The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2011

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend a number of different provisions relating to social security.

Part 1 makes general provision about these Regulations. Part 2 amends primary legislation and Part 3 amends secondary legislation.

Part 2 makes amendments to two provisions of primary legislation, consequential on the provisions in Part 1 of the Welfare Reform Act (Northern Ireland) 2007 (“the Welfare. Reform Act”) Regulation 3 amends section 155(5) of the Social Security Administration (Northern Ireland) Act 1992 to make provision for modification of legislation in order to give effect to reciprocal agreements made with countries outside the United Kingdom. Section 155(5) provides that the power in section 155(1) may be used to modify secondary legislation under specified acts in relation to particular benefits. The subsection is currently limited to regulations made under the Social Security Contributions and Benefits (Northern Ireland) Act 1992 and the Social Security Administration (Northern Ireland) Act 1992. Regulation 3 extends the coverage of this provision so that it also applies to regulations made under the Welfare Reform Act.

Regulation 4 amends the Table attached to section 56(6) of the Data Protection Act 1998. Section 56 of this Act makes it a criminal offence to require an individual to supply or produce a relevant record, as defined in subsection (6), for the purposes of recruitment, continued employment, or the provision of services. The Table attached to section 56(6) lists, at item 2(e), the Department as data controller in relation to his functions under the Social Security Contributions and Benefits (Northern Ireland) Act 1992, the Social Security Administration (Northern Ireland) Act 1992 and the Jobseekers Act (Northern Ireland) 1995. Regulation 4 extends this to the Secretary of State’s functions under the Welfare Reform Act.

In Part 3, these Regulations amend;

• the Social Security Benefit (Dependency) Regulations (Northern Ireland) 1977

• the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982;

• the Income Support (General) Regulations (Northern Ireland) 1987 (“the Income Support Regulations”);

• the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (“the Claims and Payments Regulations”);

• the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995;

• the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 (“the Jobseeker’s Allowance Regulations”);

• the Social Security (Recovery of Benefits) Regulations (Northern Ireland) 1997

• the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (“the Decisions and Appeals Regulations”);

• the Social Security (Work-focused Interviews for Lone Parents) Regulations (Northern Ireland) 2001;

• the State Pension Credit Regulations (Northern Ireland) 2003;

• the Social Security (Work-focused Interviews) Regulations (Northern Ireland) 2003;

• the Social Security (Work-focused Interviews for Partners) Regulations (Northern Ireland) 2003;

• the Social Security (Habitual Residence Amendment) Regulations (Northern Ireland) 2004

• the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005

• the Housing Benefit Regulations (Northern Ireland) 2006 (“the Housing Benefit Regulations”);

• the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 (“the Housing Benefit SPC Regulations”);

• the Employment and Support Allowance Regulations (Northern Ireland) 2008 (“the Employment and Support Allowance Regulations”);

• the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations (Northern Ireland) 2008;

• the Social Security (Incapacity Benefit Work-focused Interviews) Regulations (Northern Ireland) 2008;

• the Social Security (Housing Costs Special Arrangements) (Amendment and Modification) Regulations (Northern Ireland) 2008;

• The Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010; and

• the Social Security (Contribution Conditions for Jobseeker’s Allowance and Employment and Support Allowance) Regulations (Northern Ireland) 2010.

Regulation 5 replaces a reference to repealed legislation in the Social Security Benefit (Dependency) (Northern Ireland) Regulations 1977.

Regulation 6 amends the Statutory Sick Pay (General) Regulations (Northern Ireland) 1982, to update legislation relating to public health provisions. Regulations 9(3) and 21(2)(c) and (4) make similar amendments to the Social Security (Incapacity for Work) (General) Regulations 1995 and the Employment and Support Allowance Regulations.

Regulation 7 makes several amendments to the Income Support Regulations mainly in order to provide for the Caxton Foundation, a new charitable trust established on 28th March 2011 for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with its provisions. The amendments will provide that payments from the Caxton Foundation are to be disregarded for certain purposes Similar amendments are made in relation to other income-related benefits in regulation 10 (in respect of jobseeker’s allowance ), regulation 14 (in respect of the state pension credit) regulations 19 and 20 (in respect of housing benefit), and regulation 21 (in respect of employment and support allowance).

Regulation 11 provides for similar amendments to the Social Security (Recovery of Benefits) Regulations (Northern Ireland) 1997, regulation 18 to the Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005 (in respect of the social fund funeral payments) and regulation 22 to the Social Security (Recovery of Benefits) (Lump Sum Payments) Regulations (Northern Ireland) 2008.

Regulations 7, 10, 14 and 19 to 21 remove the provision whereby persons from abroad who were registered under the Home Office Worker Registration Scheme were not treated as persons from abroad for benefit purposes.

Regulation 7(7) makes amendments to the Income Support Regulations to achieve the policy intention that an enhanced disability premium (“EDP”) be awarded for eight weeks following the death of a child or young person where the claimant’s partner is entitled to child benefit following the death of that child or young person. This extends an earlier provision that allowed for an EDP to be awarded for a period of 8 weeks following the death of a child or young person in respect of whom the premium was awarded, provided the claimant is entitled to child benefit for 8 weeks in respect of that child or young person after his or her death. Similar amendments are made in respect of JSA (regulation 10(10)), housing benefit (regulations 19(7)(b) and 20(8)(b)).

Regulation 8 amends Schedule 8A to the Social Security (Claims and Payments) Regulations to ensure that deductions from benefit to discharge obligations to third parties can be made where a person is being paid both income-based and contribution-based jobseeker’s allowance or both income-related and contributory employment and support allowance.

Regulations 9(2) and 21(5) and (6) amend the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995 and the Employment and Support Allowance Regulations respectively to reduce the amount of time that passes before a claimant is to be treated as capable of work (in the context of incapacity benefit) or treated as not having limited capability for work or work-related activity (in the context of ESA) where the claimant fails without good cause to comply with a request for information. By virtue of regulation 2 of these Regulations, the amendments in regulations 9(2) and 21(5) and (6) apply in relation to information requested in the form of a questionnaire first issued by the Department on or after 31st October 2011.

Regulation 10 amends the Jobseeker’s Allowance Regulations; paragraph (3) amends the definition of remunerative work by revoking two paragraphs which refer to legislation which has been revoked. Paragraphs (4) to (5) remove outdated references and paragraph (7) updates provisions to include employment and support allowance

Regulation 10(9) amends the Jobseeker’s Allowance Regulations to provide that a joint-claim couple may be entitled to a joint-claim JSA even though one member of the couple does not meet all of the conditions of entitlement. The new exemption applies in circumstances where the claimant provides evidence of limited capability for work.

Regulation 12(a) amends the Decisions and Appeals Regulations to enable the Department to revise a decision at any time where there is a non-medical change of circumstances relating to an ESA decision. Regulation 12(b) provides for two further grounds of revision relating to where a person’s ESA entitlement is terminated (or not established in the first place as a result of a negative decision made where a person has been reassessed for ESA), the decision giving rise to that is appealed to the tribunal, the person then claims and is awarded income support or JSA during the interim period and the appeal against the original decision is eventually successful.

Regulation 13 amends the Social Security (Work-focused Interviews for Lone Parents) Regulations (Northern Ireland) 2001 (“the 2001 Regulations”). Paragraph (2) changes the requirement for certain lone parents to attend a quarterly instead of a six monthly work–focused interview where their youngest child is aged between 4 and 5. It also removes paragraph (4) of regulation 8 of the 2001 Regulations to reflect the approach taken in other regulations making provision for benefit sanctions.

Regulation 14 amends the State Pension Credit Regulations. In particular, paragraph (4) amends regulation 24 of the State Pension Credit Regulations so that any payment made to a third party on behalf of the claimant, as a service user, is not treated as income of the claimant. Similar amendments are made in respect of housing benefit by regulation 20(5). Paragraph (6) amends Part 1 of Schedule 5 to the State Pension Credit Regulations so that any direct payment made to a claimant is to be disregarded as capital. Similar amendments are made in respect of housing benefit by regulations 20(9).

Regulation 15 amends the Social Security (Work-focused Interviews) Regulations (Northern Ireland) 2003 (“the 2003 Regulations”). Paragraph (2) amends regulation 3A to make the same change in relation to lone parents changing the requirement for certain lone parents where their youngest child is aged between 4 and 5 to attend a quarterly instead of a six monthly work–focused interview. Paragraph (3) makes the same change in relation to sanctions under the 2003 Regulations as regulation 13(3) of these Regulations makes to the 2001 Regulations, to enable sanctions rates to be amended when benefit rates change and to otherwise align with the approach taken where the amount of benefit payable to a claimant changes during a sanction period.

Regulation 16 amends the Social Security (Work-focused Interviews for Partners) Regulations (Northern Ireland) 2003 to make the same amendment in relation to sanctions under those Regulations as regulation 13(3) of these Regulations makes in relation to the 2001 Regulations to enable sanction rates to be amended when benefit rates change and to otherwise align with the approach taken where the amount of benefit payable to a claimant changes during a sanction period.

Regulation 17 amends regulation 6 of the Social Security (Habitual Residence) Amendment Regulations (Northern Ireland) 2004. When the right to reside test was first introduced, in May 2004, all those entitled to a specified income-related benefit on 30 April 2004 were transitionally protected and were allowed to move between the specified benefits without being required to satisfy the test for each benefit. Paragraph (b) adds ESA to the list of specified benefits in paragraph (4) of regulation 6. Paragraph (a) inserts paragraph (1)(ca) into paragraph (1) of that regulation, to provide that the right to reside test for income-related benefits does not apply to a person who had already benefited from the (1)(c) condition, who then claims ESA and it is subsequently determined that their ESA entitlement is separated from a previous period of entitlement to that benefit by not more than 12 weeks.

Regulations 19 and 20 make a number of amendments to the regulations relating to housing benefit. In particular, they amend the meaning of earnings in the case of self-employed earners so that they no longer include certain allowances paid to the claimant for the purpose of assisting in carrying out the claimant’s business. They also remove provisions providing an amount in the claimant’s applicable amount in respect of a child under one for whom the claimant receives an additional amount of child tax credit. The additional amount of child tax credit was abolished in April 2011.

Regulation 21 amends the Employment and Support Allowance Regulations. In addition to making changes in respect of ESA replicated elsewhere in these Regulations in relation to other income-related benefits, regulation 23 also makes other changes unique to ESA. Paragraph (3) substitutes a new, but identical, paragraph (b) for existing regulation 8(1)(b) of the Employment and Support Allowance Regulations This amendment is necessary because of a technical omission in the making of regulation 3(3) of the Social Security (Contribution Conditions for Jobseeker’s Allowance and Employment and Support Allowance) Regulations (Northern Ireland) 2010, which substituted the existing regulation 8(1)(b) into the Employment and Support Allowance Regulations. Paragraphs (11) and (12) amend regulation 147A(5) of the Employment and Support Allowance Regulations to make it clear that a claimant is treated as not having limited capability for work from the first day of the benefit week following the date on which the Department receives the appeal tribunal’s notification that the claimant’s appeal has been dismissed, withdrawn or struck out. In addition, regulation 147A(5) is amended to ensure it also applies in circumstances where regulation 33(9) of the Decisions and Appeals Regulations applies. Paragraph (13) defines “most recent past period of limited capability for work” for the purposes of defining whether a claimant is a work or training beneficiary under regulation 148 of the Employment and Support Allowance Regulations. Paragraph (14) corrects an incorrect legislative reference. Paragraph (15) adds attendance allowance to the care component of disability living allowance as the benefits which have to be received as a condition of entitlement to the severe disability premium for ESA. This is because the definition of “attendance allowance” in regulation 2(1) of the Employment and Support Allowance Regulations is wider than attendance allowance definition elsewhere which is payable only to pension age claimants. Paragraph (16) makes a small amendment to the housing costs linking rules in relation to ESA which replicate similar changes made in relation to other income-related benefits. Similar amendments are made in these Regulations in relation to JSA in regulation 10(11).

Regulation 23 amends the Social Security (Incapacity Benefit Work-focused Interviews) Regulations (Northern Ireland) 2008 and makes the same change in relation to sanctions under those regulations as regulation 13(3) of these Regulations makes to the 2001 Regulations, to enable sanctions rates to be amended when benefit rates change and to otherwise align with the approach taken where the amount of benefit payable to a claimant changes during a sanction period.

Regulation 24 amends the Social Security (Housing Costs Special Arrangements) (Amendment and Modification) Regulations (Northern Ireland) 2008 to modify the Jobseeker’s Allowance Regulations with the effect that, in some cases, no amount may be met in respect of interest on a qualifying loan where a jobseeker’s allowance claimant has been in receipt of interest on a qualifying loan for a total of 104 weeks. The limitation does not apply where the person was previously entitled to income support or ESA within a period of 12 weeks or less. Regulation 24 provides that where entitlement to income support only arises as the result of mortgage interest run on (MIRO) being paid after an award of jobseeker’s allowance ends, MIRO is to be disregarded for the purpose of deciding whether the exception applies.

Regulation 25 amends the Employment and Support Allowance (Transitional Provisions, Housing Benefit (Existing Awards) Regulations (Northern Ireland) 2010. Paragraph (2) amends regulation 6(1)(b) of those regulations to provide that the listed statutory provisions can be applied for the purposes of supersession before the effective date of the conversion decision, as well as revision. Paragraph (3) amends regulation 17 of those regulations to provide that the Department is able to supersede a conversion decision in certain circumstances; regulation 17(d) and (e) as made only provided for it to be revised. Paragraph (4)(a) mirrors the changes made by regulations 21(11) and (12) of these Regulations. It also provides that where an appeal against an adverse decision is upheld, entitlement to a pending-appeal award terminates from the first day of the benefit week following the date on which the Department receives the appeal tribunal’s notification of the outcome of the appeal. Paragraph (4)(b) modifies the application of regulation 6 of the Social Security (Habitual Residence) Amendment Regulations (Northern Ireland) 2004 to continue to transitionally protect the claimant who, before reassessment, was already benefiting from transitional protection from the right to reside test, and who, as a consequence of reassessment, becomes entitled to ESA.

Regulation 26 makes further consequential revocations.

In so far as these Regulations are required, for the purposes of regulations 19 and 20, to be referred to the Social Security Advisory Committee under section 149(2) of the Social Security Administration (Northern Ireland) Act 1992, after agreement by the Social Security Advisory Committee, they have not been so referred by virtue of section 150(1)(b) of that Act. Otherwise they make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, that Act, are not subject to the requirement of section 149(2) or, as the case may be, (2A) of that section for prior reference to the Social Security Advisory Committee or the Industrial Injuries Advisory Council.