The Disability Assistance for Children and Young People (Scotland) Regulations 2021

Residence and presence conditions

5.—(1) An individual satisfies the residence and presence conditions where on any day that individual—

(a) is ordinarily resident in Scotland,

(b) is habitually resident in the common travel area,

(c) is not a person to whom section 115(3) of the Immigration and Asylum Act 1999(1) applies, within the meaning of section 115(9) of that Act for the purposes of entitlement to Child Disability Payment,

(d) is present in the common travel area, and

(e) has been present in the common travel area 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.

(2) In the case of a child under the age of 6 months, paragraph (1) is to apply as if in sub-paragraph (e) for the reference to 26 weeks there was substituted a reference to 13 weeks.

(3) Where in any particular case a child has by virtue of paragraph (2) entitlement to the care component immediately before the day the child attains the age of 6 months, then until the child attains the age of 12 months, paragraph (1)(e) shall continue to apply in that child’s case as if for the reference to 26 weeks there was substituted a reference to 13 weeks.

(4) The residence condition set out in paragraph (1)(a) does not apply in relation to the care component where on any day the individual—

(a) is habitually resident in Ireland,

(b) has a genuine and sufficient link to Scotland, and

(c) is an individual—

(i) to whom the Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019(2), as modified from time to time in accordance with any provision of it, applies, and

(ii) in respect of whom the United Kingdom is, as a result, competent for payment of long term care benefits.

(5) The reference in paragraph (4)(b) to an individual’s link to Scotland being sufficient is to it being sufficiently close that if the individual were not entitled to Child Disability Payment, paragraph (4) would be incompatible with Convention on Social Security between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Ireland signed at Dublin on 1 February 2019.

(6) A relevant individual is treated as satisfying the residence and presence conditions set out in paragraph (1)(a), (b), (d) and (e) where on any day that individual is outside the common travel area—

(a) by reason of their capacity mentioned in paragraph (7)(b) provided that individual satisfied the residence and presence conditions set out in paragraph (1)(a), (b), (d) and (e) immediately prior to the start of their employment mentioned in paragraph (7)(b), or

(b) by reason of being a person mentioned in paragraph (7)(a) living with an individual to whom sub-paragraph (a) applies.

(7) A “relevant individual” in paragraph (6) means an individual who is—

(a) living with a person mentioned in sub-paragraph (b) and—

(i) is the child, step-child or a child in care of that person, or

(ii) is married to or in a civil partnership with that person, or is living together with that person as if they were married or in a civil partnership, or

(b) outside the common travel area in their capacity as a—

(i) serving member of Her Majesty’s forces, or

(ii) civil servant.

(8) An individual is to be treated as meeting the presence conditions set out in paragraphs (1)(d) and (e) for any period where that individual is—

(a) outside the common travel area in their capacity as an aircraft worker or mariner, or

(b) in employment prescribed for the purposes of section 120 (employment at sea (continental shelf operations)) of the Social Security Contributions and Benefits Act 1992(3) in connection with continental shelf operations.

(9) Where an individual—

(a) does not meet the presence condition set out in paragraph (1)(d) on the date the application is received by the Scottish Ministers, and

(b) appears to the Scottish Ministers likely to meet that condition, unless there is a change of circumstances, on a date not later than 3 months after the application was received,

the Scottish Ministers may choose the date within that 3 month period on which the application is to be treated as being made.

(10) The past presence condition in paragraph (1)(e) does not apply where an individual—

(a) has a terminal illness within the meaning of regulation 15, or

(b) has—

(i) been granted refugee status or humanitarian protection under the immigration rules, or

(ii) leave to enter or remain in the United Kingdom as the dependant of a person granted refugee status or humanitarian protection under the immigration rules.

(11) For the purpose of paragraph (10)(b) “immigration rules” means the rules laid before the United Kingdom Parliament under section 3(2) of the Immigration Act 1971(4).

(1)

1999 c.33.

(2)

2019 CP 49.

(3)

1992 c.4, relevantly amended by paragraph 26(a) and (b) of schedule 3 and paragraph 8 of schedule 7 of the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c.2), paragraph 70 of schedule 7 of the Social Security Act 1998 (c.14), section 12(2) to (4) of the National Insurance Contributions Act 2014 (c.7) and paragraph 30 of schedule 4 of the Petroleum Act 1998 (c.17).

(4)

1971 c.77.