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The Employment and Support Allowance Regulations (Northern Ireland) 2016

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PART 2THE ASSESSMENT PHASE

The end of the assessment phase

5.—(1) Subject to paragraphs (2) and (3) and regulation 6, the assessment phase in relation to a claimant ends on the last day of the relevant period.

(2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(3) This paragraph applies where, at the end of the relevant period—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b)the claimant has not been being treated as having limited capability for work in accordance with regulation 16, 21, 22 or 25.

(4) In this regulation “the relevant period” means the period of 13 weeks beginning with—

(a)the first day of the assessment phase as determined under section 24(2)(a) of the Act; or

(b)where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.

(5) In paragraph (4) “extended period of sickness” means a period in which the claimant was—

(a)entitled to a jobseeker’s allowance; and

(b)treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996(1) or regulation 46 of the Jobseeker’s Allowance Regulations (extended periods of sickness).

The assessment phase – previous claimants

6.—(1) Where the circumstances in paragraph (3) apply in relation to a claimant the assessment phase—

(a)begins on the first day of the period for which the claimant was previously entitled to an employment and support allowance; and

(b)subject to paragraphs (4), (5) and (6), ends on the day when the sum of the period for which the claimant was previously entitled to an employment and support allowance and the period for which the claimant is currently entitled to such an allowance is 13 weeks.

(2) For the purposes of paragraph (1), any period when the claimant was—

(a)entitled to a jobseeker’s allowance; and

(b)treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 or regulation 46 of the Jobseeker’s Allowance Regulations,

is to be treated as a period when the claimant was previously entitled to an employment and support allowance.

(3) The circumstances are that—

(a)(i)the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 86,

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii)the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance, and

(iv)the period for which the claimant was previously entitled was no more than 13 weeks;

(b)(i)the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 86,

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii)the previous period of limited capability for work was terminated by virtue of a determination that the claimant did not have limited capability for work,

(iv)the period for which the claimant was previously entitled was no more than 13 weeks, and

(v)a determination is made in relation to the current period of limited capability for work that the claimant has or is treated as having limited capability for work, other than under regulation 26; or

(c)(i)the claimants’ current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 86,

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii)in relation to the previous award of an employment and support allowance, a determination was made that the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 26, and

(iv)the period for which the claimant was previously entitled was no more than 13 weeks.

(4) Where paragraph (5) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(5) This paragraph applies where, on the day referred to in paragraph (1)(b)—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b)the claimant has not been treated as having limited capability for work in accordance with regulation 16, 21, 22 or 25.

(6) Where a person has made and is pursuing an appeal against a decision of the Department that embodies a determination that the claimant does not have limited capability for work—

(a)paragraphs (4) and (5) do not apply; and

(b)paragraph (1) does not apply to any period of limited capability for work to which regulation 87(2) applies until a determination of limited capability for work has been made following the determination of the appeal by the appeal tribunal.

Circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arises does not apply

7.—(1) Subject to paragraph (4), section 2(2)(a) and (3)(a) of the Act does not apply where—

(a)a claimant is terminally ill and has either—

(i)made a claim expressly on the ground of being terminally ill, or

(ii)made an application for supersession or revision in accordance with the Decisions and Appeals Regulations 1999 or the Decisions and Appeals Regulations 2016 which contains an express statement that the claimant is terminally ill;

(b)the case is a relevant linked case;

(c)(i)the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support coming to an end,

(ii)in relation to that entitlement to income support, immediately before it ended, the claimant’s applicable amount included the disability premium by virtue of their satisfying the conditions in paragraphs 11 and 12 of Schedule 2 to the Income Support Regulations, and

(iii)that entitlement to income support ended only by virtue of the coming into operation, in relation to the claimant, of the Social Security (Lone Parents and Miscellaneous Amendments) Regulations (Northern Ireland) 2008(2); or

(d)a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act(3) (further entitlement after time-limiting).

(2) For the purposes of paragraph (1)(b) a relevant linked case is a case mentioned in paragraph (3) where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 86.

(3) Paragraph (2) applies to the following cases—

(a)case 1 is where—

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under section 2(2) or 2(3) of the Act) in the earlier period of limited capability for work, and

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by virtue of a determination that the claimant did not have limited capability for work;

(b)case 2 is where—

(i)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of a determination that the claimant did not have, or was treated as not having, limited capability for work, and

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 26;

(c)case 3 is where—

(i)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated before it could be determined whether the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 26, and

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 26; and

(d)case 4 is where—

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under section 2(2) or (3) of the Act) in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated because it was determined that the claimant did not have limited capability for work or was treated as not having limited capability for work, and

(iii)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 26.

(4) Paragraph 1(b) does not apply to any period of limited capability for work to which regulation 87(2) applies until the determination of limited capability for work has been made following the determination of the appeal by the appeal tribunal.

(1)

S.R. 1996 No. 198; Regulation 55ZA was inserted by regulation 2(5) of S.R. 2015 No. 138.

(3)

Section 1B was inserted by Article 58(1) of the Welfare Reform (Northern Ireland) Order 2015

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