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The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010

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PART 2CONVERSION DECISIONS

The notice commencing the conversion phase

4.—(1) Subject to paragraph (5), the Secretary of State may at any time issue a notice to any person who is entitled to an existing award.

(2) Any person to whom such a notice is issued is referred to in these Regulations as a notified person.

(3) The notice must inform the notified person—

(a)that an existing award is to be converted into an award of an employment and support allowance if certain conditions are satisfied;

(b)that, if those conditions are not satisfied, the existing award will not be converted and will terminate by virtue of these Regulations;

(c)of the requirements that must be met in order to satisfy those conditions; and

(d)of such other matters as the Secretary of State considers appropriate.

(4) The issue of the notice to a notified person begins the conversion phase in relation to that person, with effect from the date of issue.

(5) No notice may be issued to any person—

(a)who reaches pensionable age at any time before 6th April 2014; or

(b)at any time when payment of the existing award to the person is subject to adjustment under regulation 4 of the Social Security (Transitional Payments) Regulations 2009 M1 (adjustment of subsequent payments following an adjusting payment of benefit).

(6) Where a person is entitled to—

(a)an existing award of incapacity benefit or severe disablement allowance; and

(b)an existing award of income support,

the notice issued to the person under this regulation shall have effect in relation to both such awards.

Marginal Citations

Deciding whether an existing award qualifies for conversion

5.—(1) In relation to the existing award or awards to which a notified person (“P”) is entitled, the Secretary of State must, except where paragraph (8)(a) applies, make a conversion decision in accordance with these Regulations.

(2) A conversion decision is—

(a)a decision that P's existing award or awards qualify for conversion into an award of an employment and support allowance in accordance with regulation 7 (qualifying for conversion); or

(b)a decision that P's existing award or awards do not qualify for conversion into an award of an employment and support allowance.

(3) A notice of a conversion decision under paragraph (2)(a) must specify the amount of an employment and support allowance to which P is entitled on the effective date (subject to any relevant deductions).

(4) The amount referred to in paragraph (3) is to be determined in accordance with regulation 8 (amount of an employment and support allowance on conversion).

(5) The Secretary of State must notify P of the Secretary of State's conversion decision.

(6) The conversion phase ends in relation to P—

(a)immediately before the effective date of the conversion decision notified to P; or

(b)if earlier, when P's entitlement to the award or awards to which the notice under regulation 4 (notice commencing the conversion phase) relates otherwise ceases to be subject to conversion (because entitlement to the award has terminated or for some other reason).

(7) The effective date of any conversion decision is to be determined in accordance with regulation 13 (effective date of a conversion decision).

(8) In the event that P's entitlement to an existing award ceases to be subject to conversion (for example, because P's entitlement to an award of income support has ceased to fall within paragraph (c) of the definition of “existing award” in paragraph 11 of Schedule 4 to the 2007 Act)—

(a)before a conversion decision is made, the Secretary of State must notify P that the conversion phase has ended without a conversion decision being made; or

(b)after the making of a conversion decision but before its effective date, the Secretary of State must notify P that the conversion decision shall not come into effect.

(9) On the giving of a notice under paragraph (8)(b), the conversion decision to which it relates shall lapse with immediate effect.

Application of certain enactments for purpose of making conversion decisions

6.—(1) The enactments listed in paragraph (2) apply, subject to the modifications specified in Schedule 1, for the purposes of—

(a)enabling the Secretary of State to make in relation to any person a conversion decision under this Part; and

(b)providing for the revision [F1or supersession] of such decisions at any time before the effective date.

(2) The listed enactments are—

(a)Part 1 of the 2007 Act;

(b)the 2008 Regulations;

(c)regulation 32(1) and (1A) of the Social Security (Claims and Payments) Regulations 1987 M2 (information to be given);

(d)Chapter 2 of Part 1 of the Social Security Act 1998 M3 (social security decisions and appeals); and

(e)the Social Security and Child Support (Decisions and Appeals) Regulations 1999 M4.

(3) In the application of the enactments listed in paragraph (2)(d) and (e), the conversion decision is to be treated as if it were a decision as to a person's entitlement to an employment and support allowance which had been made on a claim.

Textual Amendments

Marginal Citations

M2S.I. 1987/1968. Regulation 32(1) and (1A) were substituted by S.I. 2003/1050.

Qualifying for conversion

7.—[F2(1)] [F3Subject to [F4paragraphs (2) and (3)], for the purposes of regulation 5(2)(a)] (deciding whether an existing award qualifies for conversion), an existing award or awards to which a notified person [F5(“P”)] is entitled qualify for conversion into an award of an employment and support allowance [F6under these Regulations] only if [F7“P”] satisfies the basic conditions set out in section 1(3)(a) to (d) and (f) of the 2007 Act.

[F8(2) Where P is entitled to an award of an employment and support allowance under the 2007 Act and it has been determined in respect of that entitlement that P—

(a)has limited capability for work, or

(b) is to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations ,

in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).]

[F9(3) Where P would be entitled to an award of an employment and support allowance under the 2007 Act but for the application of section 1A of that Act (duration of contributory allowance) and it had been determined in respect of the entitlement that had ceased that P—

(a)had limited capability for work; or

(b)was to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations,

in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).]

Textual Amendments

Amount of an employment and support allowance on conversion

8.—[F10(1)] For the purposes of regulation 5(3), the amount of an employment and support allowance to which a notified person is entitled shall be determined as follows.

Step 1

Determine in accordance with Part 1 of the 2007 Act and the 2008 Regulations the amount (if any) of an employment and support allowance to which the notified person would be entitled if, on a claim made by that person—

(a)

it had been determined that the person was entitled to an award of an employment and support allowance; and

(b)

the assessment phase had ended.

Step 2F11

Determine in accordance with regulations 9 to 12—

(a)

whether the notified person is entitled to a transitional addition; and

(b)

if so, the amount of the transitional addition.

Step 3

Aggregate the amounts (if any) which result from Steps 1 and 2.

[F12(2) In a case to which regulation 7(2) applies (cases where a person is already entitled to an award of an employment and support allowance), a determination that the person has, or does not have, limited capability for work-related activity made in respect of the person’s current entitlement to an award of an employment and support allowance is to be treated as having been made for the purposes of Step 1.]

Textual Amendments

Determining entitlement to a transitional addition

9.—(1) In relation to any notified person whose existing award or awards qualify for conversion into an employment and support allowance—

(a)the person's entitlement (if any) to a transitional addition; and

(b)the amount of any such transitional addition,

are to be determined in accordance with regulation 10(2) (transitional addition: incapacity benefit or severe disablement allowance) or 11(2) (transitional addition: income support).

(2) The amount of transitional addition to which a notified person is entitled is subject to reduction in accordance with regulations 18 to 20.

(3) The entitlement of a notified person to any transitional addition terminates in accordance with regulation 21 (termination of transitional addition).

Transitional addition: incapacity benefit or severe disablement allowance

10.—(1) This regulation applies to any notified person who is entitled to an existing award of incapacity benefit or severe disablement allowance (and for these purposes it is irrelevant whether the person is also entitled to any existing award of income support).

(2) In any case falling within paragraph (1)—

(a)the notified person shall be entitled to a transitional addition if Amount A exceeds Amount B; and

(b)the amount of transitional addition to which the notified person is entitled under this paragraph shall be equal to the amount of any such excess.

(3) Amount A is the amount of the weekly rate of the existing award applicable to the notified person.

(4) To calculate Amount B—

(a)take the amount prescribed under paragraph (2) of regulation 67 of the 2008 Regulations (prescribed amounts for purpose of calculating a contributory allowance) which is applicable to the notified person; and

(b)add the amount of the applicable component determined in accordance with regulation 12(5).

(5) In paragraph (3), the reference to the weekly rate of an existing award applicable to the notified person is to—

[F13(a)in the case of incapacity benefit, the weekly rate payable—

(i)under section 30B(2), (6) or (7) (subject to any deduction made in accordance with section 46(3) of the Pension Schemes Act 1993) of the Contributions and Benefits Act M5(incapacity benefit: rate),

(ii)under section 40(5) or 41(4) of that Act M6(long-term incapacity benefit for widows and for widowers),

(iii)under section 80, 81 or 86A of that Act (incapacity benefit: beneficiary’s dependent children; restrictions on increase – child not living with beneficiary etc; and increases for adult dependants),

(iv)by virtue of regulation 11(4) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 M7(former sickness benefit), or

(v)by virtue of regulations 17(1) (transitional awards of long-term incapacity benefit) or 17A (awards of incapacity benefit in cases where periods of interruption of employment and periods of incapacity for work link) of those Regulations; or]

(b)in the case of severe disablement allowance, the weekly rate payable under [F14sections 68(7), 69(1) and 90] of the Contributions and Benefits Act (as they have effect by virtue of article 4 of the Welfare Reform and Pensions Act 1999 (Commencement No.9 and Transitional and Savings Provisions) Order 2000 M8).

[F15(6) Subject to paragraph (7), in determining the weekly rate of incapacity benefit or severe disablement allowance for the purposes of paragraph (5) the following amounts shall be disregarded–

(a)any relevant deduction within the meaning of regulation 2(1) (interpretation); and

(b)any other deduction relating to the existing award which is made by virtue of the Contributions and Benefits Act, the Administration Act or any other Act which is amended by Schedule 3 to the 2007 Act, the Social Security (Incapacity for Work) Act 1994 or by virtue of regulations made under those Acts.

(7) Where any of the enactments referred to in paragraph (6)(b) provide for an additional amount of incapacity benefit or severe disablement allowance to be payable in prescribed circumstances (such as an increase for an adult dependant) but that additional amount is reduced or not payable in relation to P (such as where the dependant has earnings in excess of the standard amount of an increase), in determining the weekly rate of incapacity benefit or severe disablement allowance, only the reduced additional amount (if any) is to be taken into account.]

Textual Amendments

Marginal Citations

M51992 c. 4. “Contributions and Benefits Act” is defined in section 65 of the Welfare Reform Act 2007. Section 30B was inserted by section 2(1) of the Social Security (Incapacity for Work) Act 1994 (c. 18) and is to be repealed by paragraph 9(5) of Schedule 3 to the Welfare Reform Act 2007.

M6Sections 40 and 41 were substituted by paragraphs 8 and 9 of Schedule 1 to the Social Security (Incapacity for Work) Act 1994. They are to be repealed by Schedule 8 to the Welfare Reform Act 2007.

Transitional addition: income support

11.—(1) This regulation applies to any notified person who is entitled to an existing award of income support (and for these purposes it is irrelevant whether the person is also entitled to any existing award of incapacity benefit or severe disablement allowance).

(2) In any case falling within paragraph (1)—

(a)the notified person shall be entitled to a transitional addition if Amount C exceeds Amount D; and

(b)the amount of transitional addition to which the notified person is entitled under this paragraph shall be equal to the amount of any such excess.

(3) To calculate Amount C—

(a)take the notified person's weekly applicable amount under regulation 17 or 18 of, and Schedule 2 to, the Income Support (General) Regulations 1987 M9 (applicable amounts);

(b)disregard any amount determined in accordance with (as the case may be) regulation 17(1)(e) or 18(1)(f) of, and Schedule 3 to, those Regulations (housing costs); and

(c)disregard any amount included in the person's applicable amount—

(i)under regulation 17(1)(b), (c) or (d) of those Regulations M10 in respect of a child or young person who is a member of the notified person's family, or

(ii)under regulation 18(1)(b), (c), (d) or (e) of those Regulations in respect of a child or young person who is a member of the same household as the notified person,

as those provisions have effect by virtue of regulations 1 and 7 of the Social Security (Working Tax Credit and Child Tax Credit) (Consequential Amendment) Regulations 2003 M11.

(4) To calculate Amount D—

(a)take the amount prescribed under regulation 67(1) or 68(1) of the 2008 Regulations (prescribed amounts for purpose of calculating an income-related allowance) which is applicable to the notified person;

(b)disregard any amount determined in accordance with (as the case may be) regulation 67(1)(c) or 68(1)(d) (housing costs) of the 2008 Regulations; and

(c)add the amount of the applicable component determined in accordance with regulation 12(5) of these Regulations.

Marginal Citations

M9S.I. 1987/1967. Regulation 17 was amended by S.I. 1988/910 and 1445, 1989/1678, 1991/387, 1992/3147, 1996/206, 2003/455 and 1121, 2005/2687 and 2006/588. Regulation 18 was amended by S.I. 1988/1228 and 1445, 1989/1034, 1992/3147, 1996/206, 2001/3767, 2003/455 and 1121 and 2006/588.

M10Regulations 17(1)(b) and (c) and 18(1)(c) and (d) of, and paragraphs 2, 3 and 6(1)(c) of Schedule 2 to, the Income Support (General) Regulations 1987 (“the 1987 Regulations”) (amounts for child or young person, family premium and disabled child premium) were revoked by S.I. 2003/455. Paragraph 13A(b) and (2)(a) of the 1987 Regulations (which provide for enhanced disability premium) were also amended by S.I. 2003/455 so as to exclude children or young persons from the list of persons to whom such premiums may relate. The revocations and amendments are subject to savings in accordance with regulations 1 and 7 of S.I. 2003/455, as amended by regulation 2(2) of S.I. 2005/2294.

Regulations 10 and 11: supplementary

12.—(1) This regulation has effect for the purposes of applying regulations 10 and 11 in relation to any notified person.

(2) Subject to paragraphs (3) and (4)—

(a)Amounts A and C are to be calculated in respect of the benefit week which ends immediately before the effective date of the notified person's conversion decision; and

(b)Amounts B and D are to be calculated in respect of the benefit week the first day of which is the effective date of the notified person's conversion decision.

(3) Where—

(a)by virtue of an order made under section 150 of the Administration Act (annual up-rating of benefits), there is an increase in—

(i)the weekly rate which, in accordance with regulation 10(3) (transitional addition: incapacity benefit or severe disablement allowance), is to be used to calculate Amount A, or

(ii)the applicable amount which, in accordance with regulation 11(3) (transitional addition: income support), is to be used to calculate Amount C; and

(b)that increase takes effect from any day in the benefit week referred to in paragraph (2)(b),

the calculation of Amount A or C is to be made using the increased weekly rate or applicable amount (as the case may be).

(4) Where—

(a)there is a change of circumstances in relation to a notified person which, but for sub-paragraph (b), would have resulted in an increase or decrease of the weekly rate or applicable amount referred to in paragraph (3)(a)(i) or (ii); and

(b)that increase or decrease would have taken effect from any day in the benefit week referred to in paragraph (2)(b),

the calculation of Amount A or C is to be made using the weekly rate or applicable amount (as the case may be) which would have been payable in respect of the existing award if it had not been subject to conversion under these Regulations.

(5) The “applicable component”, in relation to the notified person, means—

(a)the work-related activity component, if it has been determined in accordance with the enactments applied by regulation 6 (application of certain enactments for purpose of making conversion decisions) that the notified person does not have and is not to be treated as having limited capability for work-related activity; or

(b)the support component, if it has been determined in accordance with those enactments that the notified person has or is to be treated as having limited capability for work-related activity.

The effective date of a conversion decision

13.—(1) For the purposes of determining the date on which a conversion decision takes effect in relation to any notified person—

(a)take the date on which the person is notified of the conversion decision; and

(b)unless paragraph (2) applies, determine the first complete fortnightly period in respect of which the person's existing benefit is payable after that date,

and the effective date of the person's conversion decision is the first day of the benefit week immediately following the end of the fortnightly period referred to in sub-paragraph (b).

(2) Where existing benefit is payable to the notified person in respect of a period other than a fortnight—

(a)determine the second complete benefit week in respect of which the person's existing benefit is payable after the date on which the person is notified of the conversion decision; and

(b)the effective date of the person's conversion decision is the first day of the benefit week immediately following the end of that second complete benefit week.

(3) “Existing benefit”, in relation to a notified person, means the benefit in respect of the person's existing award or awards.

Conversion decision that existing award qualifies for conversion

14.—(1) [F16Subject to paragraph (2A), paragraphs (2) to (6)] apply in any case where the conversion decision is a decision that a notified person's (“P”) existing award or awards qualify for conversion into an employment and support allowance.

(2) On the effective date of the conversion decision—

(a)P's existing award; or

(b)both of P's existing awards (as the case may be),

are by virtue of this paragraph converted into, and shall have effect on and after that date as, a single award of an employment and support allowance of such amount as is specified in the conversion decision.

[F17(2A) Where P—

(a)has an existing award of income support;

(b)would, on the effective date of P’s conversion decision, remain entitled to income support (by virtue of another provision of the Income Support (General) Regulations 1987) were P not a person to whom regulation 6(4)(a) or 13(2)(b) or (bb) of, or paragraph 7(a) or (b), 10, 12 or 13 of Schedule 1B to, those Regulations (persons incapable of work or disabled) applied; and

(c)notifies the Secretary of State before the effective date of P’s conversion decision that P wishes to remain entitled to income support on that date,

paragraph (2B) applies instead of paragraphs (2) and (4).

(2B) Where paragraph (2A) applies, any entitlement of P to one or both of—

(a)an existing award of incapacity benefit or severe disablement allowance; or

(b)a disability premium by virtue of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987 (additional condition for the higher pensioner and disability premiums),

shall terminate immediately before the effective date of P’s conversion decision.]

[F18(3) In a case to which regulation 7(2) applies (cases where a person is already entitled to an award of an employment and support allowance), any entitlement of P to an award of an employment and support allowance by virtue of the 2007 Act shall terminate immediately before the effective date of P’s conversion decision.

(4) Where, immediately before the effective date of the conversion decision, any relevant deduction was made from the existing award or awards, or from an award of an employment and support allowance which terminates in accordance with paragraph (3), an equivalent deduction shall be made from the award of an employment and support allowance to which P is entitled by virtue of these Regulations.

(5) Where, immediately before the effective date of the conversion decision, P is entitled to be credited with any earnings under regulation 8B(2)(a) of the Social Security (Credits) Regulations 1975 (credits for incapacity for work), P shall not be entitled to be so credited under that regulation on or after that date.

(6) Where—

(a)paragraph (2) applies,

(b)P is a member of a joint-claim couple, and

(c)immediately before the effective date of that conversion decision that couple was entitled to a disability premium by virtue of paragraph 20H(1)(b) or (d) of Schedule 1 to the Jobseeker’s Allowance Regulations 1996 (additional conditions for higher pensioner and disability premium: severe disablement allowance or incapacity benefit),

paragraph 20H(1)(ee) of that Schedule (limited capability for work) shall be treated as satisfied in relation to that couple on the effective date of that conversion decision.

(7) In this regulation—

(a)paragraphs (2) to (6) are subject to regulation 17 (changes of circumstances before the effective date); and

(b)“joint-claim couple” has the same meaning as in section 1(4) of the Jobseekers Act 1995.]

Textual Amendments

Conversion decision that existing award does not qualify for conversion

15.—(1) [F19Subject to paragraphs (2A) and (4), paragraphs (2), (3) and (6) apply] in any case where the conversion decision is a decision that a notified person's (“P”) existing award or awards do not qualify for conversion into an employment and support allowance.

(2) P's entitlement to one or both of—

(a)an existing award of incapacity benefit or severe disablement allowance; or

(b)an existing award of income support (being an award made to a person incapable of work or disabled),

shall terminate by virtue of this paragraph immediately before the effective date of P's conversion decision.

[F20(2A) Where P–

(a)has an existing award of income support, and

(b)would, on the effective date of P’s conversion decision, remain entitled to income support (by virtue of another provision of the Income Support (General) Regulations 1987) were P not a person to whom regulations 6(4)(a) or 13(2)(b) or (bb) of, or paragraph 7(a) or (b), 10, 12 or 13 of Schedule 1B to, those Regulations (persons incapable of work or disabled) applied,

P’s existing award of income support shall only terminate under paragraph (2)(b) if P notifies the Secretary of State before the effective date of P’s conversion decision that P does not wish to remain entitled to income support on that date.

(2B) Where paragraph (2A) applies, and P’s existing award of income support does not terminate under paragraph (2)(b), any entitlement of P to a disability premium by virtue of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987 (additional condition for the higher pensioner and disability premiums) shall terminate immediately before the effective date of P’s conversion decision.]

(3) Where, immediately before [F21the effective date of P’s conversion decision], P is entitled to be credited with any earnings under regulation 8B(2)(a) of the Social Security (Credits) Regulations 1975 M12 (credits for incapacity for work), P shall not be entitled to be so credited under that regulation on or after that date.

(4) Paragraph (5) applies where—

(a)a conversion decision within the meaning of regulation 5(2)(b) (“the earlier conversion decision”) is made by virtue of either of the following provisions of the 2008 Regulations (as they apply by virtue of regulation 6)–

(i)regulation 22(1) (failure to provide information or evidence requested in relation to limited capability for work), or

(ii)regulation 23(2) (failure to attend for a medical examination to determine whether the claimant has limited capability for work); and

(b)after P is notified of the earlier conversion decision, the Secretary of State is satisfied (or where the conversion decision is appealed to the First-tier Tribunal, that tribunal determines) that P had good cause for failing to–

(i)provide the information requested, or

(ii)attend for or submit to the medical examination for which P was called.

(5) Where this paragraph applies—

(a)the earlier conversion decision is treated as never having been made;

(b)any entitlement of P–

(i)to an existing award which was terminated by virtue of paragraph (2), or

(ii)to be credited with earnings which was terminated by virtue of paragraph (3),

shall be reinstated with effect from the effective date of the earlier conversion decision;

(c)the Secretary of State must make a conversion decision (“the new conversion decision”) in accordance with regulation 5 (deciding whether an existing award qualifies for conversion) in relation to the existing award or awards to which P is entitled;

(d)the notice issued under regulation 4 (notice commencing the conversion phase) has effect in relation to that existing award or those existing awards; and

(e)with the exception of regulation 4 (notice commencing the conversion phase), the remaining provisions of this Part, including this regulation, apply to the new conversion decision.

[F22(6) Where—

(a)paragraph (2) applies; and

(b)P is a member of a joint-claim couple,

any entitlement of that couple to a disability premium by virtue of paragraph 20H(1)(b) or (d) of Schedule 1 to the Jobseeker’s Allowance Regulations 1996 (additional conditions for higher pensioner and disability premium: severe disablement allowance or incapacity benefit) shall terminate immediately before the effective date of P’s conversion decision.

(7) In this regulation—

(a)paragraphs (2), (2A), (3) and (6) are subject to regulation 17 (changes of circumstances before the effective date); and

(b)“joint-claim couple” has the same meaning as in section 1(4) of the Jobseekers Act 1995.]

Textual Amendments

Marginal Citations

M12S.I. 1975/556. Regulation 8B was inserted by SI 1996/2367 and amended by S.I. 2008/1554.

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