85. (1) In the case of a person to whom any paragraph in column (1) of Schedule 5 applies (applicable amounts in special cases) the amount included in the claimant’s weekly applicable amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule but excluding an amount for a child or young person whose capital is calculated in accordance with Part VIII in like manner as for the claimant, would exceed £3,000, but including an amount for a child or young person whose capital falls to be treated as income in accordance with regulation 106 (1) (modification in respect of children and young persons).
(2) Except where the amount prescribed in Schedule 5 in respect of a person to whom paragraph (1) applies includes an amount applicable under regulation 83(e) or 84(1)(f) a person to whom paragraph (1) applies shall be treated as not falling within the conditions specified in paragraph 15 of Schedule 1 (severe disability premium).
(3) In Schedule 5, for the purposes of paragraphs 1, 2 and 17 (persons in residential care or nursing homes who become patients), where a person has been a patient for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been a patient continuously for a period equal in duration to the total of those distinct periods.
(4) In this regulation and Schedule 5–
“person from abroad” means a person, who–(a)
has a limited leave as defined in section 33(1) of the Immigration Act 1971(1) (hereinafter referred to as “the 1971 Act”) to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953(2)), a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961), unless, in the case of a national of a state which is a signatory of that European Convention, he has made an application for the conditions of his leave to remain in the United Kingdom to be varied, and that application has not been determined or an appeal from that application is pending under Part II of the 1971 Act (appeals); or(b)
having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or(c)
is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or(d)
is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or(e)
has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or(f)
has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or(g)
has not had his immigration status determined by the Secretary of State; or(h)
is a national of a Member State and is required by the Secretary of State to leave the United Kingdom;
“person from abroad” also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is—(a)
a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or(b)
a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951(3), as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967(4); or(c)
a person who has been granted exceptional leave(5) to remain in the United Kingdom by the Secretary of State;
“patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975(6);
“prisoner” means a person who—
“residential accommodation” means, subject to the following provisions of this regulation, accommodation provided by a local authority in a home owned or managed by that or another local authority—(a)
under sections 21 to 24 of the National Assistance Act 1948(11) (provision of accommodation); or(b)
in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968(12) (provision of residential and other establishments); or(c)
under section 7 of the Mental Health (Scotland) Act 1984(13) (functions of local authorities),
where the accommodation is provided for a person whose stay in that accommodation has become other than temporary.
(5) Where a person–
(a)is in, or only temporarily absent from, residential accommodation within the meaning of paragraph (4) and that accommodation subsequently becomes a residential care home; or
(b)on 31st March 1993 was in or was only temporarily absent from accommodation of a kind mentioned in regulation 21(3B) to (3E) of the Income Support Regulations(14),
that person shall continue to be treated as being in residential accommodation within the meaning of paragraph (4) if, and for so long as, the local authority is under a duty to provide or make arrangements for providing accommodation for that person and, in the case of a person to whom sub-paragraph (a) applies, he remains in the same accommodation.
(6) A person who would, but for this paragraph, be in residential accommodation within the meaning of paragraph (4) shall be treated as not being in residential accommodation where—
(a)he is under the age of 18 and in the care of a local authority under Part II or III of the Social Work (Scotland) Act 1968 (promotion of social welfare of children in need of care); or
(b)except where he is a person to whom paragraph (5)(b) applies, he is in accommodation where—
(i)no cooked or prepared food is made available to him in consequence solely of his paying the charge for the accommodation or any other charge which he is required to pay as a condition of occupying the accommodation, or both of those charges, or
(ii)such food is actually made available for his consumption on payment of a further charge or charges.
For a description of “exceptional leave”, see Home Office evidence to the House of Commons Home Affairs Committee, Sub-committee on Race Relations and Immigration (SCORRI) 1984-85 Session; 17th December 1984; paragraphs 44 to 47.
1948 c. 29; section 21 was amended by the Local Government Act 1972 (c. 70), Schedule 23 paragraphs 1 and 2 and Schedule 30; the National Health Service Reorganisation Act 1972 (c. 32), Schedule 4 paragraph 44 and the Housing (Homeless Persons) Act 1977 (c. 48). Schedule; the National Health Service Act 1977 (c. 49), Schedule 15 paragraph 5; the Health Services Act 1980 (c. 53), Schedule 1 Part 1 paragraph 5. Section 22 was amended by the Social Work (Scotland) Act 1968 (c. 49), section 87(4) and Schedule 9 Part 1; the Supplementary Benefits Act 1976 (c. 71) Schedule 7 paragraph 3; the Housing (Homeless Persons) Act 1977 (c. 48), Schedules; the Social Security Act 1980 (c. 30), section 20, Schedule 4 paragraph 2(1) and Schedule 5 Part II and the Health and Social Services and Social Security Adjudications Act 1983 (c. 41), section 20(1)(a), section 24 was amended by the National Assistance (Amendment) Act 1959 (c. 30), section 1(1); the National Health Service (Scotland) Act 1972 (c. 58), Schedule 6 paragraph 82; the Local Government Act 1972 (c. 58), Schedule 6 paragraph 82; the Local Government Act 1972 (c. 70), Schedule 23 paragraph 2; the National Health Service Reorganisation Act 1972 (c. 32), Schedule 4 paragraph 45 and the Housing (Homeless Persons) Act 1977 (c. 48). Schedule.
1968 c. 49; section 13B was inserted by the National Health Service and Community Care Act 1990, section 56; section 59 is amended by the same Act of 1990, Schedule 9, paragraph 10(7).