The Social Security (Incapacity Benefit)(Transitional) Regulations 1995

PART VI E+W+S PROVISIONS FOR THE TRANSITION TO THE NEW TESTS OF INCAPACITY FOR WORK

Transitional awards of incapacity benefit E+W+S

29.  A person’s entitlement to a transitional award of incapacity benefit shall, except as provided in regulation 31, be subject to him satisfying the tests of incapacity for work under Part XIIA of the 1992 Act M1 .

Marginal Citations

M1 Part XIIA was inserted into the Social Security Contributions and Benefits Act 1992 by sections 5 and 6 of the Social Security (Incapacity for Work) Act 1994.

Transitional provision in respect of other benefits E+W+S

30.  A person’s continued enjoyment on or after the appointed day of severe disablement allowance or any other advantage under any provision for the purposes of which Part XIIA of the 1992 Act applies shall, except as provided in regulation 31, be subject to satisfying the tests of incapacity for work under that Part of the 1992 Act.

Application of the new tests of incapacity for work E+W+S

31.—(1) Where it has been determined that a person is incapable of work for any purpose of the 1992 Act immediately before the appointed day [F1 and he continues to be incapable of work on or after the appointed day, [F2 the question of whether he is capable or incapable of work shall fall to be determined in accordance with the personal capability assessment], but] he shall not be required to satisfy or be treated as having satisfied the condition of entitlement that he is incapable of work in accordance with [F3 that assessment] until he has been assessed as to incapacity for work in accordance with regulations made under section 171C of the 1992 Act [F4 (the personal capability assessment)] M2 or until it is determined that he falls within one of the cases mentioned in paragraph (5), so long as he satisfies the condition in paragraph (2).

(2) The condition referred to in paragraph (1) is that, in respect of each day, a person shall be required to provide evidence of his incapacity for work in accordance with the Socal Security (Medical Evidence) Regulations 1976 (which prescribe the form of doctor’s statement or other evidence in each case) M3 .

(3) Subject to paragraph (4), a person who falls within one of the cases mentioned in paragraph (5) [F5 shall be treated as being incapable of work in accordance with regulations made under section 171C of the 1992 Act (the personal capability assessment)].

(4) Where it is determined that a person falls within one of the cases mentioned in paragraph (5)(a) to (c) and paragraphs (d) to [F6 (k)] do not apply, that person shall continue to provide evidence of his incapacity for work in accordance with the Social Security (Medical Evidence) Regulations 1976; and provided that such evidence is furnished he shall be treated as [F7 incapable of work in accordance with the personal capability assessment] in accordance with regulations made under section 171C of the 1992 Act.

(5) The cases referred to in paragraph (3) are—

(a) a person—

(i) entitled to invalidity benefit on 1 December 1993 and on 12 April 1995; and

(ii) between a period beginning on 1 December 1993 and ending on 13 April 1995, [F8 was incapable] of work for that period or for two or more periods not separated by a period of more than 56 continuous days; and

(iii) is aged 58 or over on the appointed day;

(b) a person—

(i) entitled to income support, housing benefit or council tax benefit on 1 December 1993; and

(ii) was incapable of work for a period of not less than 28 weeks immediately before 1 December 1993; and

(iii) whose applicable amount included the disability premium on account of his own incapacity on 12 April 1995; and

(iv) between the period beginning on 1 December 1993 and ending on 13 April 1995, was incapable of work for that period or for two or more periods not separated by a period of more than 56 continuous days; and

(v) is aged 58 or over on the appointed day;

(c) a person in receipt of a payment of an award of severe disablement allowance under section 68 of the 1992 Act immediately before the appointed day[F9 and the spell[F10 or period] of incapacity for work which is running at the appointed day continues];

(d) a person who was in receipt of a payment of an award of the highest rate of the care component of disability living allowance immediately before the appointed day and continues to be in receipt of such payment;

(e) a person who is suffering from a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months;

(f) a blind person whose name is on a register compiled and maintained by a local authority in accordance with section 29 of the National Assistance Act 1948 M4 (welfare services) or, in Scotland, has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a regional or islands council;

(g) a person suffering from one of the following conditions—

(i) tetraplegia;

(ii) persistent vegetative state;

(iii) dementia;

(iv) paraplegia or uncontrollable involuntary movements or ataxia which effectively renders the sufferer functionally paraplegic;

(h) [F11 a person is suffering from any of the following conditions, and there exists medical evidence that he is suffering from any of them—]

(i) a severe learning disability (which, for the purposes of this regulation, means a condition which results from the arrested or incomplete physical development of the brain, or severe damage to the brain, and which involves severe impairment of intelligence and social functioning);

(ii) a severe and progressive neurological or muscle wasting disease;

(iii) an active and progressive form of inflammatory polyarthritis;

(iv) a progressive impairment of cardio-respiratory function which severely and persistently limits effort tolerance;

(v) dense paralysis of the upper limb, trunk and lower limb on one side of the body;

(vi) multiple effects of impairment of function of the brain or nervous system causing severe and irreversible motor, sensory and intellectual deficits;

[F12 (vii) manifestations of severe and progressive immune deficiency states characterised by the occurrence of severe constitutional disease or opportunistic infections or tumour formation;]

[F13 (viii) a severe mental illness, involving the presence of mental disease, which severely and adversely affects a person’s mood or behaviour, and which severely restricts his social functioning, or his awareness of his immediate environment.]

[F14 (i) a person who was in receipt of a payment of an increase of disablement pension by virtue of section 104 of the 1992 Act and regulation 19 of the Social Security (General Benefit) Regulations 1982 (increase of disablement pension for constant attendance) at a rate greater than that specified in paragraph 2(a) or at the rate specified in paragraph 2(b) of Part V of Schedule 4 to the 1992 Ac immediately before the appointed day and continues to be in receipt of such payment;

(j) a person who was in receipt of a payment of constant attendance allowance by virtue of article 14(1)(b) of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 immediately before the appointed day and continues to be in receipt of such payment;

(k) a person who was in receipt of a payment of an increase of constant attendance allowance at a rate payable by virtue of article 14 of, and paragraph 3(a) of Schedule 3 to, the Personal Injuries (Civilians) Scheme 1983 immediately before the appointed day and continues to be in receipt of such payment.]

[F15 (6) In sub-paragraph (h) of paragraph (5), “medical evidence” means—

(a) evidence from a doctor approved by the Secretary of State; and

(b) evidence (if any) from any other doctor, or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances.]

Textual Amendments

F1 Words in reg. 31(1) substituted (6.1.1997) by The Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (S.I. 1996/3207), regs. 1(1), 3(5)(a)

F2 Words in reg. 31(1) substituted (3.4.2000) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1999 (S.I. 1999/3109), regs. 1(1), 7(a)(i)

F3 Words in reg. 31(1) substituted (3.4.2000) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1999 (S.I. 1999/3109), regs. 1(1), 7(a)(ii)

F4 Words in reg. 31(1) substituted (3.4.2000) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1999 (S.I. 1999/3109), regs. 1(1), 7(a)(iii)

F5 Words in reg. 31(3) substituted (3.4.2000) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1999 (S.I. 1999/3109), regs. 1(1), 7(b)

F6 Word in reg. 31(4) substituted (3.4.1995) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995 (S.I. 1995/987), regs. 1(2), 3(9)(a)

F7 Words in reg. 31(4) substituted (3.4.2000) by The Social Security (Incapacity) Miscellaneous Amendments Regulations 2000 (S.I. 2000/590), regs. 1(b), 2

F8 Words in reg. 31(5)(a)(ii) substituted (3.4.1995) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995 (S.I. 1995/987), regs. 1(2), 3(9)(b)(i)

F9 Words in reg. 31(5)(c) inserted (3.4.1995) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995 (S.I. 1995/987), regs. 1(2), 3(9)(b)(ii)

F10 Words in reg. 31(5)(c) inserted (5.10.1998) by The Social Security (Welfare to Work) Regulations 1998 (S.I. 1998/2231), regs. 1, 3(7)

F11 Words in reg. 31(5)(h) substituted (6.1.1997) by The Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (S.I. 1996/3207), regs. 1(1), 3(5)(b)(i)

F12 Reg. 31(5)(h)(vii) substituted (3.4.1995) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995 (S.I. 1995/987), regs. 1(2), 3(9)(b)(iii)

F13 Reg. 31(5)(h)(viii) substituted (6.1.1997) by The Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (S.I. 1996/3207), regs. 1(1), 3(5)(b)(ii)

F14 Reg. 31(5)(i), Reg. 31(5)(j), Reg. 31(5)(k) inserted (3.4.1995) by The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1995 (S.I. 1995/987), regs. 1(2), 3(9)(b)(iv)

F15 Reg. 31(6) inserted (6.1.1997) by The Social Security (Incapacity for Work and Miscellaneous Amendments) Regulations 1996 (S.I. 1996/3207), regs. 1(1), 3(5)(c)

Marginal Citations

M2 Section 171C was inserted into the Social Security Contributions and Benefits Act 1992 by section 5 of the Social Security (Incapacity for Work) Act 1994.

M3 S.I. 1976/615; relevant amending instruments are S.I. 1982/699, 1987/409, 1991/2284, 1992/247 and 1994/2975.

M4 1948 c. 29; the relevant amendments to section 29 are in the Local Government Act 1972 section 195, Schedule 23 paragraph 25.

Treatment of days of incapacity arising before the appointed day E+W+S

32.  The days of incapacity for work before the appointed day and the days which are treated as days of incapacity for work in accordance with regulation 2 shall be taken into account for the purposes of calculating the days of incapacity referred to in section 171B(3) and (4) of the 1992 Act M5 F16 ....

Textual Amendments

F16 Words in reg. 32 omitted (3.4.2000) by virtue of The Social Security (Incapacity for Work) Miscellaneous Amendments Regulations 1999 (S.I. 1999/3109), regs. 1(1), 7(c)

Marginal Citations

M5 Section 171B was inserted into the Social Security Contributions and Benefits Act 1992 by section 5 of the Social Security (Incapacity for Work) Act 1994.