Welfare Reform Bill

Session 2010 - 11
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Other Bills before Parliament

Welfare Reform Bill

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78
Ability to carry out daily living activities or mobility activities
(1)
For the purposes of this Part, the following questions are to be determined in
accordance with regulations—
(a)
whether a person’s ability to carry out daily living activities is limited
by the person’s physical or mental condition;
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(b)
whether a person’s ability to carry out daily living activities is severely
limited by the person’s physical or mental condition;
(c)
whether a person’s ability to carry out mobility activities is limited by
the person’s physical or mental condition;
(d)
whether a person’s ability to carry out mobility activities is severely
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limited by the person’s physical or mental condition.
(2)
Regulations must make provision for determining, for the purposes of each of
sections 76(1) and (2) and 77(1) and (2), whether a person meets “the required
period condition” (see further section 79).
(3)
Regulations under this section—
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(a)
must provide for the questions mentioned in subsections (1) and (2) to
be determined, except in prescribed circumstances, on the basis of an
assessment (or repeated assessments) of the person;
(b)
must provide for the way in which an assessment is to be carried out;
(c)
may make provision about matters which are, or are not, to be taken
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into account in assessing a person.
(4)
The regulations may, in particular, make provision—
(a)
about the information or evidence required for the purpose of
determining the questions mentioned in subsections (1) and (2);
(b)
about the way in which that information or evidence is to be provided;
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(c)
requiring a person to participate in such a consultation, with a person
approved by the Secretary of State, as may be determined under the
regulations (and to attend for the consultation at a place, date and time
determined under the regulations).
(5)
The regulations may include provision—
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(a)
for a negative determination to be treated as made if a person fails
without a good reason to comply with a requirement imposed under
subsection (4);
(b)
about what does or does not constitute a good reason for such a failure;
(c)
about matters which are, or are not, to be taken into account in
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determining whether a person has a good reason for such a failure.
(6)
In subsection (5)(a) a “negative determination” means a determination that a
person does not meet the requirements of—
(a)
section 76(1)(a) and (b) or (2)(a) and (b) (daily living component);
(b)
section 77(1)(a) to (c) or (2)(a) to (c) (mobility component).
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79
Required period condition: further provision
(1)
Regulations under section 78(2) must provide for the question of whether a
person meets “the required period condition” for the purposes of section 76(1)
or (2) or 77(1) or (2) to be determined by reference to—
(a)
whether, as respects every time in the previous 6 months, it is likely that
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if the relevant ability had been assessed at that time that ability would

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have been determined to be limited or (as the case may be) severely
limited by the person’s physical or mental condition; and
(b)
whether, as respects every time in the next 6 months, it is likely that if
the relevant ability were to be assessed at that time that ability would
be determined to be limited or (as the case may be) severely limited by
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the person’s physical or mental condition.
(2)
In subsection (1) “the relevant ability” means—
(a)
in relation to section 76(1) or (2), the person’s ability to carry out daily
living activities;
(b)
in relation to section 77(1) or (2), the person’s ability to carry out
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mobility activities.
(3)
In subsection (1)—
(a)
“assessed” means assessed in accordance with regulations under
section 78;
(b)
“the previous 6 months” means the 6 months ending with the
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prescribed date;
(c)
“the next 6 months” means the 6 months beginning with the day after
that date.
(4)
Regulations under section 78(2) may provide that in prescribed cases the
question of whether a person meets “the required period condition” for the
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purposes of section 76(1) or (2) or 77(1) or (2)—
(a)
is not to be determined in accordance with the provision made by
virtue of subsections (1) to (3) above;
(b)
is to be determined in accordance with provision made in relation to
those cases by the regulations.
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Entitlement and payability: further provision
80
Terminal illness
(1)
This section applies to a person who—
(a)
is terminally ill; and
(b)
has made a claim for personal independence payment expressly on the
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ground of terminal illness.
(2)
A person to whom this section applies is entitled to the daily living component
at the enhanced rate (and accordingly section 76(1) and (2) do not apply to such
a person).
(3)
Section 77(1)(c) and (2)(c) (required period condition for mobility component)
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do not apply to a person to whom this section applies.
(4)
For the purposes of this section a person is “terminally ill” at any time if at that
time the person suffers from a progressive disease and the person’s death in
consequence of that disease can reasonably be expected within 6 months.
(5)
For the purposes of this section, where—
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(a)
a person purports to make a claim for personal independence payment
on behalf of another, and
(b)
the claim is made expressly on the ground that the person on whose
behalf it purports to be made is terminally ill,

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that person is to be regarded as making the claim despite its being made
without that person’s knowledge or authority.
(6)
In subsection (2) “the enhanced rate” has the meaning given by section 76(3).
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Persons of pensionable age
(1)
A person is not entitled to the daily living component or the mobility
5
component for any period after the person reaches the relevant age.
(2)
In subsection (1) “the relevant age” means—
(a)
pensionable age (within the meaning given by the rules in paragraph 1
of Schedule 4 to the Pensions Act 1995); or
(b)
if higher, 65.
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(3)
Subsection (1) is subject to such exceptions as may be provided by regulations.
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No entitlement to daily living component where UK is not competent state
(1)
A person to whom a relevant EU Regulation applies is not entitled to the daily
living component for a period unless during that period the United Kingdom
is competent for payment of sickness benefits in cash to the person for the
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purposes of Chapter 1 of Title III of the Regulation in question.
(2)
Each of the following is a “relevant EU Regulation” for the purposes of this
section—
(a)
Council Regulation (EC) No 1408/71 of 14 June 1971 on the application
of social security schemes to employed persons, to self-employed
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persons and to members of their families moving within the
Community;
(b)
Regulation (EC) No 883/2004 of the European Parliament and of the
Council of 29 April 2004 on the coordination of social security systems.
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Persons receiving certain services
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(1)
Regulations may provide as mentioned in either or both of the following
paragraphs—
(a)
that no amount in respect of personal independence payment which is
attributable to entitlement to the daily living component is payable in
respect of a person for a period when the person meets the condition in
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subsection (2);
(b)
that no amount in respect of personal independence payment which is
attributable to entitlement to the mobility component is payable in
respect of a person for a period when the person meets the condition in
subsection (2).
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(2)
The condition is that the person is an in-patient of a hospital or similar
institution, or a resident of a care home, in circumstances in which any of the
costs of any qualifying services provided for the person are borne out of public
or local funds by virtue of a specified enactment.
(3)
In this section “care home” means an establishment that provides
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accommodation together with nursing or personal care.
(4)
The following are “qualifying services” for the purposes of subsection (2)—

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(a)
medical or other treatment which the person is undergoing as an in-
patient;
(b)
accommodation;
(c)
board;
(d)
personal care;
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(e)
such other services as may be prescribed.
(5)
The reference in subsection (2) to a “specified enactment” is to an enactment
which is specified for the purposes of that subsection by regulations or is of a
description so specified.
(6)
The power to specify an enactment for the purposes of subsection (2) includes
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power to specify it only in relation to its application for a particular purpose.
(7)
In this section “enactment” includes an enactment comprised in an Act of the
Scottish Parliament or in an instrument made under such an Act.
84
Prisoners
Except to the extent that regulations provide otherwise, no amount in respect
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of personal independence payment is payable in respect of a person for a
period during which the person is undergoing imprisonment or detention in
legal custody.
Supplementary
85
Claims, awards and information
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(1)
A person is not entitled to personal independence payment for any period
before the date on which a claim for it is made or treated as made by that
person or on that person’s behalf.
(2)
An award of personal independence payment is to be for a fixed term except
where the person making the award considers that a fixed term award would
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be inappropriate.
(3)
In deciding whether a fixed term award would be inappropriate, that person
must have regard to guidance issued by the Secretary of State.
(4)
Information supplied under this Part is to be taken for all purposes to be
information relating to social security.
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86
Report to Parliament
(1)
The Secretary of State must lay before Parliament an independent report on the
operation of assessments under section 78.
(2)
The report must be laid within 3 years beginning with the coming into force of
that section.
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