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The Welfare Reform (Northern Ireland) Order 2015 (Commencement No. 8 and Transitional and Transitory Provisions) Order 2017

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Transition from old style ESA

11.—(1) This article applies where a person—

(a)makes, or is treated as making, a claim for an employment and support allowance and, under Article 6, Part 1 of the 2007 Act, as amended by the provisions of Schedule 3, and Part 1 of Schedule 12, to the 2015 Order that remove references to an income-related allowance, applies in relation to the claim; or

(b)(i)has an old style ESA award immediately before the appointed day in relation to a case of a claim for universal credit referred to in Article 6(2) (and any award made in respect of the claim); and

(ii)the old style ESA award consists of or includes a contributory employment and support allowance (which allowance therefore continues as a new style ESA award),

and, in the case of sub-paragraph (a), the condition referred to in paragraph (2) is satisfied.

(2) The condition is that—

(a)the person previously made, or was treated as having made, a claim for an employment and support allowance and Part 1 of the 2007 Act, as it has effect apart from the provisions of Schedule 3, and Part 1 of Schedule 12, to the 2015 Order that remove references to an income-related allowance, applied in relation to the claim; or

(b)a notice was issued to the person under regulation 4 of the 2010 Transitional Regulations and Part 1 of the 2007 Act, as that part has effect apart from the provisions of Schedule 3, and Part 1 of Schedule 12, to the 2015 Order that remove references to an income-related allowance, applied in relation to the notice.

(3) Where this article applies, the ESA Regulations 2016 are to be read as if—

(a)(i)in the definitions of “period of limited capability for work” in regulations 2 (interpretation) and 3 (further interpretation), the reference to a period throughout which a person has, or is treated as having, limited capability for work included a reference to a period throughout which the person in question had, or was treated as having, limited capability for work under the ESA Regulations 2008; and

(ii)the reference, in the definition in regulation 2, to regulation 27 of the Claims and Payments Regulations 2016 (time within which a claim for employment and support allowance is to be made) included a reference to regulation 19 of, and Schedule 4 to, the Claims and Payments Regulations 1987 (prescribed times for claiming benefit);

(b)in regulation 6 (the assessment phase - previous claimants)—

(i)any reference to an employment and support allowance included a reference to an old style ESA award; and

(ii)in paragraph (3)(b)(v) and (c)(iii), the reference to regulation 26 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made) included a reference to regulation 30 of the ESA Regulations 2008 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made);

(c)in regulation 7 (circumstances where the condition that the assessment phase has ended before entitlement to the support component arises does not apply)—

(i)any reference to an employment and support allowance included a reference to an old style ESA award; and

(ii)in paragraph (3)(b)(iv), (c)(iii), (c)(iv) and (d)(iii), the reference to regulation 26 included a reference to regulation 30 of the ESA Regulations 2008;

(d)in regulation 11 (condition relating to youth - previous claimants), any reference to an employment and support allowance included a reference to an old style ESA award;

(e)in regulation 15 (determination of limited capability for work)—

(i)the reference in paragraph (7)(a) to a claimant having been determined to have limited capability for work, included a reference to such a determination made under Part 5 of the ESA Regulations 2008; and

(ii)the reference in paragraph (7)(b) to a person being treated as having limited capability for work included a reference to a person being so treated under regulation 20 (certain claimants to be treated as having limited capability for work), 25 (hospital patients), 26 (claimants receiving certain regular treatment) or 29 (exceptional circumstances) of the ESA Regulations 2008;

(f)in regulation 26 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made)—

(i)in paragraph (2)(b), the reference to regulation 18 (failure to provide information in relation to limited capability for work) and 19 (claimant may be called for a medical examination to determine whether the claimant has limited capability for work) included a reference to regulation 22 (failure to provide information in relation to limited capability for work) and 23 (claimant may be called for a medical examination to determine whether the claimant has limited capability for work) of the ESA Regulations 2008; and

(ii)in paragraph (4)(c), the reference to regulation 18 included a reference to regulation 22 of the ESA Regulations 2008;

(g)in regulation 30(4) (determination of limited capability for work-related activity), the reference to a determination about whether a claimant has, or is to be treated as having or not having, limited capability for work-related activity included such a determination that was made under Part 6 of the ESA Regulations 2008;

(h)in regulation 39(6) (exempt work), the reference to an employment and support allowance included a reference to an old style ESA award;

(i)in regulation 85(2)(a) (waiting days), where a claimant was entitled to an old style ESA award with effect from the first day of a period of limited capability for work by virtue of regulation 144(2)(a) of the ESA Regulations 2008 and, with effect from the second or third day of that period, that award continued as a new style ESA award in the circumstances referred to in paragraph (1)(b) of this Article, the reference to an employment and support allowance included a reference to the old style ESA award;

(j)in regulation 87(1) (claimants appealing a decision), the reference to a determination that the claimant does not have limited capacity for work under the ESA Regulations 2016 included a reference to such a determination under the ESA Regulations 2008;

(k)in regulation 89 (short absence), where—

(i)a claimant had an old style ESA award in the circumstances referred to in paragraph (1)(b) of this Article;

(ii)a temporary absence from Northern Ireland commenced when regulation 152 of the ESA Regulations 2008 applied to the claimant; and

(iii)the first 4 weeks of the temporary absence had not ended immediately before the first day of entitlement to the new style ESA award,

the initial words of regulation 89 included a reference to the claimant being entitled to the new style ESA award during the remainder of the first 4 weeks of the temporary absence that commenced when regulation 152 of the ESA Regulations 2008 applied to the claimant;

(l)in regulation 90 (absence to receive medical treatment), where—

(i)a claimant had an old style ESA award in the circumstances referred to in paragraph (1)(b) of this Article;

(ii)a temporary absence from Northern Ireland commenced when regulation 153 of the ESA Regulations 2008 applied to the claimant; and

(iii)the first 26 weeks of the temporary absence had not ended immediately before the first day of entitlement to the new style ESA award,

the initial words of paragraph (1) of regulation 90 included a reference to the claimant being entitled to the new style ESA award during the remainder of the first 26 weeks of the temporary absence that commenced when regulation 153 of the ESA Regulations 2008 applied to the claimant;

(m)in regulation 93 (disqualification for misconduct etc)—

(i)in paragraph (3), for “Paragraph (2) does” there were substituted “Paragraphs (2) and (5) do”; and

(ii)after paragraph (4) there were inserted—

(5) Subject to paragraph (3), a claimant is to be disqualified from receiving an employment and support allowance for any period determined by the Department under regulation 157(2) of the Employment and Support Allowance Regulations 2008 less any days during that period on which those Regulations applied to the claimant.

(6) Where paragraph (5) applies to a claimant, paragraph (2) is not to apply to that claimant with respect to any matter referred to in paragraph (1) that formed the basis for the claimant’s disqualification under regulation 157(2) of the Employment and Support Allowance 2008.;

(n)in regulation 95 (treating a claimant as not having limited capability for work), the existing words became paragraph (1) and—

(i)at the beginning of paragraph (1), there were inserted “Subject to paragraph (2),”; and

(ii)after paragraph (1), there were inserted—

(2) A claimant is to be treated as not having limited capability for work if—

(a)under Part 1 of the 2007 Act as it has effect apart from the amendments made by Schedule 3, and Part 1 of Schedule 12, to the 2015 Order that remove references to an income-related allowance (“the former law”), the claimant was disqualified for receiving a contributory employment and support allowance during a period of imprisonment or detention in legal custody;

(b)Part 1 of the 2007 Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 12, to the 2015 Order that remove references to an income-related allowance (“the current law”) applied to the claimant with effect from a day that occurred during the period of imprisonment or detention in legal custody referred to in sub-paragraph (a) and during the period of 6 weeks with effect from the day on which the claimant was first disqualified as referred to in sub-paragraph (a); and

(c)the total of—

(i)the period for which the claimant was disqualified for receiving a contributory employment and support allowance during the period of imprisonment or detention in legal custody when the former law applied to the claimant; and

(ii)the period for which the claimant was disqualified for receiving an employment and support allowance during the period of imprisonment or detention in legal custody when the current law applied to the claimant,

amounts to more than 6 weeks..

(4) Subject to paragraph (5), where this article applies, the 2007 Act is to be read as though—

(a)the reference to an employment and support allowance in section 1A(1) and (4) to (6)(1);

(b)the first reference to an employment and support allowance in section 1A(3); and

(c)the first reference to an employment and support allowance in section 1B(2),

included a reference to a contributory employment and support allowance

(5) Where this article applies and the 2010 Transitional Regulations apply to a person, paragraph (4)(c) becomes paragraph (4)(b) and, for paragraph (4)(a) and (b), there is substituted—

(a)in section 1A as substituted by the 2010 Transitional Regulations—

(i)the reference to an employment and support allowance in section 1A(1), (4) and (5); and

(ii)the first reference to an employment and support allowance in section 1A(3); and.

(6) Where this article applies and a claimant had an old style ESA award in the circumstances referred to in paragraph (1)(b); the 2007 Act is to be read as if, in section 24(2), the beginning of the assessment phase (subject to section 24(3)) was the first day of the period for which the claimant was entitled to the old style ESA award.

(1)

Section 1A was inserted by Article 57(1) of the 2015 Order.

(2)

Section 1B was inserted by Article 58(1) of the 2015 Order.

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