The Employment and Support Allowance (Consequential Amendments and Transitional and Savings Provisions) Regulations (Northern Ireland) 2017

Regulation 4(1)

SCHEDULE 1 Employment and Support Allowance: amendments to secondary legislation consequential on removal of work-related activity component

Amendment of the Income Support Regulations (Northern Ireland) 1987

1.—(1) The Income Support (General) Regulations (Northern Ireland) 1987(1) are amended in accordance with paragraphs (2) and (3).

(2) In regulation 2(1) (interpretation) after the definition of “the Macfarlane (Special Payments) (No. 2) Trust” insert—

““member of the support group” means a claimant who has or is treated as having limited capability for work-related activity under either—

(a)

Part 6 of the Employment and Support Allowance Regulations (Northern Ireland) 2008; or

(b)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2016;

“member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations; or

(b)

Part 4 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 other than by virtue of regulation 26 of those regulations;”.

(3) In Schedule 3 (housing costs)—

(a) in paragraph 1 (housing costs)—

(i) in sub-paragraph (3)(d)(i)—

(aa) omit “or (3)”, “or (5)” and “(components)”;

(bb) after “Welfare Reform Act” insert “(component) or is a member of the work-related activity group”;

(ii) in sub-paragraph (3)(d)(ii) omit “including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component)”; and

(b) in paragraph 18(7)(i) (non-dependant deductions) for the words from “which does not include” to the end substitute “and is not a member of the work-related activity group or a member of the support group.”.

Amendment of the Social Fund (Cold Weather Payments) (General) Regulations (Northern Ireland) 1988

2.—(1) The Social Fund (Cold Weather Payments) (General) Regulations (Northern Ireland) 1988(2) are amended in accordance with paragraphs (2) and (3).

(2) In regulation 1(2) (interpretation) after the definition of “mean daily temperature” insert—

““member of the support group” means a claimant who has or is treated as having limited capability for work-related activity under Part 6 of the Employment and Support Allowance Regulations (Northern Ireland) 2008;

“member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations;”.

(3) In regulation 1A(3)(e) (prescribed description of persons)—

(a) for “, P’s applicable amount includes” substitute “and”;

(b) in head (i) before “one or more” insert “P’s applicable amount includes”; and

(c) for head (ii) substitute—

“(ii) P is a member of the work-related activity group or is a member of the support group;”.

Amendment of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996

3.—(1) The Jobseeker’s Allowance Regulations (Northern Ireland) 1996(3) are amended in accordance with paragraphs (2) and (3).

(2) In regulation 1(2)(interpretation) after the definition of “maternity leave” insert—

““member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations; or

(b)

Part 4 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 other than by virtue of regulation 26 of those regulations;”.

(3) In Schedule 2 (housing costs)—

(a) in paragraph 1(3)(e) (housing costs)—

(i) in sub-paragraph (i)—

(aa) omit “or (3)” and “or (5)”;

(bb) for “(components)” substitute “(component)”;

(ii) in sub-paragraph (ii) omit “including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component)”; and

(b) in paragraph 17(7)(i)—

(i) omit “or (5)” and “(components)”;

(ii) after “Welfare Reform Act” insert “(component) and is not a member of the work-related activity group”.

Amendment of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001

4.  In regulation 7(2)(j)(iv)(bb) of the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001(4) (decisions superseding earlier decisions) omit “or the work-related activity component”.

Amendment of the State Pension Credit Regulations (Northern Ireland) 2003

5.—(1) The State Pension Credit Regulations (Northern Ireland) 2003(5) are amended in accordance with paragraphs (2) and (3).

(2) In regulation 1(2) (interpretation) after the definition of “the Macfarlane (Special Payments) (No. 2) Trust” insert—

““member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations; or

(b)

Part 4 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 other than by virtue of regulation 26 of those regulations;”.

(3) In Schedule 2 (housing costs)—

(a) in paragraph 1(2)(b)(iv) (housing costs) for “or (3) or 4(4) or (5) of the Welfare Reform Act (components) or would be entitled to an employment and support allowance including an amount of a work-related activity component under section 2(3) of that Act (amount of contributory allowance: work-related activity component)” substitute “or 4(4) of the Welfare Reform Act (component) or is a member of the work-related activity group or they would have been a member of the work-related activity group”; and—

(b) in paragraph 14(7)(g) (persons residing with the claimant)—

(i) omit “or (5)”; and

(ii) for “(components)” substitute “(component) or is not a member of the work-related activity group”.

Amendment of the Housing Benefit Regulations (Northern Ireland) 2006

6.—(1) The Housing Benefit Regulations (Northern Ireland) 2006(6) are amended in accordance with paragraphs (2) to (8).

(2) In regulation 2(1)(interpretation) after the definition of “member of the armed forces away on operations” insert—

““member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations; or

(b)

Part 4 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 other than by virtue of regulation 26 of those regulations;”.

(3) In regulation 20 (applicable amounts) for paragraph (e) substitute—

“(e) the amount of the support component which may be applicable to him in accordance with Part V of Schedule 4 (the component);”.

(4) In regulation 21 (polygamous marriages) for paragraph (f) substitute—

“(f) the amount of the support component which may be applicable to him in accordance with Part V of Schedule 4 (the component);”.

(5) In regulation 25(11) (treatment of childcare charges)—

(a) in sub-paragraph (a) for “the work-related activity component” substitute “the other member is a member of the work-related activity group”; and

(b) in sub-paragraph (ba) for “the work-related activity component” substitute “the other member would be a member of the work-related activity group”.

(6) In regulation 72(8)(a) (non-dependant deductions)—

(a) omit “and the work-related activity component”;

(b) at the end insert “or where the non-dependant is not a member of the work-related activity group”.

(7) In Schedule 4 (applicable amounts)—

(a) in Part V (the components)—

(i) in the heading, for “components” substitute “component”;

(ii) in paragraph 21(1)—

(aa) for “one, but not both, of the components in paragraph 23 or” substitute “the component in paragraph”;

(bb) for paragraph (b) substitute—

“(b) the Department has determined that that the claimant or the claimant’s partner has or is treated as having limited capability for work-related activity;”;

(cc) in paragraph (c)(ii) omit “the work-related activity component”;

(iii) in paragraph 22(1) and (2) omit “23 or”;

(iv) omit paragraph 23; and

(b) in Part VI (amount of components)—

(i) in the heading for “components” substitute “component”;

(ii) omit paragraph 25.

(8) In Schedule 5 (sums to be disregarded in the calculation of earnings)—

(a) in paragraph 3(2)—

(i) omit “, work-related activity component”;

(ii) after “Schedule 4” insert “or where the claimant or the claimant’s partner is a member of the work-related activity group”; and

(b) in paragraph 17(2)(b)(iv)—

(i) in paragraph (aa)—

(aa) omit “, the work-related activity component under paragraph 23;”;

(bb) after “of Schedule 4” insert “, or the claimant or the claimant’s partner is a member of the work-related activity group”;

(ii) in paragraph (bb)—

(aa) omit “, the work-related activity component”;

(bb) for the words from “and is engaged” to the end substitute “or at least one of the couple is a member of the work-related activity group; or”.

Amendment of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006

7.—(1) The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006(7) are amended in accordance with paragraphs (2) to (5).

(2) In regulation 2(1)(interpretation) after the definition of “member of the armed forces away on operations” insert—

““member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those Regulations; or

(b)

Part 4 of the Employment and Support Allowance Regulations (Northern Ireland) 2016 other than by virtue of regulation 26 of those Regulations;”.

(3) In regulation 29(11)(ba) (treatment of childcare charges)—

(a) omit “or the work-related activity component”; and

(b) after “limited capability for work” insert “or the other member of the couple would be a member of the work-related activity group”.

(4) In regulation 53(8) (non-dependant deductions)—

(a) in sub-paragraph (a)—

(i) omit “and the work-related activity component”; and

(ii) at the end insert “or where the non-dependant is not a member of the work-related activity group”;

(b) in sub-paragraph (b)—

(i) omit “and the work-related activity component”; and

(ii) at the end insert “or where the non-dependant is not a member of the work-related activity group”.

(5) In Schedule 5 (sums disregarded from claimant’s earnings) in paragraph 5(1)(d)(ii) omit “or the work-related activity component”.

Regulation 4(2)

SCHEDULE 2 Employment and Support Allowance: transitional and savings provisions

Transitional and savings provisions: General

1.—(1) The amendments made by regulations 2 and 3 of, and paragraphs 1 to 7 of Schedule 1 to, these Regulations and by Article 9(1) to (3) of the Welfare Reform and Work (Northern Ireland) Order 2016 (which amend sections 2 and 4 of the Welfare Reform Act (Northern Ireland) 2007) do not apply where any of the circumstances in paragraphs 2 to 7 apply.

(2) In this Schedule—

“assessment phase” has the same meaning as in the Welfare Reform Act (Northern Ireland) 2007(8);

“a claim” means a claim for an employment and support allowance in accordance with regulations 4ZC, 4F, 4G and 4H of the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(9) or regulations 12 to 16 of the Universal Credit, Personal Independent Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016(10);

“employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007;

“ESA Regulations 2008” means the Employment and Support Allowance Regulations (Northern Ireland) 2008(11); and

“ESA Regulations 2016” means the Employment and Support Allowance Regulations (Northern Ireland) 2016(12).

Claimants who have made a claim for employment and support allowance before 3rd April 2017

2.  The first circumstance is where the claimant has made or is treated as having made a claim for an employment and support allowance before 3rd April 2017 and that claim results in an award of employment and support allowance.

Claimants who have been found to have limited capability for work before 3rd April 2017

3.  The second circumstance is where the claimant’s current period of limited capability for work began on or after 3rd April 2017 and is treated as a continuation of an earlier period of limited capability for work which began before 3rd April 2017 by virtue of—

(a) regulation 145 of the ESA Regulations 2008; or

(b) regulation 86 of the ESA Regulations 2016.

Claimants on Incapacity Benefits who have or will become notified persons

4.  The third circumstance is where the claimant is or becomes a notified person within the meaning of regulation 4 of the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010(13) (the notice commencing the conversion phase) and a determination is effective as to whether that person—

(a) has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations 2008;

(b) has or is to be treated as having limited capability for work under Part 5 of the ESA Regulations 2016;

(c) has or is to be treated as having limited capability for work-related activity under Part 6 of the ESA Regulations 2008; or

(d) has or is to be treated as having limited capability for work-related activity under Part 6 of the ESA Regulations 2016.

Claimants where their award becomes payable before 3rd April 2017

5.  The fourth circumstance is where the claimant becomes entitled to an employment and support allowance before 3rd April 2017 by virtue of—

(a) regulation 19(1) and paragraph 16 of Schedule 4 to the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(14); or

(b) regulation 27 of the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016(15).

Claimants where their assessment phase begins before 3rd April 2017

6.  The fifth circumstance is where the first day of the claimant’s assessment phase began before 3rd April 2017 by virtue of—

(a) regulation 5 of the ESA Regulations 2008; or

(b) regulation 6 of the ESA Regulations 2016.

Claimants where they have been entitled to maternity allowance

7.  The sixth circumstance is where—

(a) a claimant was entitled to a maternity allowance under section 35 of the Social Security Contributions and Benefits (Northern Ireland) Act 1992(16) and the end of that award is within 12 weeks beginning with the date that a claim for an employment and support allowance is made; and

(b) immediately prior to their entitlement to a maternity allowance beginning the claimant was previously entitled to an employment and support allowance before 3rd April 2017.

(1)

S.R. 1987 No. 459; relevant amending Regulations are S.R. 1991 No. 204, S.R. 1995 No. 301, S.R. 2008 No. 286, S.R. 2013 No. 67 and S.R. 2016 No. 175

(2)

S.R. 1988 No. 368; relevant amending Regulation is S.R. 2010 No. 344

(3)

S.R. 1996 No. 198; relevant amending Regulations are; S.R. 2008 Nos. 286 and 413, S.R. 2013 No. 67 and S.R. 2016 No. 175

(4)

S.R. 2001 No. 213; regulation 7(2)(j) was added by regulation 2(3)(b) of S.R. 2008 No. 378

(5)

S.R. 2003 No. 28; relevant amending Regulations are S.R. 2008 Nos. 286 and 413, S.R. 2013 No. 67 and S.R. 2016 No. 175

(6)

S.R. 2006 No. 405; relevant amending Regulations are S.R. 2008 Nos.179 and 378 and S.R. 2013 No. 67 and S.R. 2016 No. 326.

(7)

S.R. 2006 No. 406; relevant amending Regulations are S.R. 2008 No. 378, S.R. 2009 No. 92 and S.R. 2016 No. 326.

(8)

2007 c.2

(9)

S.R. 1987 No. 465; relevant amending Rules are S.R. 2006 No. 203 and S.R. 2008 No. 286; regulation 4ZC was inserted by Article 2(3) of S.R. 2006 No. 203; regulations 4F to H were inserted by regulation 13(5) of S.R. 2008 No. 286

(10)

S.R. 2016 No. 220

(11)

S.R. 2008 No. 280; relevant amending Regulation is S.R. 2016 No. 176

(12)

S.R. 2016 No. 219

(13)

S.R. 2010 No. 312

(14)

Regulation 19(1) was substituted by regulation 3(7) of S.R. 1997 No. 156; paragraph 16 of Schedule 4 was added by regulation 13(17) of S.R. 2008 No. 286

(15)

S.R. 2016 No. 220

(16)

1992 (c. 7); section 35 was amended by Article 4(a) of the Still-Birth (Definition) (Northern Ireland) Order 1992 (S.I. 1992/1310 (N.I. 10)), regulation 2(3) of S.R. 1994 No. 176, Article 50(1) and (2) of the Welfare Reform and Pensions (Northern Ireland) Order 1999, paragraph 2 of Schedule 1 to the Social Security Act (Northern Ireland) 2002 (c. 10) and Article 6(1) to (3) of the Work and Families Act (Northern Ireland) 2015 (c. 1)