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The Employment and Support Allowance Regulations (Northern Ireland) 2016

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PART 1GENERAL

Citation, commencement and application

1.—(1) These Regulations may be cited as the Employment and Support Allowance Regulations (Northern Ireland) 2016.

(2) These regulations come into operation immediately after the coming into operation of the Universal Credit Regulations(1).

(3) They apply in relation to a particular case on any day on which Article 39(1)(b) of the Welfare Reform (Northern Ireland) Order 2015 (abolition of income-related employment and support allowance) is in operation and applies in relation to that case.

Interpretation

2.  In these Regulations—

“the Act” means the Welfare Reform Act (Northern Ireland) 2007;

“advanced education” means education for the purposes of—

(a)

a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business and Technology Education Council or the Scottish Qualifications Authority, or a teaching qualification; or

(b)

any other course which is of a standard above ordinary national diploma, a diploma of the Business and Technology Education Council or a higher or advanced higher national certificate of the Scottish Qualifications Authority or a general certificate of education (advanced level);

“benefit week” means a period of 7 days ending on such day as the Department may direct, but for the purposes of calculating any payment of income “benefit week” means the period of 7 days ending on—

(a)

the day before the first day of the first period of seven days which—

(i)

ends on such day as the Department may direct, and

(ii)

follows the date of claim for an employment and support allowance; or

(b)

the last day on which an employment and support allowance is paid if it is in payment for less than a week;

“carer’s allowance” means an allowance under section 70 of the Contributions and Benefits Act(2);

“child” means a person under the age of 16;

“the Children Order” means the Children (Northern Ireland) Order 1995(3);

“the Claims and Payments Regulations 2016” means the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016(4);

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister or, if any of the preceding persons is one member of a couple, the other member of that couple;

“confinement” has the meaning given to it by section 167(1) of the Contributions and Benefits Act(5);

“councillor” means a member of a district council;

“councillor’s allowance” means such payments for or in connection with the work which a person undertakes as a councillor;

“couple” means—

(a)

a man and woman who are married to each other and are members of the same household;

(b)

a man and woman who are not married to each other but are living together as husband and wife;

(c)

two people of the same sex who are civil partners of each other and are members of the same household; or

(d)

two people of the same sex who are not civil partners of each other but are living together as if they were civil partners,

and for the purposes of paragraph (d), two people of the same sex are to be regarded as living together as if they were civil partners only if they would be regarded as living together as husband and wife were they instead two people of the opposite sex;

“the Decisions and Appeals Regulations 1999” means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(6);

“the Decisions and Appeals Regulations 2016” means the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations (Northern Ireland) 2016(7);

“descriptor” means, in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which describes a person’s ability to perform that activity;

“the Disabled Persons (Employment) Act” means the Disabled Persons (Employment) Act (Northern Ireland) 1945(8);

“employed earner” means a person who is gainfully employed in Northern Ireland or the Republic of Ireland either under a contract of service or in an office (including elective office) with general earnings;

“employment” includes any trade, business, profession, office or vocation and “employed” has a corresponding meaning;

“the Employment and Training Act” means the Employment and Training Act (Northern Ireland) 1950(9);

“the Employment Rights Order” means the Employment Rights (Northern Ireland) Order 1996(10);

“family” means—

(a)

a couple;

(b)

a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person;

(c)

a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a young person;

“first contribution condition” means the condition set out in paragraph 1(1) of Schedule 1 to the Act(11);

“health care professional” means—

(a)

a registered medical practitioner;

(b)

a registered nurse; or

(c)

an occupational therapist or physiotherapist registered with a regulatory body established by an Order of Council under section 60 of the Health Act 1999(12);

“the Health and Personal Social Services Order” means the Health and Personal Social Services (Northern Ireland) Order 1972(13);

“the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987(14);

“the Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance Regulations (Northern Ireland) 2016(15);

“limited capability for work assessment” means the assessment described in regulation 15(2) and Schedule 2;

“the Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations (Northern Ireland) 1976(16);

“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly;

“member of Her Majesty’s forces” means a person, other than one mentioned in Part 2 of Schedule 1, who is—

(a)

over 16 years of age; and

(b)

a member of an establishment or organisation specified in Part 1 of that Schedule,

but does not include any such person while absent on desertion;

“the Mental Health Order” means the Mental Health (Northern Ireland) Order 1986(17);

“national living wage” means the national living wage rate specified in regulation 4 of the National Minimum Wage Regulations 2015(18) (national minimum wage rates);

“net earnings” means such earnings as are calculated in accordance with regulation 81;

“occupational pension scheme” has the meaning given by section 1 of the Pension Schemes (Northern Ireland) Act 1993(19);

“part-time employment” means, if the claimant were entitled to income support, employment in which the claimant is not to be treated as engaged in remunerative work under regulation 5 or 6(1) and (4) of the Income Support Regulations(20) (persons treated, or not treated, as engaged in remunerative work);

“partner” means—

(a)

where a claimant is a member of a couple, the other member of that couple; or

(b)

where a claimant is a husband or wife by virtue of a polygamous marriage, the other party to the marriage or any spouse additional to either party to the marriage;

“payment” includes a part of a payment;

“pay period” means the period in respect of which a claimant is, or expects to be, normally paid by the claimant’s employer, being a week, a fortnight, 4 weeks, a month or other shorter or longer period as the case may be;

“period of limited capability for work” means, except in regulation 3(2), a period throughout which a person has, or is treated as having, limited capability for work under these Regulations, and does not include a period which is outside the prescribed time for claiming as specified in regulation 27 of the (Claims and Payments) Regulations 2016;

“permanent health insurance payment” means any periodical payment arranged by an employer under an insurance policy providing benefits in connection with physical or mental illness or disability, in relation to a former employee on the termination of that person’s employment;

“personal pension scheme” means—

(a)

a personal pension scheme as defined by section 1 of the Pension Schemes (Northern Ireland) Act 1993(21);

(b)

an annuity contract, trust scheme or substituted contract which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(f) of Schedule 36 to the Finance Act 2004(22);

(c)

a personal pension scheme which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(g) of Schedule 36 to the Finance Act 2004;

“polygamous marriage” means any marriage entered into under a law which permits polygamy where—

(a)

either party has for the time being any spouse additional to the other party; and

(b)

the claimant, the other party to the marriage and the additional spouse are members of the same household;

“qualifying young person” has the meaning given by section 138(2) of the Contributions and Benefits Act(23) (child and qualifying young person);

“relative” means a close relative, grandparent, grandchild, uncle, aunt, nephew or niece;

“second contribution condition” means the condition set out in paragraph 2(1) of Schedule 1 to the Act;

“self-employed earner” means a person who is gainfully employed in Northern Ireland or the Republic of Ireland otherwise than in employed earner’s employment (whether or not he is also employed in such employment);

“state pension credit” means a state pension credit under the State Pension Credit Act (Northern Ireland) 2002(24);

“the Tax Credits Act” means the Tax Credits Act 2002(25);

“terminally ill”, in relation to a claimant, means the claimant is suffering from a progressive disease and death in consequence of that disease can reasonably be expected within 6 months;

“training” means—

(a)

training in pursuance of arrangements made under section 1 or 3 of the Employment and Training Act; or

(b)

any training received on a course which a person attends for 16 hours or more a week, the primary purpose of which is the teaching of occupational or vocational skills;

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—

(a)

out of public funds by a government department or by or on behalf of the Department for Employment and Learning;

(b)

to a person for that person’s maintenance or in respect of a member of that person’s family; and

(c)

for the period, or part of the period, during which the person is following a course of training or instruction provided by, or in pursuance of arrangements made with, a government department or approved by such department in relation to that person or so provided or approved by or on behalf of the Department for Employment and Learning,

but it does not include an allowance paid by any government department to, or in respect of, a person by reason of the fact that that person is following a course of full-time education, other than under provision or arrangements under sections 2 and 3 of the Disabled Persons (Employment) Act(26) or section 1(1) of the Employment and Training Act(27), or is training as a teacher;

“the Universal Credit Regulations” means the Universal Credit Regulations (Northern Ireland) 2016;

“voluntary organisation” means any association carrying on or proposing to carry on any activities otherwise than for the purpose of gain by the association or by individual members of the association;

“week” means a period of 7 days except in relation to regulation 22;

“working tax credit” means a working tax credit under section 10 of the Tax Credits Act;

“young person” is a person who, except where section 6 of the Children (Leaving Care) Act (Northern Ireland) 2002(28) (exclusion from benefits) applies, falls within the definition of qualifying young person in section 138 of the Contributions and Benefits Act.

Further interpretation

3.—(1) In these Regulations, any reference to the claimant’s family is to be construed as if it included in relation to a polygamous marriage a reference to any partner and any child or young person who is a member of the claimant’s household.

(2) For the purposes of paragraph 4 of Schedule 1 to the Act (condition relating to youth), “period of limited capability for work” means a period throughout which a person has, or is treated as having, limited capability for work.

(3) For the purposes of paragraph 5 of Schedule 1 to the Act, “week” means a period of 7 days.

(4) The Interpretation Act (Northern Ireland) 1954(29) applies to these Regulations as it applies to an Act of the Assembly.

Rounding of fractions

4.  For the purposes of these Regulations—

(a)where any calculation under these Regulations results in a fraction of a penny, that fraction is, if it would be to the claimant’s advantage, to be treated as a penny, but otherwise it must be disregarded;

(b)where an employment and support allowance is awarded for a period which is not a complete benefit week and the applicable amount in respect of the period results in an amount which includes a fraction of a penny, that fraction is to be treated as a penny.

(2)

1992 c.7; Section 70 was amended by Articles 2(2)(a) and 3 of S.R. 2002 No. 321 and other amendments not relevant to these Regulations

(5)

The definition of “confinement” was amended by Article 4(b) of the Still-Birth (Definition) (Northern Ireland) Order 1992.(S.I. 1992/1310 (N.I. 10))

(11)

Paragraph 1(1) of Schedule 1 was amended by section 12(2) of the Welfare Reform Act (Northern Ireland) 2010 (c. 13)

(12)

1999 c. 8. Section 60 was amended by section 26(9) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17), paragraph 1 of Schedule 8 and paragraph 10 of Schedule 10 to the Health and Social Care Act 2008 (c. 14), sections 209, 201 and 213 of, and paragraphs 60 and 72 of Schedule 15 to, the Health and Social Care Act 2012 (c. 7) and S.I.s 2002/253 and 2010/231

(18)

S.I. 2015/621, relevant amending instruments are S.I. 2015/1724 and 2016/68.

(19)

1993 c. 49; the definition “occupational pension scheme” was substituted by Article 216(3) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005 No. 255 (N.I. 1)) and amended by regulation 2(2) of S.R. 2007 No. 457

(21)

The definition of “personal pension scheme” was substituted by Article 216(3) of the Pensions (Northern Ireland) Order 2005

(23)

Section 138 was substituted by section 2(2) of the Child Benefit Act 2005 (c. 6)

(26)

Sections 2 and 3 were amended by section 1 of the Disabled Persons (Employment) Act 1960 (c. 4) (N.I.) and Schedule 18 to the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3))

(27)

Section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10))

(28)

2002 c. 11 (N.I.). Section 6 was amended by Schedule 4 to the Welfare Reform Act (Northern Ireland) 2010

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