) Order 1996 (S.I. 1996/274 (N.I. 1)) and certain functions transferred from the Department of Education by Parts I and II of Schedule 3 to the Departments (Transfer and Assignment of Functions) Order (Northern Ireland) 1999 (S.R. 1999 No. 481) and for certain purposes functions transferred by Article 7(a) of the Departments (Transfer of Functions) Order (Northern Ireland) 2001 (S.R. 2001 No. 229)

(6)

S.I. 1998/1760 (N.I. 14); Article 3 was amended by section 147(3) of the Learning and Skills Act 2000 (c. 21), paragraph 238 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (c. 1), section 147(4) of the Finance Act 2003 (c. 14) and Article 11(1) of the Higher Education (Northern Ireland) Order 2005 (S.I. 2005/1116 (N.I. 5))

(9)

S.I. 1991/194 (N.I. 1); Article 10 was amended by section 1 of the Health and Social Care (Reform) Act (Northern Ireland) 2009 (c. 1) (N.I.))

(12)

See Article 90(4) of the Welfare Reform (Northern Ireland) Order 2015 for the meaning of qualifying services

(13)

S.I. 1986/595 (N.I. 4); Article 53 was amended by paragraph 38 of Schedule 12 to the Justice (Northern Ireland) Act 2002 (c. 26)

(14)

Article 56(3) was substituted by section 296(3) of the Criminal Justice Act 2003 (c. 44) and amended by paragraph 5(2) of Schedule 5 to the Justice (Northern Ireland) Order 2008 (S.I. 2008/1216 (N.I. 1))

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