93.—(1) Subject to paragraph (3), paragraph (2) applies where a claimant—
(a)has limited capability for work by reason of the claimant’s own misconduct, except in a case where the limited capability is due to a sexually transmitted disease;
(b)fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or surgery which the Department considers is major) recommended by a doctor with whom, or a hospital or similar institution with which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant’s capability for work;
(c)fails without good cause to refrain from behaviour calculated to retard the claimant’s recovery to health; or
(d)is, without good cause, absent from the claimant’s place of residence without informing the Department where the claimant may be found.
(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an employment and support allowance for such period not exceeding 6 weeks as the Department may determine in accordance with Chapter 2 of Part II of the Social Security (Northern Ireland) Order 1998(1).
(3) Paragraph (2) does not apply where the claimant—
(a)is disqualified for receiving an employment and support allowance by virtue of regulations made under section 5B or 6 of the Social Security Fraud Act (Northern Ireland) 2001(2) (loss of benefit for commission of benefit offences); or
(b)is a person in hardship.
(4) In this regulation, “doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom, a person registered or recognised as such in the country in which the person undertakes medical practice.
94.—(1) A claimant is a “person in hardship” if the claimant—
(a)has informed the Department of the circumstances on which the claimant relies to establish that fact; and
(b)falls within paragraph (2), (3) or (5).
(2) A claimant falls within this paragraph if—
(a)she is pregnant;
(b)a member of the claimant’s family is pregnant;
(c)the claimant is single and aged less than 18; or
(d)the claimant is a member of a couple and both members are aged less than 18.
(3) Subject to paragraph (4), the claimant falls within this paragraph if the claimant or the claimant’s partner—
(a)has been awarded an attendance allowance, armed forces independence payment, the care component or the daily living component;
(b)has claimed attendance allowance, armed forces independence payment, disability living allowance or personal independence payment and the claim has not been determined;
(c)devotes what the Department considers is a considerable portion of each week to caring for another person who—
(i)has been awarded an attendance allowance, armed forces independence payment, the care component or the daily living component; or
(ii)has claimed attendance allowance, armed forces independence payment, disability living allowance or personal independence payment and the claim has not been determined; or
(d)has attained the qualifying age for state pension credit, which has the meaning given in section 1(6) of the State Pension Credit Act (Northern Ireland) 2002(3).
(4) A claimant to whom paragraph (3)(b) or (3)(c)(ii) applies is a person in hardship only for 26 weeks from the date of the claim unless the claimant is a person in hardship under another provision of this regulation.
(5) The claimant falls within this paragraph where the Department is satisfied, having regard to all the circumstances and, in particular, the matters set out in paragraph (6), that unless an employment and support allowance is paid, the claimant, or a member of the claimant’s family, will suffer hardship.
(6) The matters referred to in paragraph (5) are—
(a)the resources which are likely to be available to the claimant and the claimant’s family and the length of time for which they might be available; and
(b)whether there is a substantial risk that essential items, including food, clothing and heating, will cease to be available to the claimant or a member of the claimant’s family, or will be available at considerably reduced levels and the length of time for which this might be so.
(7) In this regulation—
“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011(4).
“attendance allowance” means—
an attendance allowance under section 64 of the Contributions and Benefits Act(5);
an increase of disablement pension under section 104 or 105 of that Act (increases where constant attendance needed and for exceptionally severe disablement);
a payment by virtue of Article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983(6) or any analogous payment;
any payment based on the need for attendance which is paid as an addition to a war disablement pension (which means any retired pay or pension or allowance payable in respect of disablement under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003(7);
“care component” means the care component of disability living allowance at the highest or middle rate prescribed under section 72(3) of the Contributions and Benefits Act;
“daily living component” means the daily living component of personal independence payment at the standard or enhanced rate referred to in Article 83 of the Welfare Reform (Northern Ireland) Order 2015;
“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act(8);
“personal independence payment” means an allowance under Part 5 of the Welfare Reform (Northern Ireland) Order 2015.
95. The claimant is to be treated as not having limited capability for work if the claimant is disqualified for receiving an employment and support allowance during a period of imprisonment or detention in legal custody if that disqualification is for more than 6 weeks.
96.—(1) Notwithstanding section 18(4)(b) of the Act(9), a claimant is not disqualified for receiving an employment and support allowance for any period during which that claimant is undergoing imprisonment or detention in legal custody—
(a)in connection with a charge brought or intended to be brought against the claimant in criminal proceedings;
(b)pursuant to any sentence of a court in criminal proceedings; or
(c)pursuant to any order for detention made by a court in criminal proceedings,
unless paragraph (2) applies.
(2) This paragraph applies where—
(a)a penalty is imposed on the claimant at the conclusion of the proceedings referred to in paragraph (1); or
(b)in the case of default of payment of a sum adjudged to be paid on conviction, a penalty is imposed in respect of such default.
(3) Notwithstanding section 18(4)(b) of the Act, a claimant “(C)” is not to be disqualified for receiving an employment and support allowance, for any period during which C is undergoing detention in legal custody after the conclusion of criminal proceedings if it is a period during which C is detained in a hospital or similar institution in Northern Ireland as a person suffering from mental disorder unless—
(a)C is detained under Article 53 of the Mental Health Order (removal to hospital of persons serving sentences of imprisonment etc.); and
(b)in any case where there is in relation to C a release date within the meaning of Article 56(3) of that Order (further provisions as to prisoners under sentence), C is being detained on or before the day which the Secretary of State certifies to be that release date.
(4) In this regulation—
(a)“court” means any court in the United Kingdom, the Channel Islands or the Isle of Man or in any place to which the Colonial Prisoners Removal Act 1884(10) applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial (Appeals) Act 1968(11) or the Courts-Martial Appeal Court;
(b)“hospital or similar institution” means any place (not being a prison, a young offenders centre, a juvenile justice centre or secure accommodation in a children’s home and not being at or in any such place) in which persons suffering from mental disorder are or may be received for care or treatment;
(c)“penalty” means a sentence of imprisonment or detention under Article 45(1) or (2) of the Criminal Justice (Children) (Northern Ireland) Order 1998(12);
(d)in relation to a person who is liable to be detained in Northern Ireland as a result of any order made under the Colonial Prisoners Removal Act 1884, references to a prison must be construed as including references to a prison within the meaning of that Act;
(e)criminal proceedings against any person must be deemed to be concluded upon that person being found insane in those proceedings so that the person cannot be tried or that person’s trial cannot proceed.
(5) Where a claimant outside Northern Ireland is undergoing imprisonment or detention in legal custody and, in similar circumstances in Northern Ireland, the claimant would, by virtue of this regulation, not have been disqualified for receiving an employment and support allowance, the claimant is not disqualified for receiving that allowance by reason only of the imprisonment or detention.
97.—(1) Subject to the following provisions of this regulation, the payment of an employment and support allowance to any claimant—
(a)which is excepted from the operation of section 18(4)(b) of the Act by virtue of the provisions of regulation 96(1), (3) or (5); or
(b)which is payable otherwise than in respect of a period during which the claimant is undergoing imprisonment or detention in legal custody,
is suspended while that claimant is undergoing imprisonment or detention in legal custody.
(2) An employment and support allowance is not to be suspended while the claimant is liable to be detained in a hospital or similar institution, as defined in regulation 96(4), during a period for which in the claimant’s case, the allowance is or would be excepted from the operation of section 18(4)(b) of the Act by virtue of regulation 96(3).
(3) Where, by virtue of this regulation, payment of an employment and support allowance is suspended for any period, the period of suspension is not to be taken into account in calculating any period under regulation 50 of the Claims and Payments Regulations 2016 (extinguishment of right to payment if payment is not obtained within the prescribed period).
2001 c. 17 (N.I.); section 5B was inserted by section 19 of the Welfare reform Act (Northern Ireland) 2010 (c. 13 (N.I.)) and section 6 was amended by Schedule 6 to the Tax Credits Act 2002 (c. 21), paragraph 33 of Schedule 2 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.)) and section 45(1) of the Welfare Reform Act (Northern Ireland) 2007 (c.2 (N.I.))
Section 64 was amended by Article 63(1) of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11)), paragraph 38 of Schedule 1 to the Pensions Act (Northern Ireland) 2008 (c. 1) and paragraph 4 of Schedule 9 to the Welfare Reform (Northern Ireland) Order 2015
S.I. 1983/686; relevant amending instruments are S.I. 1984/1675 and S.I. 2001/420
2003 c.1. Section 639(2) was inserted by the Finance Act 2005 (c.7)
Section 71 was amended by Article 64(1) of the Welfare Reform and Pensions Order (Northern Ireland) 1999
Section 18(4) was amended by paragraph 21(d) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015
S.I. 1998/1504 (N.I. 24); Article 45 was amended by paragraph 19 of Schedule 11 to the Justice (Northern Ireland) Act 2002 (c. 26)