I have a client who has recently spent time in India and continued to receive Incapacity Benefit and DLA (HR Mob and HR Care)whilst there.

She came back to the UK on 29.09.05 and wants to return again in Jan 06 for upto 26 weeks and continue to live part of the year in the UK and part in India (our winter).

Has anybody any info on whether this would be acceptable.

She has been in receipt of Incap and DLA for many years.

Cheers.

The short answer is that it would not be acceptable - such benefits are not payable for these sorts of periods spent overseas, with the exception of State Pension.

Secondly, in a DM's mind, do you not think that this will possibly raise a serious question over the continuing entitlement to the highest rates of DLA MOB and Care?.

Thank you for your response of which i totally agree, especially where the DLA is concerned!
But having looked at the Decision Makers Guide, it states at 071424 to 071426 that it would be acceptable!
Any further comment?

my understnading is that you can continue to receive DLA if you can show that you have been present in the UKL for a total of 26 weeks in the last 12 months. you are treated as being present during a temporary absence of up to 26 weeks.

however if the change in climate improves your conditon - eg, you can walk further - have fewer breathing problems etc it is arguable that you are no longer entitled to the same rate of award?

I would refer you to regulation 2 of the Disability Living Regulations 1991. To be paid DLA abroad your client needs to satisfy the provisions laid out here.

From the information you provide i would suggest they don't.

For the purposes of Incapacity Benefit look at regulation 3 of the Social Security Benefit (Persons Abroad) Regulations 1975.

The 26 weeks absent can be increased if they can show that they will be getting specific treatment overseas. If treatment is seeked/provided whilst there then the rule becomes more flexible. The treatment has to be provided by a qualified person (though does not have to be a DR)

You cannot argue that wintering in India is a treatment even though it may be medically beneficial and medically recommended by a Dr (warm weather does have therapeutic effect on certain conditions). See meaning of treatment in DMG.