The Social Security (Introduction of Disability Living Allowance) Regulations 1991

Award of disability living allowance

3.—(1) Subject to the following provisions of this regulation, a person whose award of attendance allowance is terminated under regulation 2 shall be treated as having been awarded the care component for the period commencing on 6th April 1992 and ending on the day the period of the award of attendance allowance would have been ended but for regulation 2.

(2) Subject to the following provisions of this regulation and regulation 4 (claims for, and applications for reviews of decisions relating to, attendance allowance), a person whose award of attendance allowance is cancelled under regulation 2 shall be treated as having been awarded the care component for a period commencing on whichever of the following dates is the latest, namely—

(a) 6th April 1992, or

(b) the date which precedes by 3 months the date the awarded the attendance allowance would have commenced but for regulation 2, or

(c) where on 6th April 1992 the person has an award of the care component under paragraph (1), the day following the day that award ends,

and ending on the date the award of attendance allowance would have ended but for regulation 2.

(3) Where the award of attendance allowance which has been terminated or cancelled under regulation 2 was made to the person in respect of a child who, on the date the award is terminated or cancelled, has not attained the age of 16 years, then that child, and not the person to whom the award was made, shall be treated for the purposes of paragraph (1) or (2) as having been awarded the care component.

(4) The weekly rate of disability living allowance payable by virtue of this regulation shall be—

(a) in the case of a person to whom attendance allowance was payable, immediately before the award was terminated in accordance with regulation 2, at the higher rate specified in paragraph 1 of Part III of Schedule 4 to the 1975 Act, the highest of the three weekly rates of care component prescribed in accordance with section 37ZB(3) of the 1975 Act;

(b) in the case of a person to whom attendance allowance was payable, immediately before the award of attendance allowance was terminated in accordance with regulation 2, at the lower rate specified in paragraph 1 of Part III of Schedule 4 to the 1975 Act, the middle of the three weekly rates of care component prescribed in accordance with section 37ZB(3) of the 1975 Act;

(c) at the highest of the three weekly rates of care component where the award which was cancelled in accordance with regulation 2 was to be payable at the higher rate of attendance allowance and at the middle of those rates where the award which was cancelled was to be payable at the lower rate.

(5) Where immediately before 6th April 1992 a person had an award of attendance allowance but no benefit was payable under the award by virtue of regulations made under any provision mentioned in paragraph (6), benefit under the award of disability living allowance treated as made under this regulation shall likewise not be payable; but, subject to the following provisions of this regulation, for any parts of the period during which those regulations do not apply in his case, disability living allowance shall be payable—

(a) at the highest of the three weekly rates of the care component prescribed in accordance with section 37ZB(3) of the 1975 Act if attendance allowance would, immediately before 6th April 1992 have been payable at the higher rate but for those regulations, or

(b) at the middle of those rates if attendance allowance would immediately before 6th April 1992 have been payable at the lower rate but for those regulations.

(6) The provisions are—

(a) section 35(6) of the 1975 Act (persons for whom accommodation is provided under certain enactments);

(b) section 82(5) of the 1975 Act (persons undergoing detention in legal custody);

(c) section 85(1) of the 1975 Act (overlapping benefits).

(7) For the purposes of determining the weekly rate of disability living allowance payable to a person under the age of 16 such as is mentioned in paragraph (3), paragraphs (4) and (5) shall apply as if he was the person to whom the attendance allowance was payable immediately before the award was terminated or would have been payable if the award had not been cancelled in accordance with regulation 2.

(8) Disability living allowance awarded in accordance with this regulation shall continue for the period of the award only so long as the person to whom the award is treated as made continues to satisfy conditions as to residence and presence prescribed under section 37ZA(6) of the 1975 Act and—

(a) in the case of a person to whom the care component is payable at the highest rate, also continues to satisfy the conditions mentioned in section 37ZB(1)(b) and (c) of that Act, or

(b) in the case of a person to whom the care component is payable at the middle of the three rates, also continues to satisfy one or other of the conditions mentioned in section 37ZB(1)(b) or (c) of that Act.

(9) Subject to paragraph (10), paragraph (8) shall apply to a person who—

(a) before 6th April 1992 was entitled to an attendance allowance by virtue of section 35(1)(b) of the 1975 Act as enacted, and

(b) is awarded disability living allowance in accordance with this regulation, as if section 37ZB(1)(c)(ii) was modified to read—

“(a) he requires continual supervision in order to avoid substantial danger to himself or others”.

(10) Paragraph (9) shall not apply where the award of disability living allowance is reviewed in accordance with provisions in Part III of the 1975 Act.