The Social Security (Disability Living Allowance, Attendance Allowance and Carer’s Allowance) (Miscellaneous Amendments) Regulations (Northern Ireland) 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend certain social security legislation as a result of the judgment of the European Court of Justice (ECJ) in October 2007 in case C-299/05 Commission of the European Communities v European Parliament and Council of the European Union ([2007] ECR I-8695). This judgment determined that attendance allowance, carer’s allowance and the care component of disability living allowance are sickness benefits for the purposes of either Council Regulation (EC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (“the 1971 Regulation”) or Regulation (EC) No 883/2004 on the coordination of social security systems (“the 2004 Regulation”) and may be payable when a person moves from the United Kingdom to another European Economic Area (EEA) State or to Switzerland. These Regulations ensure that persons whose award of one of these benefits was terminated upon moving or proposing to move to one of those states, may be re-awarded benefit from the date of the ECJ judgment.

Regulation 2 amends the Social Security Contributions and Benefits (Northern Ireland) Act 1992 to ensure that a person to whom either the 1971 Regulation or the 2004 Regulation applies shall only be entitled to attendance allowance, carer’s allowance or the care component of a disability living allowance when the United Kingdom (rather than another EEA State or Switzerland) is responsible under those Regulations for payment of sickness benefits to that person. Regulation 2 refers to both the 1971 Regulation and the 2004 Regulation because, while the 2004 Regulation came into force on 1 May 2010 to replace the 1971 Regulation, the latter Regulation remains in force for the purposes described in Article 90 of the 2004 Regulation.

Regulation 3 amends the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 so that where there was an earlier award and the decision to terminate entitlement could not be superseded, a claim can be backdated to the date of the ECJ judgment, provided that the claimant has not already received an extra-statutory payment for the same period.

Regulation 4 amends the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 to ensure that the normal condition that new claims for disability living allowance are not payable to those aged 65 or over, is not applicable where a person who lost entitlement to that benefit on moving to another EEA State or Switzerland, reclaims it following the ECJ judgment.

Regulation 5 amends the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 so that where, as a result of the ECJ judgment, the Department for Social Development supersedes an original decision to terminate entitlement to attendance allowance, carer’s allowance or the care component of disability living allowance, the superseding decision takes effect from the date of the ECJ judgment (allowing claimants to reclaim benefit from this date).

Regulations 3 to 5 make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, the Social Security Administration (Northern Ireland) Act 1992, are not subject to the requirement of section 149(2) of that Act for prior reference to the Social Security Advisory Committee.