The Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make transitional provision in relation to the introduction of employment and support allowance and apply to persons entitled to any existing award (which is defined in Schedule 4 to the Welfare Reform Act (Northern Ireland) 2007 in terms of incapacity benefit, severe disablement allowance and income support on the grounds of incapacity or disability). The Regulations set out the process for determining whether existing awards are to be converted into awards of an employment and support allowance. An award may be converted only if certain conditions are satisfied in relation to the person entitled to the award.

The Regulations also make related amendments to the Housing Benefit Regulations (Northern Ireland) 2006 and the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001.

Part 2 and Schedule 1 set out the process for determining whether or not a person’s existing award is to be converted into an award of an employment and support allowance. The conversion process operates on an individual basis and, in each case, begins when the Department sends a notice under regulation 4 to the person. Where the person is entitled to more than one existing award the notice and conversion process apply to both awards. Regulation 5 requires the Department to determine whether or not the existing award or awards qualify for conversion and to notify the person accordingly. There is also provision for notification to be given in the event that an existing award ceases to be subject to conversion. To facilitate this determination regulation 6 and Schedule 1 apply certain statutory provisions that already have effect in relation to persons who make a claim for an employment and support allowance. Schedule 1 makes modifications to these statutory provisions to take account of the different circumstances that arise because a person is already entitled to an existing award and is not required to make a claim. There is also provision to enable the Department to obtain information in order to make conversion decisions and to provide for conversion decisions to be revised before they come into effect.

Under regulation 7, a person’s existing award or awards qualify for conversion if the person satisfies the basic conditions for entitlement to an employment and support allowance, except for the condition that they are not entitled to income support. One of these basic conditions is that the person has limited capability for work. This will be determined on an individual basis in accordance with the arrangements for the limited capability for work assessment set out in the Employment and Support Allowance Regulations (Northern Ireland) 2008, as modified by Schedule 1 to these Regulations.

If an existing award or awards do qualify for conversion, the Department must determine in accordance with regulations 8 to 12 the amount to which the person is entitled. In broad terms, this is the aggregate of the amount to which the person would have been entitled on a successful claim for an employment and support allowance and the additional amount referred to in the Regulations as a “transitional addition”. The transitional addition is based on the difference between specified elements of the person’s existing award and specified elements of the employment and support allowance into which it is to be converted.

The date on which the Department’s decision about conversion comes into effect is provided for in regulation 13, and regulations 14 and 15 set out the consequences which follow from the decision. Where the decision is that a person’s award or awards do qualify for conversion, regulation 14 converts them into a single award of employment and support allowance. Where the decision is that a person’s existing award or awards do not qualify, regulation 15 provides that the award or awards terminate immediately before the effective date of the conversion decision.

Part 3 of, and Schedules 2 and 3 to, the Regulations set out the framework which has effect in relation to any person with effect from the effective date of their conversion decision made under Part 2 of the Regulations. In relation to any matter to be determined in connection with a person’s entitlement to an employment and support allowance (including a decision not to convert an award), regulation 16 and Schedules 2 and 3 apply certain statutory provisions that already have effect in relation to an award of employment and support allowance made following a claim. This includes provision for revision, supersession and appeals in connection with conversion decisions which have come into effect. There are modifications of these statutory provisions in Schedule 2. Regulation 17 makes provision about a change of circumstances occurring before the effective date of a conversion decision. Regulations 18 to 20 set out the circumstances in which the amount is to be reduced and regulation 21 provides for termination when the amount is reduced to nil, when the person ceases to be entitled to an employment and support allowance or 5th April 2020 (whichever occurs first).

Part 4 of the Regulations contains miscellaneous provisions, including provision in regulation 24 which omits the saving in regulation 2(2)(a), (b) and (c) of the Employment and Support Allowance (Transitional Provisions) Regulations (Northern Ireland) 2008 that enables a person previously entitled to incapacity benefit, severe disablement allowance and income support on grounds of incapacity or disability to make a repeat (linked) claim for that benefit in certain circumstances, rather than a new claim for employment and support allowance. This provision comes into operation on 31st January 2011.

Regulation 25 omits regulation 31 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 which provides that a claimant who claims a jobseeker’s allowance and is able to show a reasonable prospect of obtaining employment is throughout that claim to be treated as not having limited capability for work. Regulation 25 also amends regulation 144 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 so that a person does not have to serve a period of waiting days in relation to a new claim for employment and support allowance if that person would have benefited from the saving omitted by regulation 24 if they had made a claim before 31st January 2011.

Regulation 26 and Schedule 4 provide for amendments to legislation relating to housing benefit which complement the conversion process. Part 1 of Schedule 4 makes amendments to the Housing Benefit Regulations (Northern Ireland) 2006, providing for a transitional addition to a claimant’s applicable amount where the claimant or the claimant’s partner has had an award of benefit converted to an employment and support allowance in accordance with these Regulations or is appealing a decision not to convert an award to an employment and support allowance. Part 2 of Schedule 4 amends the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 to make provision for the supersession of awards of housing benefit to take account of conversion decisions.

Paragraphs 7 and 8 of Schedule 4 to the Welfare Reform Act (Northern Ireland) 2007, some of the enabling provisions under which these Regulations are made, were brought into operation on 9th September 2010, by virtue of the Welfare Reform (2007 Act) (Commencement No. 8) Order (Northern Ireland) 2010 (S.R.2010 No. 308 (C. 17)).

In so far as these Regulations are required, for the purposes of regulation 26 and Schedule 4, to be referred to the Social Security Advisory Committee under section 149(2) of the Social Security Administration (Northern Ireland) Act 1992, after agreement by the Social Security Advisory Committee, they have not been so referred by virtue of section 150(1)(b) of that Act. Otherwise they 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, that Act, are not subject to the requirement of section 149(2) for prior reference to the Social Security Advisory Committee.