C1C8C6C7C9C10Part 1Employment and support allowance

Annotations:
Modifications etc. (not altering text)
C1

Pt. 1 modified by 1995 c. 18, Sch. 1 para. 2(2) (as inserted (27.10.2008) by Welfare Reform Act 2007 (c. 5), s. 70(2), Sch. 3 para. 12(6); S.I. 2008/787, art. 2(4)(f))

C6

Pt. 1 applied (with modifications) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) Regulations 2010 (S.I. 2010/875), regs. 1(2), 6, Sch. 1 (which amending S.I. was revoked (27.8.2010) by SI 2010/1906, reg. 2)

C7

Pt. 1 applied (with modifications) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) Regulations 2010 (S.I. 2010/875), regs. 1(2), 16, Sch. 2 (which amending S.I. was revoked (27.8.2010) by SI 2010/1906, reg. 2)

Entitlement

I6C11C1Employment and support allowance

1

An allowance, to be known as an employment and support allowance, shall be payable in accordance with the provisions of this Part.

2

Subject to the provisions of this Part, a claimant is entitled to an employment and support allowance if he satisfies the basic conditions and F14either—

a

the first and the second conditions set out in F15Part 1 of Schedule 1 (conditions relating to national insurance) or the third condition set out in F15that Part of that Schedule (condition relating to youth), F16or

b

the conditions set out in Part 2 of that Schedule (conditions relating to financial position).

3

The basic conditions are that the claimant—

a

has limited capability for work,

F6aa

has accepted a claimant commitment,

b

is at least 16 years old,

c

has not reached pensionable age,

d

is in Great Britain, F8and

e

is not entitled to income support, and

f

is not entitled to a jobseeker's allowance F17(and is not a member of a couple who are entitled to a joint-claim jobseeker's allowance).

F33A

After the coming into force of this subsection no claim may be made for an employment and support allowance by virtue of the third condition set out in F18Part 1 of Schedule 1 (youth).

4

For the purposes of this Part, a person has limited capability for work if—

a

his capability for work is limited by his physical or mental condition, and

b

the limitation is such that it is not reasonable to require him to work.

5

An employment and support allowance is payable in respect of a week.

6

In subsection (3)—

  • F19“joint-claim jobseeker's allowance” means a jobseeker's allowance entitlement to which arises by virtue of section 1(2B) of the Jobseekers Act 1995 (c. 18);

  • “pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995 (c. 26).

F5F206A

In subsection (3)(f), in relation to a contributory allowance, the reference to a couple entitled to a joint-claim jobseeker's allowance does not include a couple so entitled by virtue of regulations under paragraph 8A of Schedule 1 to the Jobseekers Act 1995.

F207

In this Part—

  • “contributory allowance” means an employment and support allowance entitlement to which is based on subsection (2)(a) F4(and see section 1B(2));

  • “income-related allowance” means an employment and support allowance entitlement to which is based on subsection (2)(b).

1AF1Duration of F21contributory allowance

1

The period for which a person is entitled to F10a contributory allowanceF10an employment and support allowance by virtue of the first and second conditions set out in F22Part 1 of Schedule 1 shall not exceed, in the aggregate, the relevant maximum number of days in any period for which his entitlement is established by reference (under the second condition set out in F22Part 1 of Schedule 1) to the same two tax years.

2

In subsection (1) the “relevant maximum number of days” is—

a

365 days, or

b

if the Secretary of State by order specifies a greater number of days, that number of days.

3

The fact that a person's entitlement to F11a contributory allowanceF11an employment and support allowance has ceased as a result of subsection (1) does not prevent his being entitled to a further such allowance if—

a

he satisfies the first and second conditions set out in F23Part 1 of Schedule 1, and

b

the two tax years by reference to which he satisfies the second condition include at least one year which is later than the second of the two years by reference to which (under the second condition) his previous entitlement was established.

4

The period for which a person is entitled to F11a contributory allowanceF11an employment and support allowance by virtue of the third condition set out in F23Part 1 of Schedule 1 (youth) shall not exceed—

a

365 days, or

b

if the Secretary of State by order specifies a greater number of days, that number of days.

5

In calculating for the purposes of subsection (1) or (4) the length of the period for which a person is entitled to F11a contributory allowanceF11an employment and support allowance, the following are not to be counted—

a

days in which the person is a member of the support group,

b

days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b), and

c

days in the assessment phase, where the days immediately following that phase fall within paragraph (a) or (b).

6

In calculating for the purposes of subsection (1) or (4) the length of the period for which a person is entitled to F11a contributory allowanceF11an employment and support allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).

1BF2Further entitlement after time-limiting

1

Where a person's entitlement to F12a contributory allowanceF12an employment and support allowance has ceased as a result of section 1A (1) or (4) but—

a

the person has not at any subsequent time ceased to have (or to be treated as having) limited capability for work,

b

the person satisfies the basic conditions, and

c

the person has (or is treated as having) limited capability for work-related activity,

the claimant is entitled to an employment and support allowance by virtue of this section.

F242

An employment and support allowance entitlement to which is based on this section is to be regarded as a contributory allowance for the purposes of this Part.

2C1Amount of F25contributory allowance

1

F9In the case of a contributory allowance, the amount payableF9The amount payable by way of an employment and support allowance in respect of a claimant shall be calculated by—

I1I7a

taking such amount as may be prescribed,

I8b

if in his case the conditions of entitlement to the support component or the work-related activity component are satisfied, adding the amount of that component, and

I1I7c

making prescribed deductions in respect of any payments to which section 3 applies.

I82

The conditions of entitlement to the support component are—

C2C11a

that the assessment phase has ended,

b

that the claimant has limited capability for work-related activity, and

c

that such other conditions as may be prescribed are satisfied.

I83

The conditions of entitlement to the work-related activity component are—

C3C12a

that the assessment phase has ended,

b

that the claimant does not have limited capability for work-related activity, and

c

that such other conditions as may be prescribed are satisfied.

4

Regulations may—

I1I7a

prescribe circumstances in which paragraph (a) of subsection (2) or (3) is not to apply;

I8b

prescribe circumstances in which entitlement under subsection (2) or (3) is to be backdated;

I1I7c

make provision about the amount of the component under subsection (2) or (3).

5

For the purposes of this Part, a person has limited capability for work-related activity if—

a

his capability for work-related activity is limited by his physical or mental condition, and

b

the limitation is such that it is not reasonable to require him to undertake such activity.

3C1Deductions from F26contributory allowance: supplementary

1

This section applies to payments of the following kinds which are payable to the claimant—

I9a

pension payments,

I9b

PPF periodic payments, and

I2I10c

payments of a prescribed description made to a person who is a member of, or has been appointed to, a prescribed body carrying out public or local functions.

2

Regulations may—

I9a

disapply section 2(1)(c), so far as relating to pension payments or PPF periodic payments, in relation to persons of a prescribed description;

I2I10b

provide for pension payments or PPF periodic payments of a prescribed description to be treated for the purposes of that provision as not being payments to which this section applies;

I9c

provide for sums of a prescribed description to be treated for the purposes of this section as payable to persons as pension payments or PPF periodic payments (including, in particular, sums in relation to which there is a deferred right of receipt);

I2I10d

make provision for the method of determining how payments to which this section applies are, for the purposes of section 2, to be related to periods for which a person is entitled to F13a contributory allowanceF13an employment and support allowance.

I3I103

In this section—

  • “pension payment” means—

    1. a

      a periodical payment made in relation to a person under a personal pension scheme or, in connection with the coming to an end of an employment of his, under an occupational pension scheme or a public service pension scheme,

    2. b

      a payment of a prescribed description made under an insurance policy providing benefits in connection with physical or mental illness or disability, and

    3. c

      such other payments as may be prescribed;

  • “PPF periodic payment” means—

    1. a

      any periodic compensation payment made in relation to a person, payable under the pension compensation provisions as specified in section 162(2) of the Pensions Act 2004 (c. 35) or Article 146(2) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1)) (the pension compensation provisions), and

    2. b

      any periodic payment made in relation to a person, payable under section 166 of the Pensions Act 2004 or Article 150 of the Pensions (Northern Ireland) Order 2005 (duty to pay scheme benefits unpaid at assessment date etc.).

4

For the purposes of subsection (3), “occupational pension scheme”, “personal pension scheme” and “public service pension scheme” each have the meaning given by section 1 of the Pension Schemes Act 1993 (c. 48), except that “personal pension scheme” includes—

a

an annuity contract or trust scheme approved under section 620 or 621 of the Income and Corporation Taxes Act 1988 (c. 1), and

b

a substituted contract within the meaning of section 622(3) of that Act,

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 (c. 12).

F74C1Amount of income-related allowance

I111

In the case of an income-related allowance, the amount payable in respect of a claimant shall be—

a

if he has no income, the applicable amount;

b

if he has an income, the amount by which the applicable amount exceeds his income.

2

Subject to subsection (3), the applicable amount for the purposes of subsection (1) shall be calculated by—

I4I12a

taking such amount, or the aggregate of such amounts, as may be prescribed, and

I11b

if in the claimant's case the conditions of entitlement to the support component or the work-related activity component are satisfied, adding the amount of that component.

I4I123

Regulations may provide that, in prescribed cases, the applicable amount for the purposes of subsection (1) shall be nil.

I114

The conditions of entitlement to the support component are—

C4a

that the assessment phase has ended,

b

that the claimant has limited capability for work-related activity, and

c

that such other conditions as may be prescribed are satisfied.

I115

The conditions of entitlement to the work-related activity component are—

C5a

that the assessment phase has ended,

b

that the claimant does not have limited capability for work-related activity, and

c

that such other conditions as may be prescribed are satisfied.

6

Regulations may—

I4I12a

prescribe circumstances in which paragraph (a) of subsection (4) or (5) is not to apply;

I11b

prescribe circumstances in which entitlement under subsection (4) or (5) is to be backdated;

I4I12c

make provision about the amount of the component under subsection (4) or (5).

F75C1Advance award of income-related allowance

I131

This section applies to claims for an employment and support allowance by a person who—

a

would be entitled to an income-related allowance, but for the fact that he does not satisfy the condition in paragraph 6(1)(a) of Schedule 1,

b

would satisfy that condition if he were entitled to the component mentioned in section 4(4) or (5), and

c

is not entitled to a contributory allowance.

I5I142

In relation to claims to which this section applies, section 5(1) of the Administration Act (regulations about claims for benefit) shall have effect as if—

a

in paragraph (d) (power to permit an award on a claim for benefit for a future period to be made subject to the condition that the claimant satisfies the requirements for entitlement when the benefit becomes payable under the award), there were inserted at the end “ and to such other conditions as may be prescribed ”, and

b

in paragraph (e) (power to provide for such an award to be revised or superseded under the Social Security Act 1998 (c. 14) if any of those requirements are found not to have been satisfied), for “any of those requirements” there were substituted “ any of the conditions to which the award is made subject ”.

I5I143

Regulations may, in relation to claims to which this section applies, make provision enabling an award to be made on terms such that the time at which benefit becomes payable under the award is later than the start of the period for which the award is made.

I15C1F76C1Amount payable where claimant entitled to both forms of allowance

1

This section applies where a claimant is entitled to both a contributory allowance and an income-related allowance.

2

If the claimant has no income, the amount payable by way of an employment and support allowance shall be the greater of—

a

his personal rate, and

b

the applicable amount.

3

If the claimant has an income, the amount payable by way of an employment and support allowance shall be the greater of—

a

his personal rate, and

b

the amount by which the applicable amount exceeds his income.

4

Where the amount payable to the claimant by way of an employment and support allowance does not exceed his personal rate, the allowance shall be treated as attributable to the claimant's entitlement to a contributory allowance.

5

Where the amount payable to the claimant by way of an employment and support allowance exceeds his personal rate, the allowance shall be taken to consist of two elements, namely—

a

an amount equal to his personal rate, and

b

an amount equal to the excess.

6

The element mentioned in subsection (5)(a) shall be treated as attributable to the claimant's entitlement to a contributory allowance.

7

The element mentioned in subsection (5)(b) shall be treated as attributable to the claimant's entitlement to an income-related allowance.

8

In this section—

  • “applicable amount” means the amount which, in the claimant's case, is the applicable amount for the purposes of section 4(1);

  • “personal rate” means the amount calculated in accordance with section 2(1).

I16C17C1Exclusion of payments below prescribed minimum

Except in such circumstances as regulations may provide, an employment and support allowance shall not be payable where the amount otherwise payable would be less than a prescribed minimum.