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

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010 (“the Existing Awards Regulations”), the Employment and Support Allowance Regulations (Northern Ireland) 2008 (“the Employment and Support Allowance Regulations”) and the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001.

Regulation 2 amends the Existing Awards Regulations as follows—

• paragraph (2) amends regulation 3 to make clear that regulations 4 to 22 apply to any person who, on or after 1st October 2010, is entitled to an existing award;

• paragraph (3) amends regulation 7 to provide that where a person’s existing award qualifies for conversion but that person is already entitled to an award of employment and support allowance such a person is to be taken as having satisfied the limited capability for work condition;

• paragraph (4) amends regulation 8 so that where a person who is already entitled to employment and support allowance qualifies for conversion (under regulation 7 as amended) any determination in relation to limited capability for work-related activity applies for the purposes of step 1 of determining the amount of employment and support allowance to which a person is entitled;

• paragraph (5) amends regulation 10 to list all the elements of incapacity benefit and severe disablement allowance needed to calculate the weekly payable rate of those benefits and therefore the correct amount of transitional addition;

• paragraph (6) amends regulation 14 in relation to cases where a person’s existing award of income support qualifies for conversion to employment and support allowance and that person satisfies another condition of entitlement to income support. If the person notifies the Department for Social Development of their wish to remain entitled to income support, then any entitlement to incapacity benefit, severe disablement allowance or an income support disability premium (where entitlement arises solely on the grounds of incapacity) terminates immediately before the effective date of the conversion decision. It also provides that where a person is already entitled to an award of employment and support allowance by virtue of the Welfare Reform Act (Northern Ireland) 2007, and not by virtue of the Existing Awards Regulations, then that award shall terminate immediately before the effective date of a person’s conversion decision;

• paragraph (7) amends regulation 15 to make similar provision to paragraph (6) where the conversion decision is that an existing award of income support does not qualify for conversion;

• paragraph (8) amends regulation 17 in consequence of the amendments made to regulations 14 and 15;

• paragraph (9) amends regulation 19 to clarify how the amount of the transitional addition is to be reduced where a person has dependent children;

• paragraph (10) makes a similar amendment to regulation 20 to clarify how the amount of the transitional addition is to be reduced where a person has a dependent adult;

• paragraph (11) amends regulation 21 to provide that where regulation 145(1) of the Employment and Support Allowance Regulations applies, what would otherwise have been a termination of a transitional addition is instead a suspension., where it is determined that a person has limited capability for work in relation to a claim subsequent to when that determination was first made as part of a conversion decision;

• paragraph (12) adds the provision in the Social Security (Contributions and Benefits) (Northern Ireland) Act 1992 covering days and periods of incapacity for work to the list of provisions disapplied following a conversion decision;

• paragraph (13) amends Schedule 1 to ensure that persons who are receiving relevant education and are entitled to an existing award of income support as a result, can qualify for an award of employment and support allowance;

• paragraph (14) makes a number of amendments to Schedule 2, including amending the conditions of entitlement for employment and support allowance following the conversion phase to include the conditions relating to financial position in Part 2 of Schedule 1 to the Welfare Reform Act (Northern Ireland) 2007 where a person’s award of income support converts to an award of employment and support allowance; it also provides that a person who has made and is pursuing an appeal against a conversion decision where they had previously been entitled to an existing award of incapacity benefit or severe disablement allowance is treated as having already satisfied the contributions conditions for contributory employment and support allowance and modifies the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 to make it possible to revise certain types of decisions relating to the conversion process in particular circumstances;

• paragraph (15) amends Schedule 3 to include the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.

Regulation 3 amends the Income Support (General) Regulations (Northern Ireland) 1987 so that, subject to savings, entitlement to an income support disability premium ceases where it solely relates to being incapable of work.

Regulation 4 amends the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 to remove the disapplication from regulation 55 where a person had been unable to work within 8 weeks of an entitlement to incapacity benefit, severe disablement allowance or income support and remove references to those benefits from regulation 55A.

Regulation 5 amends the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 to ensure that certain housing benefit decisions may be superseded where a claimant’s partner is appealing a conversion decision.

Regulation 6 amends regulation 148 to 150 of the Employment and Support Allowance Regulations in relation to “work or training beneficiaries”. The amendments expand the definition of a work or training beneficiary to include those whose previous period of limited capability for work lasted for less than 13 weeks immediately following their migration to employment and support allowance from another benefit. A work or training beneficiary is also treated as having limited capability for work from the first day within a linking term rather than for a 13 week period within that linking term.

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)).

These Regulations 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.