DWP issues guidance on changes to the residence and presence test for DLA for children consequent upon the introduction of child disability payment
New DMG Memo includes guidance on 13-week ‘run-on’ period of award after a claimant has left England or Wales and becomes permanently resident in Scotland
The DWP has issued new guidance to decision makers in relation to the residence and presence test for disability living allowance for children (DLAc) consequent upon the introduction of child disability payment (CDP) in Scotland.
In DMG Memo 6/23, the Department provides guidance on changes made by the Scotland Act 2016 (Social Security) (Disability Living Allowance) (Amendment) Regulations 2023 (SI.No.664/2023) which, from 7 July 2023, alter the DLAc residence and presence test and make provision for what happens when someone entitled to (or applying for) DLAc moves from somewhere in England and Wales to live permanently in Scotland.
NB – the regulations also make corresponding changes to Northern Ireland legislation – the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 – following a request from the Department of Communities that the Secretary of State make the necessary provisions in the absence of a functioning Executive and Northern Ireland Ministers.
In particular, the DWP advises that the basic condition of entitlement for DLA that the claimant be present in Great Britain – as per regulation 2(1)(a)(ii) of the Social Security (Disability Living Allowance) Regulations 1991 – is altered in certain circumstances from 7 July 2023, to instead require presence in England and Wales.
The DWP adds that –
'In other words, if the person is present in Scotland, and … they are under 16 years of age … they fail the residence and presence test for DLA.
If the person is present in Scotland and they are aged 16 or over and they meet both the award condition [award beginning before claimant reaches age of 16] and the status condition [including those awaiting a PIP transfer decision or who have suspended awards while in hospital/care] they fail the Residence and Presence test for DLA.
If such a person is temporarily absent from England and Wales and present in Scotland, they shall be treated as being present in England and Wales.
If such a person is absent from Great Britain for [reasons including temporary absence and armed service abroad] … they are treated as present in England and Wales.'
In addition, the DWP notes that these amended conditions only relate to establishing whether a person is currently present in England and Wales, and do not alter the past presence test. Also, the guidance confirms that the changes should take effect once the entirety of the current DLAc Scottish permanent resident caseload has transferred to CDP, so it will not affect the current entitlement to DLA of any Scottish residents who could otherwise find themselves failing these revised residence and presence conditions.
The DWP also provides guidance on the effect of the changes made by the regulations on people with DLAc awards who move to Scotland, advising that –
'When the relevant DLA entitled person makes that move to Scotland, they will retain entitlement to DLA for a period of approximately 13 weeks. This ‘run-on period’ begins with the residence change date and ends at the end of the day preceding the DLA pay day which falls immediately after the end of 13 weeks…
If there is a fixed term award of DLA (for example, a ‘renewal’) which is due to expire during the run-on period, that fixed term period is extended so it expires at the end of the run-on period.'
For DLAc claimants that move from England or Wales to Scotland before receiving a decision on a new claim, the DWP advises that –
'The Secretary of State [for Work and Pensions] must make a decision upon the DLA claim, unless that claim is voluntarily withdrawn by the claimant.
The decision made by the Secretary of State must disregard the amendments made to the residence and presence test conditions introduced by these regulations. This means that the person only needs to be considered present in Great Britain, rather than the more specifc territory of England and Wales, to meet the test requirements.'
DMG Memo 6/23 is available from gov.uk