The Employment and Support Allowance Regulations 2008

PART 11 SUPPLEMENTARY PROVISIONS

CHAPTER 1 Miscellaneous

Waiting days

144.—(1) A claimant is not entitled to an employment and support allowance in respect of 3 days at the beginning of a period of limited capability for work.

(2) Paragraph (1) does not apply where—

(a) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support, state pension credit, a jobseeker’s allowance, a carer’s allowance or statutory sick pay coming to an end;

(b) the claimant is terminally ill and has—

(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 Social Security and Child Support (Decisions and Appeals) Regulations 1999(1) which contains an express statement of being terminally ill; or

(c) the claimant has been discharged from being a member of Her Majesty’s forces and 3 or more days immediately before that discharge were days of sickness absence from duty, which are recorded by the Secretary of State for Defence.

Linking rules

145.—(1) Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.

(2) Where the claimant is a work or training beneficiary in accordance with regulation 148, any period of limited capability for work which is separated from another such period by not more than 104 weeks is to be treated as a continuation of the earlier period.

(3) Where the claimant claims an employment and support allowance after ceasing to be in qualifying remunerative work and—

(a) the period of limited capability for work began on the day immediately after the day on which the claimant so ceased;

(b) the claimant has been entitled to an employment and support allowance within the period of 104 weeks before the beginning of that period of limited capability for work; and

(c) the claimant satisfied the relevant tax credit conditions set out in paragraph (4) on the day before so ceasing,

the claimant is to be treated for the purposes of the claim as having had limited capability for work throughout the period during which those conditions were satisfied.

(4) A claimant satisfies the relevant tax credit conditions on a day if—

(a) the claimant is entitled for the day to the disability element of working tax credit (on a claim made by the claimant or by the claimant jointly with another) or would be so entitled but for the fact that the relevant income (within the meaning of Part 1 of the Tax Credits Act) in the case of the claimant or the claimant and another is such that that person is not so entitled; and

(b) either working tax credit or any element of child tax credit other than the family element is paid in respect of the day on such a claim.

(5) Where a claim for an employment and support allowance is made after the claimant ceases to be engaged in training and—

(a) that claimant was entitled to an employment and support allowance within the period of 8 weeks immediately before becoming so engaged;

(b) that claimant has limited capability for work on the day after ceasing to be so engaged; and

(c) that day falls not later than the end of the period of 104 weeks beginning with the end of the last week for which the claimant was entitled to an employment and support allowance,

the claimant is to be treated, for the purposes of the claim, as having had limited capability for work for the period when so engaged in training.

Advance awards

146.—(1) Where section 5 of the Act (advance award of income-related allowance) applies to a claim and the claimant satisfies the conditions in paragraph (3)—

(a) the claim is to be treated as if made for a period from the relevant day; and

(b) the Secretary of State may award an employment and support allowance from the relevant day.

(2) In this regulation the “relevant day” is the day after the end of a period of 13 weeks beginning on the first day on which the claimant would be entitled to an income-related allowance if the claimant satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act.

(3) The conditions are that—

(a) the Secretary of State is of the opinion that unless there is a change of circumstances the claimant will satisfy the conditions set out in section 1(3)(b) to (f) of, and Part 2 of Schedule 1 to, the Act when an income-related allowance becomes payable under the award; and

(b) the claimant is treated as having limited capability for work under regulation 20, 25, 26, 29 or 33(2) (conditions for treating a person as having limited capability for work) for the period before an income-related allowance becomes payable under the award.

(4) Where an award is made under paragraph (1)—

(a) the award for an employment and support allowance will become payable on the date on which the claimant would have been entitled to a main phase employment and support allowance if the claimant had satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act before the relevant day;

(b) sections 4(4)(a) and 4(5)(a) of the Act do not apply to that award.

Recovery orders

147.—(1) Where an award of income-related allowance has been made to a claimant, the Secretary of State may apply to the court for a recovery order against the claimant’s partner.

(2) On making a recovery order the court may order the partner to pay such amount at such intervals as it considers appropriate, having regard to all the circumstances of the partner and, in particular, the partner’s income.

(3) Except in Scotland, a recovery order is to be treated for all purposes as if it were a maintenance order within the meaning of section 150(1) of the Magistrates Courts Act 1980(2).

(4) Where a recovery order requires the partner to make payments to the Secretary of State, the Secretary of State may, by giving notice in writing to the court which made the order, the liable person and the claimant, transfer to the claimant the right to receive payments under the order and to exercise the relevant rights in relation to the order.

(5) In paragraph 4, “the relevant rights” means, in relation to a recovery order, the right to bring any proceedings, take any steps or do any other thing under or in relation to the order.

CHAPTER 2 Work or training beneficiaries

Work or training beneficiaries

148.—(1) Subject to paragraph (2), a claimant is a “work or training beneficiary” on any day in a linking term where the claimant—

(a) had limited capability for work for more than 13 weeks in the most recent past period of limited capability for work;

(b) ceased to be entitled to an allowance or advantage at the end of that most recent past period of limited capability for work; and

(c) became engaged in work or training within one month of so ceasing to be entitled to that benefit at the end of that most recent past period of limited capability for work.

(2) A claimant is not a work or training beneficiary if—

(a) the most recent past period of limited capability for work was ended by a determination that the claimant did not have limited capability for work; and

(b) that determination was on the basis of a limited capability for work assessment.

(3) For the purposes of this Part—

“allowance or advantage” means any allowance or advantage under the Act or the Contributions and Benefits Act for which entitlement is dependent on limited capability for work;

“linking term” means a period of 104 weeks from the first day immediately following the last day in a period of limited capability for work;

“work” means work, other than work under regulation 45 (exempt work), for which payment is made or which is done in expectation of payment.

Linking rules – limited capability for work

149.—(1) Where the circumstances in paragraph (2) apply, a work or training beneficiary is to be treated as having limited capability for work for a period of 13 weeks beginning on the day within the linking term on which the work or training beneficiary claims an employment and support allowance.

(2) The circumstances are that—

(a) the work or training beneficiary provides evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of the doctor’s statement or other evidence required in each case); and

(b) in the most recent past period of limited capability for work, it had been determined that the work or training beneficiary had limited capability for work—

(i) the claimant having been assessed in accordance with a limited capability for work assessment; or

(ii) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).

Linking rules – limited capability for work-related activity

150.  Where a work or training beneficiary was a member of the support group when the most recent past period of limited capability for work came to an end, that work or training beneficiary is to be treated as having limited capability for work-related activity for a period of 13 weeks beginning on the day within the linking term on which a claim for an employment and support allowance is made.

CHAPTER 3 Temporary absence from Great Britain

Absence from Great Britain

151.—(1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary absence from Great Britain only in accordance with this Chapter.

(2) A claimant who continues to be entitled to a contributory allowance during a period of temporary absence will not be disqualified for receiving that allowance during that period under section 18(4) of the Act.

Short absence

152.  A claimant is to continue to be entitled to an employment and support allowance during the first 4 weeks of a temporary absence from Great Britain if—

(a) the period of absence is unlikely to exceed 52 weeks; and

(b) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance.

Absence to receive medical treatment

153.—(1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence from Great Britain if—

(a) the period of absence is unlikely to exceed 52 weeks;

(b) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(c) the claimant is absent from Great Britain solely—

(i) in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant’s limited capability for work which commenced before leaving Great Britain; or

(ii) because the claimant is accompanying a dependent child in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement;

(d) those arrangements relate to treatment—

(i) outside Great Britain;

(ii) during the period whilst the claimant is temporarily absent from Great Britain; and

(iii) by, or under the supervision of, a person appropriately qualified to carry out that treatment; and

(e) before leaving Great Britain the claimant sought and received the permission of the Secretary of State to do so.

(2) In paragraph (1)(d)(iii), “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.

Absence in order to receive NHS treatment

154.  A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Great Britain if—

(a) while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(b) that period of temporary absence is for the purpose of the claimant receiving treatment at a hospital or other institution outside Great Britain where the treatment is being provided—

(i) under section 6(2) of the Health Service Act (Performance of functions outside England) or section 6(2) of the Health Service (Wales) Act (Performance of functions outside Wales);

(ii) pursuant to arrangements made under section 12(1) of the Health Service Act (Secretary of State’s arrangements with other bodies), section 10(1) of the Health Service (Wales) Act (Welsh Ministers’ arrangements with other bodies), paragraph 18 of Schedule 4 to the Health Service Act (Joint exercise of functions) or paragraph 18 of Schedule 3 to the Health Service (Wales) Act (Joint exercise of functions); or

(iii) under any equivalent provision in Scotland or pursuant to arrangements made under such provision; and

(c) before leaving Great Britain the claimant sought and received the permission of the Secretary of State to do so.

Absence of member of family of member of Her Majesty’s forces

155.—(1) A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Great Britain if—

(a) the claimant is a member of the family of a member of Her Majesty’s forces and temporarily absent from Great Britain by reason only of the fact that the claimant is living with that member; and

(b) before leaving Great Britain the claimant sought and received the permission of the Secretary of State to do so.

(2) In this regulation “member of the family of a member of Her Majesty’s forces” means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of such a member.

CHAPTER 4 Membership of household

Circumstances in which a person is to be treated as being or not being a member of the household

156.—(1) Subject to the following provisions of this regulation—

(a) the claimant and the claimant’s partner; and

(b) where the claimant or the claimant’s partner is responsible for a child or young person, that child or young person and any child of that child or young person,

are to be treated as being members of the same household.

(2) Paragraph (1) applies even where any of them is temporarily living away from the other members of the family.

(3) Paragraph (1) does not apply to a person who is living away from the other members of the family where—

(a) that person does not intend to resume living with the other members of the family; or

(b) that person’s absence from the other members of the family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of absence), and the absence is unlikely to be substantially more than 52 weeks.

(4) Paragraph (1) does not apply in respect of any member of a couple or of a polygamous marriage where—

(a) one, both or all of them are patients detained in a hospital provided under section 4 of the Health Service Act (high security psychiatric services), section 4 of the Health Service (Wales) Act (high security psychiatric services) or section 102 of the National Health Service (Scotland) Act 1978(3) (state hospitals);

(b) one, both or all of them are—

(i) detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(ii) on temporary release in accordance with the provisions of the Prison Act 1952(4) or the Prisons (Scotland) Act 1989(5);

(c) the claimant is abroad and does not satisfy the conditions of Chapter 4 of this Part (temporary absence from Great Britain); or

(d) any one of them is permanently residing in a care home, an Abbeyfield Home or an independent hospital.

(5) A child or young person is not to be treated as a member of the claimant’s household where that child or young person is—

(a) placed with the claimant or the claimant’s partner by a local authority under section 23(2)(a) of the Children Act 1989(6) or by a voluntary organisation under section 59(1)(a) of that Act(7);

(b) placed with the claimant or the claimant’s partner prior to adoption;

(c) in accordance with a relevant enactment, boarded out with the claimant or the claimant’s partner, whether or not with a view to adoption; or

(d) placed for adoption with the claimant or the claimant’s partner pursuant to a decision under the Adoption Agencies Regulations 1983(8) or the Adoption Agencies (Scotland) Regulations 1996(9).

(6) Subject to paragraphs (7) and (8), paragraph (1) does not apply to a child or young person who is not living with the claimant and who—

(a) in a case which does not fall within sub-paragraph (b), has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i) where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim;

(ii) in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(b) where regulation 153 (absence to receive medical treatment) applies, has been continuously absent from Great Britain for a period of more than 26 weeks, that period commencing––

(i) where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim;

(ii) in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(c) has been an in-patient or in accommodation for a continuous period of more than 12 weeks commencing—

(i) where that child or young person became an in-patient or, as the case may be, entered that accommodation, before the date of the claim for an employment and support allowance, with that date; or

(ii) in any other case, with the date on which that child or young person became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant’s household;

(d) is being looked after by, or in the care of, a local authority under a relevant enactment;

(e) has been placed with a person other than the claimant prior to adoption;

(f) has been boarded out under a relevant enactment with a person other than the claimant prior to adoption;

(g) has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1996; or

(h) is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

(7) Sub-paragraphs (a)(i), (b)(i) and (c)(i) of paragraph (6) do not apply in a case where immediately before the date of claim for an employment and support allowance the claimant was entitled to an income-based jobseeker’s allowance or income support.

(8) A child or young person to whom any of the circumstances mentioned in sub-paragraphs (d) or (h) of paragraph (6) applies is to be treated as being a member of the claimant’s household only for that part of any benefit week where that child or young person lives with the claimant.

(9) In this regulation—

“accommodation” means accommodation provided by a local authority in a home owned or managed by that local authority—

(a)

under sections 21 to 24 of the National Assistance Act 1948(10) (provision of accommodation);

(b)

in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968(11) (provision of residential or other establishment); or

(c)

under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003(12) (care and support services etc.),

where the accommodation is provided for a person whose stay in that accommodation has become other than temporary; and

“voluntary organisation” has the meaning assigned to it in the Children Act 1989, or in Scotland, by section 94 of the Social Work (Scotland) Act 1968.

(10) For the purposes of these Regulations a person is responsible for a child or young person if that child or young person usually lives with that person.

(1)

S.I. 1999/991.

(2)

1980 c. 43. The definition in section 150(1) was inserted by the Family Law Reform Act 1987 (c. 42), section 33(1) and Schedule 2, paragraph 88.

(3)

1978 c. 29.

(4)

1952 c. 52.

(5)

1989 c. 45.

(6)

1989 c. 41. Section 23(2)(a) was amended by section 49(3) of the Children Act 2004 (c. 31).

(7)

Section 59(1)(a) was amended by section 49(4) of the Children Act 2004 (c. 31).

(8)

S.I. 1983/1964.

(9)

S.I. 1996/3266.

(10)

1948 c. 29.

(11)

1968 c. 49.

(12)

2003 asp 13.