The Social Security (Incapacity Benefit) Regulations 1994

[F1 PART IV E+W+S ADDITIONAL CONDITIONS FOR PERSONS INCAPACITATED IN YOUTH

Textual Amendments

F1 Pt. 4, 5 inserted (6.4.2001) by The Social Security (Incapacity Benefit) Miscellaneous Amendments Regulations 2000 (S.I. 2000/3120), regs. 1, 2(5) (with reg. 6)

General E+W+S

14.   This Part of these Regulations applies to persons incapacitated in youth in accordance with section 30A(1)(b) and (2A) of the Contributions and Benefits Act.

Age Exception—Persons aged 20 and under 25 E+W+S

15.— (1) For the purposes of subsection (2A)(b) of section 30A of the Contributions and Benefits Act (prescribed cases in relation to persons aged under 25 and above the age 20 limit), a person falls within a prescribed case if he satisfies the conditions specified in the following paragraphs.

(2) The conditions referred to in paragraph (1) are that, he is a person who—

(a) registered on a course of—

(i) full-time advanced or secondary education, or

(ii) vocational or work-based training,

at least 3 months before he attained the age of 20 years; and

(b) not more than one academic term immediately after registration under sub-paragraph (a), attended one or more such courses of education or training as are mentioned in that sub-paragraph [F2 in respect of a period] referred to in paragraph (3).

(3) The period mentioned in paragraph (2)(b) is a period which—

(a) began on or before a day at least 3 months before the day he attained the age of 20 years, and

[F3 (b) ended no earlier than the beginning of the last two complete tax years before the benefit year which would have governed a claim for incapacity benefit under section 30A(1)(a) of the Contributions and Benefits Act had he been eligible for it.]

(4) For the purposes of this regulation a person is attending a course of education or training on any day on which the course or training is interrupted by an illness or domestic emergency.

(5) For the purposes of this regulation—

• “advanced education” means full-time education for the purposes of—

  (a)

  a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business and Technician Education Council or the Scottish Vocational Education Council, or a teaching qualification; or

  (b)

  any other course which is of a standard above ordinary national diploma, a diploma of the Business and Technician Education Council or a national certificate of the Scottish Vocational Education Council, a general certificate of education (advanced level), a Scottish certificate of education (higher grade) or a Scottish certificate of Sixth Year Studies;

• “course of education” means a course of advanced education or secondary education;

• “full-time” includes part-time where the disability from which a person suffers prevents him from attending a full-time course;

• “relevant day” has the same meaning as in section 30A(1) of the Contributions and Benefits Act, that is to say, the day—

  (a)

  in respect of which a person is entitled to claim incapacity benefit;

  (b)

  which falls on any day immediately after a period of 196 consecutive days of incapacity for work; and

  (c)

  which forms part of a period of incapacity for work;

• “secondary education” means a full-time course of education below a course of advanced education—

  (a)

  by attendance at a recognised educational establishment within the meaning of section 147(1) of the Contributions and Benefits Act, or

  (b)

  elsewhere than at a recognised educational establishment, where the Secretary of State is satisfied that the education is equivalent to that given in a recognised educational establishment;

• “training” has the same meaning as vocational training or work-based training;

• “vocational training” means training for work as defined for the purposes of section 30C(6) of the Contributions and Benefits Act and in regulation 3, and includes any training, instruction or tuition (of which the primary purpose is the teaching of occupational or vocational skills) received on a course provided, for persons suffering mental or physical disability, by a person recognised by the Secretary of State; and

• “work-based training” means vocational training undertaken on the premises of an employer.

Textual Amendments

F2 Words in reg. 15(2)(b) substituted (25.4.2001) by The Social Security (Incapacity Benefit) Amendment Regulations 2001 (S.I. 2001/1305), regs. 1, 2(3)(a)

F3 Words in reg. 15(3)(b) substituted (25.4.2001) by The Social Security (Incapacity Benefit) Amendment Regulations 2001 (S.I. 2001/1305), regs. 1, 2(3)(b)

Conditions relating to residence or presence E+W+S

16.— (1) The prescribed conditions for the purposes of section 30A(2A)(d) of the Contributions and Benefits Act as to residence or presence in Great Britain in relation to any person on the relevant day shall be that on that day—

(a) he is ordinarily resident in Great Britain;

(b) he is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 or he is a person to whom paragraph (5) applies;

(c) he is present in Great Britain; and

(d) he has been present in Great Britain for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the 52 weeks immediately preceding that day.

F4 (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F4 (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) In determining whether a person satisfies paragraph (1), where a person is absent from Great Britain by reason only of the fact that—

(a) he is abroad in his capacity as a serving member of the forces, or he is the spouse, [F5 civil partner,] son, daughter, father, father-in-law, mother or mother-in-law of, and living with, a serving member of the forces abroad;

(b) he is in employment prescribed for the purposes of section 120 of the Contributions and Benefits Act in connection with continental shelf operations; or

(c) he is abroad in his capacity as an airman within the meaning of regulation 81, or mariner within the meaning of regulation 86, of the Social Security (Contributions) Regulations 1979;

any day or period of absence shall be treated as a day on which, or period during which, the person is present or resident, as the case may be, in Great Britain; and for the purposes of this paragraph “serving member of the forces” has the same meaning as in regulation 1(2) of the Social Security (Contributions) Regulations 1979.

(5) This paragraph applies where a person is—

(a) a member of a family of a national of a State contracting party to the Agreement on the European Economic Area signed at Oporto on 2nd May 1992 as adjusted by the Protocol signed at Brussels on 17th March 1993;

(b) a person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under [F6 Article 217 of the Treaty on the Functioning of the European Union] providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families;

(c) a person who is a member of a family of, and living with, a person specified in sub-paragraph (b); or

(d) a person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971 to be responsible for his maintenance and accommodation.

(6) A person shall be treated as having satisfied the residence or presence conditions on any subsequent day of incapacity for work falling within the same period of incapacity for work where the residence or presence conditions specified in paragraphs (1) to (4) are satisfied on the first relevant day.

Textual Amendments

F4 Reg. 16(2)(3) omitted (1.10.2006) by virtue of The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2006 (S.I. 2006/2378), regs. 1(2), 10(4)

F5 Words in reg. 16(4)(a) inserted (5.12.2005) by The Civil Partnership (Pensions, Social Security and Child Support) (Consequential, etc. Provisions) Order 2005 (S.I. 2005/2877), art. 1, Sch. 3 para. 24 (with art. 3)

F6 Words in Regulations substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011 (S.I. 2011/1043), arts. 2, 3-6

Circumstances in which a person is or is not to be treated as receiving full-time education E+W+S

17.— (1) This regulation applies for the purposes of section 30A(7) of the Contributions and Benefits Act (the circumstances in which a person is or is not to be treated as receiving full-time education for the purposes of section 30A(2A)(e) of that Act).

(2) A person shall be treated as receiving full-time education for any period during which—

(a) he is 16 years of age or over but under the age of 19 years; and

(b) he attends a course of education for 21 hours or more in a week.

(3) For the purposes of paragraph (2)(b), in calculating the number of hours a week during which a person attends a 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.

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

(5) A person who is 19 years of age or over shall not be treated for the purposes of section 30A(2A)(e) of the Contributions and Benefits Act as receiving full-time education notwithstanding he is undergoing a full-time education.

Circumstances in which a previous claimant who does not satisfy the age condition becomes entitled E+W+S

18.— (1) This regulation applies, for the purposes of section 30A(6) of the Contributions and Benefits Act, to a person who has previously been entitled to incapacity benefit under section 30A(1)(b) of that Act (persons incapacitated in youth) and does not satisfy the condition set out in section 30A(2A)(b) of that Act (upper age condition).

(2) A person shall be entitled to the lower rate short-term incapacity benefit where—

(a) he has previously been entitled to incapacity benefit by virtue of having been a person incapacitated in youth under section 30A(1)(b) and (2A) of the Contributions and Benefits Act;

(b) his previous entitlement had not been ended by a determination (other than a determination in the circumstances applicable to a person under paragraph (3)(a) or (4)(a)) that he was, or was treated as, capable of work;

(c) section 30C(1)(c), (5) or (6) of the Contributions and Benefits Act (days and periods of incapacity for work) or any regulation made under section 30C(4)(b) (linking provisions) does not apply in his case;

(d) he is aged 20 years or over, or, where regulation 15 would otherwise apply to him, aged 25 years or over; and

(e) he is a person to whom paragraph (3) or (4) applies.

(3) This paragraph applies to a person—

(a) whose previous entitlement to incapacity benefit for a person incapacitated in youth was terminated solely with a view to him taking up an employment or training;

(b) whose earnings [F7 factor] from an employment or series of employments, which he pursued in the period from the termination of his previous entitlement to the beginning of his period of incapacity for work, [F8 was] below the lower earnings limit in accordance with section 5(1)(a) of the Contributions and Benefits Act multiplied by 25 in any of the last three complete tax years before the beginning of the relevant benefit year; and

(c) who—

(i) in respect of the last two complete tax years before the beginning of the relevant benefit year has either paid or been credited with earnings equivalent in each of those years to the year’s lower earnings limit multiplied by 50, of which at least one, in the last tax year, was in respect of disabled person’s tax credit; or

(ii) within a period of 56 days after the day he ceased his last such employment as he pursued in accordance with sub-paragraph (b), makes a claim for incapacity benefit for persons incapacitated in youth.

(4) This paragraph applies to a person—

(a) whose previous entitlement to incapacity benefit for persons incapacitated in youth was terminated by reason solely of his absence from Great Britain by virtue of disqualification under section 113 of the Contributions and Benefits Act;

(b) who has been incapable of work for a period of 196 consecutive days from the day of his absence from Great Britain ceased;

F9 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F10 (d) who made his claim for benefit on a day not later than 3 months from the end of the period of 196 days described in sub-paragraph (b).]

(5) For the purposes of this regulation, “training” has the same meaning as in regulation 15.

Textual Amendments

F7 Word in reg. 18(3)(b) inserted (25.4.2001) by The Social Security (Incapacity Benefit) Amendment Regulations 2001 (S.I. 2001/1305), regs. 1, 2(4)(a)

F8 Word in reg. 18(3)(b) substituted (25.4.2001) by The Social Security (Incapacity Benefit) Amendment Regulations 2001 (S.I. 2001/1305), regs. 1, 2(4)(b)

F9 Reg. 18(4)(c) omitted (1.1.2003) by virtue of The Social Security (Incapacity) (Miscellaneous Amendments) (No. 2) Regulations 2002 (S.I. 2002/2311), regs. 1(1)(b), 3(2)(a)

F10 Reg. 18(4)(d) substituted (1.1.2003) by The Social Security (Incapacity) (Miscellaneous Amendments) (No. 2) Regulations 2002 (S.I. 2002/2311), regs. 1(1)(b), 3(2)(b)

Persons formerly entitled to severe disablement allowance E+W+S

19.— (1) Where a person was below the age of 20 years [F11 on 6th April 2001] and was entitled to, or receiving, severe disablement allowance by virtue of section 68(1) of the Contributions and Benefits Act on or immediately before 5th April 2002, he shall, if he continues to be incapable of work in accordance with Part XIIA of the Contributions and Benefits Act, be—

(a) entitled to the long-term incapacity benefit from 6th April 2002; and

(b) treated as having acquired entitlement under section 30A(1)(b) and (2A) of the Contributions and Benefits Act; and

(c) treated as if section 30DD of the Contributions and Benefits Act does not apply in his case.

(2) Where a person was below the age of 20 years [F11 on 6th April 2001] and was entitled to, or receiving, severe disablement allowance by virtue of section 68(1) of the Contributions and Benefits Act and to whom section 30C(1) to (4) or section 68(10) or (10A), or regulations made under section 30C(4)(b), of that Act applied on or immediately after 5th April 2002, he shall be—

(a) entitled to the long-term incapacity benefit from the relevant day; and

(b) treated as having acquired entitlement under section 30A(1)(b) and (2A) of the Contributions and Benefits Act; and

(c) treated as if section 30DD of the Contribution and Benefits Act does not apply in his case.]

Textual Amendments

F11 Words in reg. 19 substituted (5.4.2002) by The Social Security (Incapacity) (Miscellaneous Amendments) Regulations 2002 (S.I. 2002/491), regs. 1(1)(a), 4