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The Employment and Support Allowance Regulations 2013

Draft Legislation:

This is a draft item of legislation. This draft has since been made as a UK Statutory Instrument: The Employment and Support Allowance Regulations 2013 No. 379

Certain claimants to be treated as having, or not having, limited capability for work-related activity

This section has no associated Explanatory Memorandum

31.—(1) A claimant is to be treated as having limited capability for work-related activity if—

(a)the claimant is terminally ill;

(b)the claimant is—

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii)recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related activity;

(c)in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn child if she does not refrain from work-related activity; or

(d)the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1) is to be treated as having limited capability for work-related activity if—

(a)the claimant suffers from some specific disease or bodily or mental disablement; and

(b)by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited capability for work-related activity.

(3) A claimant is to be treated as not having limited capability for work-related activity where—

(a)it has previously been determined, within the six months preceding the date of claim for employment and support allowance, on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013, that the claimant does not have limited capability for work and work-related activity; and

(b)it appears to the Secretary of State that—

(i)the determination was not based on ignorance of, or mistake as to, a material fact; and

(ii)there has been no relevant change of circumstances in relation to the claimant’s physical or mental condition.

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