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Statutory Instruments

2008 No. 794

Social Security

The Employment and Support Allowance Regulations 2008

Made

25th March 2008

Laid before Parliament

27th March 2008

Coming into force in accordance with regulation 1

The Secretary of State for Work and Pensions, in exercise of the powers conferred by sections 2(1)(a) and (c), (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3) F1, 4(2)(a), (3), (6)(a) and (c), 5(2) and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3) and (4)(a) and (b), 11(1), (2)(a) to (g), (3) to (5), (6)(a) and (7)(c), 12(1), (2)(a) to (h), (3) to (7), 14(1) and (2)(a) and (b), 16(2)(a) and (4), 17, 18(1), (2) and (4), 20(2) to (7), 22 F2, 23(1) and (3), 24(1) F3, (2)(b) and (3), 25(1) to (5) and 26(2) of, and paragraphs 1(4), 3(2), 4(1)(a) and (c), (3) and (4) and 6(1)(b), (2) to (5) F4, (7) and (8) of Schedule 1 to, and paragraphs 1 to 7, 8(1), 9, 10, 12 and 14 of Schedule 2 to, the Welfare Reform Act 2007 F5, section 5(1) of the Social Security Administration Act 1992 F6 and section 21(1)(a) of the Social Security Act 1998 F7 makes the following Regulations, which are made by virtue of, or consequential on, the provisions of the Welfare Reform Act 2007 and which are made before the end of a period of 6 months beginning with the coming into force of those provisions:

Textual Amendments

F1Section 3(3) is cited for the power to prescribe a payment under paragraph (b) of the definition of “pension payment”.

F2Section 22 is cited insofar as it relates to paragraphs 1 to 3, 6, 7, 8(1), 9 and 10 of Schedule 2.

F3Section 24(1) is cited for the definition of “employment” and “employed”, “period of limited capability for work”, “prescribed”, “regulations” and “week”.

F4Paragraph 6(5) of Schedule 1 is cited for the definition of “couple”, “education” and “remunerative work”.

Modifications etc. (not altering text)

C4Instrument modified (temp.) (8.4.2020) by The Social Security (Coronavirus) (Prisoners) Regulations 2020 (S.I. 2020/409), reg. 2(2)(d) (with reg. 6(2)) (as amended) (12.5.2021) by S.I. 2020/476, reg. 4(6)

PART 1E+W+SGENERAL

[F8Citation, commencement and application] E+W+S

1.—[F9(1)] These Regulations may be cited as the Employment and Support Allowance Regulations 2008 and shall come into force—

(a)subject to paragraphs (b) and (c), on 27th October 2008;

(b)in relation to regulation 128(6)(a) and paragraph 15(2) of Schedule 6, so far as it applies to a maintenance calculation, in relation to a particular case, on the day on which paragraph 11(20)(d) of Schedule 3 to the 2000 Act comes into force for the purposes of that type of case;

F10(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F11(2) These Regulations do not apply to a particular case on any day on which section 33(1)(b) of the 2012 Act (abolition of income-related employment and support allowance) is in force and applies in relation to that case.]

Textual Amendments

InterpretationE+W+S

2.—(1) In these Regulations—

“Abbeyfield Home” means an establishment run by the Abbeyfield Society including any body corporate or incorporate which is affiliated to that Society;

“the Act” means the Welfare Reform Act 2007F12;

[F13“the 2012 Act” means the Welfare Reform Act 2012;]

F14...

“adoption leave” means a period of absence from work on ordinary or additional adoption leave under section 75A or 75B of the Employment Rights Act 1996F15;

[F16“adult disability payment” has the meaning given in regulation 2 of the Disability Assistance for Working Age People (Scotland) Regulations 2022;]

“aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where—

(a)

the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mail carried on that aircraft; and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,

but does not include a person who is in employment as a member of Her Majesty's forces;

[F17“approved blood scheme” means a scheme established or approved by the Secretary of State, or trust established with funds provided by the Secretary of State, for the purpose of providing compensation in respect of a person having been infected from contaminated blood products;]

“Armed Forces and Reserve Forces Compensation Scheme” means the scheme established under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004F18;

[F19“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;]

“attendance allowance” means—

(a)

an attendance allowance under section 64 of the Contributions and Benefits Act;

(b)

an increase of disablement pension under section 104 or 105 of that Act;

(c)

F20...

(d)

F20...

(e)

a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983 F21 or any analogous payment;

(f)

any payment based on the need for attendance which is paid as an addition to a war disablement pension;

[F22“basic rate” has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);]

“benefit Acts” means the Contributions and Benefits Act, Jobseekers Act[F23, Part 1 of the Act and the Pensions Act 2014];

“benefit week” means a period of 7 days ending on such day as the Secretary of State may direct but for the purposes of calculating any payment of income “benefit week” means the period of 7 days ending on the day before the first day of the first benefit week following the date of claim or the last day on which an employment and support allowance is paid if it is in payment for less than a week;

“board and lodging” means—

(a)

accommodation provided to a person or, if the person is a member of a family, to that person or any other member of that person's family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of that person's family) and are consumed in that accommodation or associated premises; or

(b)

accommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,

except accommodation provided by a close relative of the person or any other member of the person's family, or other than on a commercial basis;

“care home” in England F24... has the meaning assigned to it by section 3 of the Care Standards Act 2000F25, [F26in Wales means a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 which is provided wholly or mainly to persons aged 18 or over] and in Scotland means a care home service within the meaning assigned to it by [F27paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010];

“carer's allowance” means an allowance under section 70 of the Contributions and Benefits Act;

[F28“carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023;]

[F29“the Caxton Foundation” means the charitable trust of that name established on 28th March 2011 out of funds provided by the Secretary of State for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with its provisions;]

“child” means a person under the age of 16;

[F30“child abuse payment” means a payment from a scheme established or approved by the Secretary of State for the purpose of providing compensation in respect of historic institutional child abuse in the United Kingdom;]

[F31“child disability payment” has the meaning given in regulation 2 of the DACYP Regulations;]

“child tax credit” means a child tax credit under section 8 of the Tax Credits Act;

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple;

“college of further education” means a college of further education within the meaning of Part 1 of the Further and Higher Education (Scotland) Act 1992F32;

“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged F33... to a Departmental Expenditure Vote to which payments of benefit or tax credits under the benefit Acts or the Tax Credits Act are charged;

“confinement” has the meaning given to it by section 171(1) of the Contributions and Benefits ActF34;

[F35“contribution-based jobseeker’s allowance” means an allowance under the Jobseekers Act as amended by the provisions of Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers Act as that Act has effect apart from those provisions;]

“co-ownership scheme” means a scheme under which a dwelling is let by a housing association and the tenant, or the tenant's personal representative, will, under the terms of the tenancy agreement or of the agreement under which the tenant became a member of the association, be entitled, on that tenant ceasing to be a member and subject to any condition stated in either agreement, to a sum calculated by reference directly or indirectly to the value of the dwelling and “co-ownership agreement” will be construed accordingly;

“councillor” means—

(a)

in relation to England and Wales, a member of a London borough council, a county council, [F36a county borough council,] a district council, a parish or community council, the Common Council of the City of London or the Council of the Isles of Scilly; and

(b)

in relation to Scotland, a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 F37;

“councillor's allowance” means—

(a)

in England F38..., an allowance under or by virtue of—

(i)

section 173 or 177 of the Local Government Act 1972F39; or

(ii)

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989F40,

other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972; or

(b)

in Scotland, an allowance or remuneration under or by virtue of—

(i)

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989; or

(ii)

[F41section 11] of the Local Governance (Scotland) Act 2004F42; [F43or]

(c)

[F43in Wales, an allowance under or by virtue of a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972;]

F44[F45“couple” means—

(a)

two people who are married to, or civil partners of, each other and are members of the same household; or

(b)

two people who are not married to, or civil partners of, each other but are living together [F46as if they were a married couple or civil partners];]

“Crown tenant” means a person who occupies a dwelling under a tenancy or licence where the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department, except (in the case of an interest belonging to Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners;

[F47“the DACYP Regulations” means the Disability Assistance for Children and Young People (Scotland) Regulations 2021;]

[F13“daily living component” means the daily living component of personal independence payment under section 78 of the 2012 Act;]

“dependent child” means any child or qualifying young person who is treated as the responsibility of the claimant or the claimant's partner, where that child or young person is a member of the claimant's household;

“descriptor” means, in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which describes a person's ability to perform that activity;

“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act;

“doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom of whom the Secretary of State may request a medical opinion, a person registered or recognised as such in the country in which the person undertakes medical practice;

“dwelling” means any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises;

“dwelling occupied as the home” means the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as the claimant's home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated;

“Eileen Trust” means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions;

“employed earner” is to be construed in accordance with section 2(1)(a) of the Contributions and Benefits Act;

“employment” includes any trade, business, profession, office or vocation and “employed” has a corresponding meaning;

F48...

“employment zone” means an area within Great Britain designated for the purposes of section 60 of the Welfare Reform and Pensions Act 1999 F49 and an “employment zone programme” means a programme established for such an area or areas designed to assist claimants for a jobseeker's allowance to obtain sustainable employment;

[F50“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament [F51or the National Assembly for Wales];]

“failure determination” has the meaning given by regulation 63(1);

“family” means—

(a)

a couple;

(b)

a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person;

(c)

a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a young person;

“first contribution condition” means the condition set out in paragraph 1(1) of Schedule 1 to the Act;

[F52“First-tier Tribunal” has the meaning given by section 3(1) of the Tribunals, Courts and Enforcement Act 2007;]

[F53“first year of training” means a period of one year beginning with a person’s first day of training.]

“full-time student” has the meaning prescribed in regulation 131 (students: interpretation);

“the Fund” means monies made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by the Secretary of State on 24th April 1992 or, in Scotland, on 10th April 1992;

[F54“Grenfell Tower payment” means a payment made for the purpose of providing compensation or support in respect of the fire on 14th June 2017 at Grenfell Tower;]

“guaranteed income payment” means a payment made under article 14(1)(b) or 21(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005F55;

[F56“hardship payment” means an income-related employment and support allowance payable at a reduced rate in accordance with the provisions of regulation 64D;]

“health care professional” means—

(a)

a registered medical practitioner;

(b)

a registered nurse; or

(c)

an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999F57;

“Health Service Act” means the National Health Service Act 2006F58;

“Health Service (Wales) Act” means the National Health Service (Wales) Act 2006F59;

[F60“the Horizon system” means any version of the computer system used by the Post Office known as Horizon, Horizon Legacy, Horizon Online or HNG-X;”;]

“housing association” has the meaning given to it by section 1(1) of the Housing Associations Act 1985F61;

“housing benefit expenditure” means expenditure in respect of which housing benefit is payable as specified in regulation 12(1) of the Housing Benefit Regulations 2006 F62 but does not include any such expenditure in respect of which an additional amount is applicable under regulation 67(1)(c) or 68(1)(d)(housing costs);

“Immigration and Asylum Act” means the Immigration and Asylum Act 1999F63;

“income-related benefits” means the benefits listed in section 123(1) of the Contributions and Benefits Act;

“Income Support Regulations” means the Income Support (General) Regulations 1987F64;

[F65“independent hospital”—

(a)

in England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section;

(b)

in Wales, has the meaning assigned to it by section 2 of the Care Standards Act 2000; and

(c)

[F66in Scotland, means an independent health care service as defined in section 10F(1)(a) and (b) of the National Health Service (Scotland) Act 1978;]]

F67...

F67...

F67...

“the Independent Living Fund (2006)” means the Trust of that name established by a deed dated 10th April 2006 and made between the Secretary of State for Work and Pensions of the one part and Margaret Rosemary Cooper, Michael Beresford Boyall and Marie Theresa Martin of the other part;

F67...

“Jobseekers Act” means the Jobseekers Act 1995;

“Jobseeker's Allowance Regulations” means the Jobseeker's Allowance Regulations 1996F68;

“last day of the course” means the last day of the final academic term of the course in which the student is enrolled;

“limited capability for work assessment” means the assessment of whether a person has limited capability for work as set out in regulation 19(2) and in Schedule 2;

[F69“local welfare provision” means occasional financial or other assistance given by a local authority, the Scottish Ministers or the Welsh Ministers, or a person authorised to exercise any function of, or provide a service to, them, to or in respect of individuals for the purpose of—

(a)

meeting, or helping to meet, an immediate short term need—

(i)

arising out of an exceptional event, or exceptional circumstances; and

(ii)

that requires to be met in order to avoid a risk to the well-being of an individual; or

(b)

enabling individuals to establish or maintain a settled home, where those individuals have been or, without the assistance, might otherwise be—

(i)

in prison, hospital, a residential care establishment or other institution; or

(ii)

homeless or otherwise living an unsettled way of life;]

“London Bombings Relief Charitable Fund” means the company limited by guarantee (number 5505072) and registered charity of that name established on 11th July 2005 for the purpose of (amongst other things) relieving sickness, disability or financial need of victims (including families or dependants of victims) of the terrorist attacks carried out in London on 7th July 2005;

[F70“the London Emergencies Trust” means the company of that name (number 09928465) incorporated on 23rd December 2015 and the registered charity of that name (number 1172307) established on 28th March 2017;]

F71...

“long tenancy” means a tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture (or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy;

[F72“MFET Limited” means the company limited by guarantee (number 7121661) of that name, established for the purpose in particular of making payments in accordance with arrangements made with the Secretary of State to persons who have acquired HIV as a result of treatment by the NHS with blood or blood products;]

“Macfarlane (Special Payments) Trust” means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia;

“Macfarlane (Special Payments) (No. 2) Trust” means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;

“Macfarlane Trust” means the charitable trust, established partly out of funds provided by the Secretary of State to the Haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;

“main phase employment and support allowance” means an employment and support allowance where the calculation of the amount payable in respect of the claimant includes a component under section 2(1)(b) or 4(2)(b) of the Act [F73or where the claimant is a member of the work-related activity group];

[F74“the Mandatory Work Activity Scheme” means a scheme within section 17A of the Jobseekers Act 1995, known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to provide work or work-related activity for up to 30 hours per week over a period of four consecutive weeks with a view to assisting claimants to improve their prospects of obtaining employment;]

“mariner” means a person who is or has been in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—

(a)

the employment in that other capacity is for the purposes of that ship or vessel or her crew or any passengers or cargo or mails carried by the ship or vessel; and

(b)

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on her voyage;

but does not include a person who is in employment as a member of Her Majesty's forces;

F75...

“medical evidence”[F76, except in regulation 32A,] means—

(a)

evidence from a health care professional approved by the Secretary of State; and

(b)

evidence (if any) from any health care professional or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances;

“Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations 1976F77;

F78...

“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly;

“member of Her Majesty's forces” means a person, other than one mentioned in Part 2 of Schedule 1 who is—

(a)

over 16 years of age; and

(b)

a member of an establishment or organisation specified in Part 1 of that Schedule who gives full pay service,

but does not include any such person while absent on desertion;

[F79“member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under Part 5 of these Regulations other than by virtue of regulation 30 of these Regulations;]

“mobility supplement” means any supplement under article 20 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 F80 including such a supplement by virtue of any other scheme or order or under article 25A of the Personal Injuries (Civilians) Scheme 1983F81;

[F82“the National Emergencies Trust” means the registered charity of that name (number 1182809) established on 28th March 2019;]

[F83“National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 (rate of the national minimum wage);]

“net earnings” means such earnings as are calculated in accordance with regulation 96;

“net profit” means such profit as is calculated in accordance with regulation 98;

“New Deal options” means the employment programmes specified in regulation 75(1)(a)(ii) of the Jobseeker's Allowance Regulations and the training scheme specified in regulation 75(1)(b)(ii) of those Regulations;

[F84“new style ESA” means an allowance under Part 1 of the Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance;]

“non-dependant” has the meaning prescribed in regulation 71;

“non-dependant deduction” means a deduction that is to be made under regulation 67(1)(c) (prescribed amounts) and paragraph 19 of Schedule 6 (housing costs);

“occupational pension” means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;

“occupational pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993F85;

“ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities;

[F86“parental bereavement leave” means leave under section 80EA of the Employment Rights Act 1996;]

“partner” means where a claimant—

(a)

is a member of a couple, the other member of that couple;

(b)

is a husband or wife by virtue of a polygamous marriage, the other party to the marriage or any spouse additional to either party to the marriage;

“passenger” means any person carried on a ship except—

(a)

a person employed or engaged in any capacity on board the ship on the business of the ship; or

(b)

a person on board the ship either in pursuance of the obligation to carry shipwrecked, distressed or other persons, or by reason of any circumstance that neither the master nor the owner nor the charterer (if any) could have prevented or forestalled;

[F87“paternity leave” means a period of absence from work on F88... paternity leave by virtue of section 80A or 80B of the Employment Rights Act 1996 F89...;]

“payment” includes a part of a payment;

“pay period” means the period in respect of which a claimant is, or expects to be, normally paid by the claimant's employer, being a week, a fortnight, four weeks, a month or other shorter or longer period as the case may be;

[F90“pension age disability payment” has the meaning given in regulation 2 of the Disability Assistance for Older People (Scotland) Regulations 2024;]

“pension fund holder” means in relation to a personal pension scheme or an occupational pension scheme, the trustees, managers or scheme administrators, as the case may be, of the scheme concerned;

“pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995F91;

“period of limited capability for work” means [F92except in paragraph (5), a period throughout which a person has, or is treated as having, limited capability for work, and does not include a period which is outside the prescribed time for claiming as specified in regulation 19 of the Social Security (Claims and Payments) Regulations 1987];

“period of study” means the period beginning with the date on which a person starts attending or undertaking a course of study and ending with the last day of the course or such earlier date (if any) as that person finally abandons it or is dismissed from it;

[F13“personal independence payment” means personal independence payment under Part 4 of the 2012 Act;]

“personal pension scheme” means—

(a)

a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993F93;

(b)

an annuity contract or trust scheme approved under section 620 or 621 of the Income and Corporation Taxes Act 1988 F94 or a substituted contract within the meaning of section 622(3) of that Act which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(f) of Schedule 36 to the Finance Act 2004 F95;

(c)

a personal pension scheme approved under Chapter 4 of Part 14 of the Income and Corporation Taxes Act 1988 which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(g) of Schedule 36 to the Finance Act 2004;

“policy of life insurance” means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;

“polygamous marriage” means any marriage entered into under a law which permits polygamy where—

(a)

either party has for the time being any spouse additional to the other party; and

(b)

the claimant, the other party to the marriage and the additional spouse are members of the same household;

[F60“the Post Office” means Post Office Limited (registered number 02154540);”;]

[F60“Post Office compensation payment” means a payment made by the Post Office or the Secretary of State for the purpose of providing compensation or support which is—

(a)

in connection with the failings of the Horizon system; or

(b)

otherwise payable following the judgment in Bates and Others v Post Office Ltd ((No. 3) “Common Issues”);”;]

[F96“public authority” includes any person certain of whose functions are functions of a public nature;]

[F96“the qualifying age for state pension credit” means—

(a)

in the case of a woman, pensionable age, and

(b)

in the case of a man, the age which is pensionable age in the case of a woman born on the same day as the man;]

“qualifying person” means a person in respect of whom [F97a Grenfell Tower payment [F98, a child abuse payment [F99, a Windrush payment, a Post Office compensation payment or a vaccine damage payment]] has been made or] payment has been made from the Fund, the Eileen Trust [F100, MFET Limited], the Skipton Fund [F101, the Caxton Foundation] [F102, the Scottish Infected Blood Support Scheme] [F103, an approved blood scheme] [F104, the London Emergencies Trust, the We Love Manchester Emergency Fund] [F105, the National Emergencies Trust] [F106, the Victims of Overseas Terrorism Compensation Scheme] or the London Bombings Relief Charitable Fund;

“qualifying remunerative work” has the meaning given by Part 1 of the Tax Credits Act;

“qualifying young person” has the meaning given by section 142 of the Contributions and Benefits Act (child and qualifying young person);

“relative” means close relative, grand-parent, grand-child, uncle, aunt, nephew or niece;

F107...

“relevant enactment” means the Army Act 1955F108, the Air Force Act 1955F109, the Naval

F110...

Discipline Act 1957F111, the Matrimonial Proceedings Children Act 1958F112, the Social Work (Scotland) Act 1968F113, the Family Law Reform Act 1969F114, the Children and Young Persons Act 1969F115, the Matrimonial Causes Act 1973F116, the Domestic Proceedings and Magistrates' Courts Act 1978F117, [F118the Adoption and Children (Scotland) Act 2007], the Family Law Act 1986F119, the Children Act 1989 F120 and the Adoption and Children Act 2002F121;

“remunerative work” has the meaning prescribed in regulations 41 and 42 except in relation to Schedules 6 and 7;

[F122“Scottish basic rate” means the rate of income tax of that name calculated in accordance with section 6A of the Income Tax Act 2007;]

[F123“Scottish Infected Blood Support Scheme” means the scheme of that name administered by the Common Services Agency (constituted by section 10 of the National Health Service (Scotland) Act 1978);]

[F122“Scottish taxpayer” has the same meaning as in Chapter 2 of Part 4A of the Scotland Act 1998;]

“second contribution condition” means the condition set out in paragraph 2(1) of Schedule 1 to the Act;

“self-employed earner” is to be construed in accordance with section 2(1)(b) of the Contributions and Benefits Act;

“self-employment route” means assistance in pursuing self-employed earner's employment whilst participating in—

(a)

an employment zone programme; or

(b)

a programme provided or other arrangements made under section 2 of the Employment and Training Act 1973 F124 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 F125 (functions in relation to training for employment etc.);

F126...

[F127“shared parental leave” means leave under section 75E or 75G of the Employment Rights Act 1996;]

“single claimant” means a claimant who neither has a partner nor is a lone parent [F128or a person who has no partner and who is responsible for and a member of the same household as a young person];

“Skipton Fund” means the ex-gratia payment scheme administered by the Skipton Fund Limited, incorporated on 25th March 2004, for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with the scheme's provisions;

“sports award” means an award made by one of the Sports Councils named in section 23(2) of the National Lottery etc. Act 1993 F129 out of sums allocated to it for distribution under that section;

F67...

[F130“state pension credit” means a state pension credit under the State Pension Credit Act 2002;]

“subsistence allowance” means an allowance which an employment zone contractor has agreed to pay to a person who is participating in an employment zone programme;

“the Tax Credits Act” means the Tax Credits Act 2002F131;

“terminally ill”, in relation to a claimant, means the claimant is suffering from a progressive disease and death in consequence of that disease can reasonably be expected within [F13212 months];

[F133“traineeship” means a course which—

(a)

is funded (in whole or in part) by, or under arrangements made by, the—

(i)

Secretary of State under section 14 of the Education Act 2002, or

(ii)

Chief Executive of Education and Skills Funding;

(b)

lasts for no more than 6 months;

(c)

includes training to help prepare the participant for work and a work experience placement, and

(d)

is open to persons who on the first day of the course have reached the age of 16 but not the age of 25;]

“training” means—

(a)

training in pursuance of arrangements made under section 2(1) of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990; or

(b)

any training received on a course which a person attends for 16 hours or more a week, the primary purpose of which is the teaching of occupational or vocational skills;

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—

(a)

out of public funds by a Government department or by or on behalf of the Secretary of State for Work and Pensions, [F134Skills Development Scotland,] Scottish Enterprise or Highlands and Islands Enterprise, the F135...F136... or the Welsh Ministers;

(b)

to a person for that person's maintenance or in respect of a member of that person's family; and

(c)

for the period, or part of the period, during which the person is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to that person or so provided or approved by or on behalf of the Secretary of State for Work and Pensions, [F134Skills Development Scotland,] Scottish Enterprise or Highlands and Islands Enterprise, or the Welsh Ministers,

but does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that that person is following a course of full-time education, other than under arrangements made under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990, or is training as a teacher;

[F137“universal credit” means universal credit under Part 1 of the 2012 Act;]

[F60“vaccine damage payment” means a payment made under the Vaccine Damage Payments Act 1979;]

[F138“the Victims of Overseas Terrorism Compensation Scheme” means the scheme of that name established by the Ministry of Justice in 2012 under section 47 of the Crime and Security Act 2010;]

“voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;

“war disablement pension” means any [F139retired 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 2003F140;

“war widow's pension” [F141means any pension or allowance] payable to a woman as a widow under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 in respect of the death or disablement of any person;

“war widower's pension” [F141means any pension or allowance] payable to a man as a widower or to a surviving civil partner under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 in respect of the death or disablement of any person;

“water charges” means—

(a)

as respects England and Wales, any water and sewerage charges under Chapter 1 of Part 5 of the Water Industry Act 1991F142;

(b)

as respects Scotland, any water and sewerage charges under Part 2 of the Local Government etc. (Scotland) Act 1994F143,

in so far as such charges are in respect of the dwelling which a person occupies as the home;

[F144“the We Love Manchester Emergency Fund” means the registered charity of that name (number 1173260) established on 30th May 2017;]

“week” means a period of 7 days except in relation to regulation 26;

[F30“Windrush payment” means a payment made under the Windrush Compensation Scheme (Expenditure) Act 2020;]

F145...

“working day” means any day except for a Saturday, Sunday, Christmas Day, Good Friday or bank holiday under the Banking and Financial Dealings Act 1971 F146 in England, Wales or Scotland;

“working tax credit” means a working tax credit under section 10 of the Tax Credits Act;

“young person” is a person who, except where section 6 of the Children (Leaving Care) Act 2000 F147 (exclusion from benefits) applies, falls within the definition of qualifying young person in section 142 of the Contributions and Benefits Act (child and qualifying young person).

(2) In F148... paragraph 15(2) of Schedule 6 (housing costs – linking rule)—

“child support maintenance” means such periodical payments as are referred to in section 3(6) of the Child Support Act 1991 F149 and includes any payments made by the Secretary of State in lieu of such payments;

“the 1991 Act” means the Child Support Act 1991;

“the 2000 Act” means the Child Support, Pensions and Social Security Act 2000 F150;

“maintenance assessment” has the same meaning as in the 1991 Act by virtue of section 54 of that Act as it has effect apart from the 2000 Act;

“maintenance calculation” has the same meaning as in the 1991 Act by virtue of section 54 of that Act as amended by the 2000 Act.

(3) Any reference to the claimant's family is to be construed as if it included in relation to a polygamous marriage a reference to any partner and any child or young person who is a member of the claimant's household.

(4) For the purposes of paragraph 5 of Schedule 1 to the Act, “week” means a period of 7 days.

[F151(5) For the purposes of paragraph 4 of Schedule 1 to the Act (condition relating to youth) “period of limited capability for work” means a period throughout which a person has, or is treated as having, limited capability for work.]

[F152(6) Subject to paragraph (7), for the purposes of section 24(3A)(b) of the Act, a lone parent is to be treated as responsible for, and a member of the same household as, a person under the age of 16 only where the circumstances set out in regulation 156 apply.

(7) For the purposes of sections 12 and 13 of the Act, and regulations made under those sections, a lone parent is to be treated as responsible for, and a member of the same household as a child only where the lone parent would be treated as responsible for and a member of the same household as such a child under regulations 15 and 16 of the Income Support (General) Regulations 1987, if references in those Regulations to income support were to employment and support allowance.]

[F153(8) References in these Regulations to a person or claimant participating as a service user are to—

(a)a person who is being consulted by or on behalf of—

(i)a body which has a statutory duty to provide services in the field of health, social care or social housing; or

(ii)a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in their capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services; or

[F154(ab)a person who is being consulted by or on behalf of—

(i)the Secretary of State in relation to any of the Secretary of State’s functions in the field of social security or child support or under section 2 of the Employment and Training Act 1973; or

(ii)a body which conducts research or undertakes monitoring for the purpose of planning or improving such functions,

in their capacity as a person affected or potentially affected by the exercise of those functions or the carer of such a person;]

(b)the carer of a person consulted under [F155sub-paragraphs (a) or (ab)].]

Textual Amendments

F151996 c. 18. Sections 75A and 75B were inserted by section 3 of the Employment Act 2002 (c. 22).

F21S.I. 1983/686. Article 14 was substituted by S.I. 2001/420, article 15 was amended by S.I. 2001/420 and article 16 was amended by S.I. 1984/1675 and S.I. 2001/420.

F23Words in reg. 2(1) substituted (coming into force in accordance with art. 1(2)(b) of the amending S.I.) by The Pensions Act 2014 (Consequential, Supplementary and Incidental Amendments) Order 2015 (S.I. 2015/1985), arts. 1(2)(b), 31(2)

F341992 c. 4. Section 171(1) was amended by the Still-Birth (Definition) Act 1992 (c. 29), sections 2(1) and 4(2).

F391972 c. 70. Section 173 was amended by the Local Government, Planning and Land Act 1980 (c. 65), section 24(1) and by the Local Government and Housing Act 1989(c. 42), section 194 and Schedule 11, paragraph 26 and S.I. 1977/1710, article 3(c). Section 177(1A) was inserted by the School Standards and Framework Act 1998 (c. 31), section 140(1) and Schedule 30, paragraph 3(3) and amended by the Education and Inspections Act 2006 (c. 40), sections 30 and 184 and Schedule 3, paragraph 1 and Schedule 18, Part 3. Section 177(2) was substituted by, and section 177(4) was amended by the Local Government and Housing Act 1989 (c. 42), section 194 and Schedule 11, paragraph 28(3) and (4), respectively.

F401989 c. 42. Section 18(1) was amended by the Local Government Act 2000 (c. 22) (“the 2000 Act”), section 99(3) and (4). Section 18(1A) was inserted by the 2000 Act, section 99(3) and (4). Section 18(2A) was inserted by the 2000 Act, section 99(3) and (5). Section 18(3) was amended by the 2000 Act, section 99(3) and (6). Section 18(3A) to (3G) were inserted by the 2000 Act, section 99(3) and (7). Section 18(4) was amended by the 2000 Act, section 99(3) and (8). Section 18(5) was amended by the Police and Magistrates' Courts Act 1994 (c. 29), section 43 and Schedule 4, Part 1, paragraph 37 and the Education Act 1996 (c. 56), section 582(1) and Schedule 37, paragraph 97 and the 2000 Act, section 99(3) and (9).

F422004 asp. 9.

F50Words in reg. 2(1) substituted (for specified purposes and with effect in accordance with reg. 1(2) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2009 (S.I. 2009/2655), regs. 1(2)(d), 11(2)(a)

F571999 c. 8. Section 60(1) was amended by the National Health Service Reform and Health Care Professions Act 2002 (c. 17), section 26(9). Section 60(2) was amended by S.I. 2002/253, article 54(3) and Schedule 5, paragraph 16(a) and S.I. 2002/254, article 48(3) and Schedule 4, paragraph 8(a).

F851993 c. 48. Section 1(1) was amended by the Pensions Act 2004 (c. 35), section 239(1) and (3), S.I. 1999/1820, article 4 and Schedule 2, Part 1, paragraph 113(a) and (b) and S.I. 2007/3014, regulation 2(b) and paragraph 1(a) of the Schedule.

F931993 c. 48. Section 1(1) has been amended by the Pensions Act 2004 (c. 35), section 239(1), (2) and (3), S.I. 1999/1820, article 4 and Schedule 2, Part 1, paragraph 113(a) and (b) and S.I. 2007/3014, regulation 2(b) and paragraph 1(a) of the Schedule. Section 1(2) to (6) was inserted by the Pensions Act 2004 (c. 35), section 239(1) and (4).

F941988 c. 1. Sections 620, 621 and 622 were repealed by the Finance Act 2004 (c. 12), section 326 and Schedule 42, Part 3.

F96Words in reg. 2(1) inserted (for specified purposes and with effect in accordance with reg. 1(2) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2009 (S.I. 2009/2655), regs. 1(2)(d), 11(2)(b)

F1241973 c. 50. Section 2 was substituted by the Employment Act 1988 (c. 19), section 25(1). Sections 2(3A) and (3B) were inserted by the Trade Union Reform and Employment Rights Act 1993 (c. 19) section 47(1) and apply to Scotland only.

F1251990 c. 35. Section 2(3) was amended by the Trade Union Reform and Employment Rights Act 1993, sections 47(2) and (4)(a) and 51 and Schedule 10. Section 2(4) was amended by the Trade Union Reform and Employment Rights Act 1993, section 47(2) and (4)(b). Section 2(6) was repealed by S.I. 1999/1820.

F1291993 c. 39. Section 23(2) was amended by S.I. 1996/3095, article 2 and S.I. 1999/1563, article 2(1) and (6). There are other amending instruments but none is relevant.

F1491991 c. 48. Section 3(6) was amended by the Child Support, Pensions and Social Security Act (c. 19), section 1(2)(a).

[F156Disapplication of section 1(1A) of the Social Security Administration Act 1992E+W+S

2A.  Section 1(1A) of the Social Security Administration Act 1992 (requirement to state a national insurance number) shall not apply to a person who—

(a)is a person in respect of whom a claim for employment and support allowance is made;

(b)is subject to immigration control within the meaning of section 115(9)(a) of the Immigration and Asylum Act;

(c)does not satisfy the basic conditions of entitlement to employment and support allowance for the purposes of section 1(3) of the Act; and

(d)has not previously been allocated a national insurance number.]

Textual Amendments

Rounding of fractionsE+W+S

3.  For the purposes of these Regulations—

(a)where any calculation under these Regulations results in a fraction of a penny that fraction is, if it would be to the claimant's advantage, to be treated as a penny, otherwise it must be disregarded;

(b)where an employment and support allowance is awarded for a period which is not a complete benefit week and the applicable amount in respect of the period results in an amount which includes a fraction of a penny that fraction is to be treated as a penny.

PART 2E+W+STHE ASSESSMENT PHASE

The end of the assessment phaseE+W+S

4.—(1) Subject to [F157paragraphs (2) and (3)] and [F158regulation 5], the assessment phase in relation to a claimant ends on the last day of [F159the relevant period].

[F160(2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.]

[F160(3) This paragraph applies where, at the end of [F161the relevant period]—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b)the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).]

[F162(4) In this regulation, “the relevant period” means the period of 13 weeks beginning with—

(a)the first day of the assessment phase as determined under section 24(2)(a) of the Act; or

(b)where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.

(5) In paragraph (4), “extended period of sickness” means a period in which the claimant was—

(a)entitled to a jobseeker’s allowance; and

(b)treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013 (extended period of sickness).]

Textual Amendments

The assessment phase – previous claimantsE+W+S

5.—(1) Where the circumstances in paragraph (2) apply in relation to a claimant the assessment phase —

(a)begins on the first day of the period for which the claimant was previously entitled to an employment and support allowance; and

(b)subject to [F163paragraphs (3), (3A) and (4)], ends on the day when the sum of the period for which the claimant was previously entitled to an employment and support allowance and the period for which the claimant is currently entitled to such an allowance is 13 weeks.

[F164(1A) For the purposes of paragraph (1), any period when the claimant was—

(a)entitled to a jobseeker’s allowance; and

(b)treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013,

is to be treated as a period when the claimant was previously entitled to an employment and support allowance.]

(2) The circumstances are that—

(a)(i)the claimant's current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) F165...;

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work; F166...

(iii)the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; [F167and]

[F168(iv)the period for which the claimant was previously entitled was no more than 13 weeks; or]

[F169(b)(i)the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1),

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii)the previous period of limited capability for work was terminated by virtue of a determination that the claimant did not have limited capability for work,

(iv)the period for which the claimant was previously entitled was no more than 13 weeks, and

(v)a determination is made in relation to the current period of limited capability for work that the claimant has or is treated as having limited capability for work, other than under regulation 30; or]

[F169(c)(i)the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1),

(ii)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii)in relation to the previous award of an employment and support allowance, a determination was made that the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv)the period for which the claimant was previously entitled was no more than 13 weeks.]

[F170(3) Where paragraph (3A) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.]

[F170(3A) This paragraph applies where on the day referred to in paragraph (1)(b)—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b)the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).]

[F171(4) Where a person has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work—

(a)[F172paragraphs (3) and (3A) do] not apply; and

(b)paragraph (1) does not apply to any period of limited capability for work to which regulation 147A(2) applies until a determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal.]

Textual Amendments

The assessment phase – claimants appealing against a decisionE+W+S

F1736.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Circumstances where the condition that the assessment phase has ended before entitlement to the support component [F174or the work-related activity component] arises does not applyE+W+S

7.—(1) Subject to paragraph (2), [F175sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a)] [F175sections 2(2)(a) and 4(4)(a)] of the Act do not apply where—

(a)a claimant is terminally ill and has either—

(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 F176 which contains an express statement that the claimant is terminally ill; F177...

[F178(b)the case is a relevant linked case;]

[F179(c)(i)the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support coming to an end;

(ii)in relation to that entitlement to income support, immediately before it ended the claimant’s applicable amount included the disability premium by virtue of satisfying the conditions in paragraphs 11 and 12 of Schedule 2 to the Income Support Regulations; and

(iii)that entitlement to income support ended solely by virtue of the coming into force, in relation to the claimant, of the Social Security (Lone Parents and Miscellaneous Amendments) Regulations [F1802012]][F181; or]

[F181(d)a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).]

[F182(1A) For the purposes of paragraph (1)(b) a relevant linked case is a case mentioned in paragraph (1B) where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1).

(1B) Paragraph (1A) applies to the following cases—

(a)case 1 is where–

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under [F183sections 2(2), 2(3), 4(4) or 4(5)] [F1832(2) or 4(4)] of the Act [F184or the claimant was a member of the work-related activity group]) in the earlier period of limited capability for work, and

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by virtue of a determination that the claimant did not have limited capability for work;

(b)case 2 is where–

(i)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of a determination that the claimant did not have, or was treated as not having, limited capability for work, and

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30;

(c)case 3 is where–

(i)the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated before it could be determined whether the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30; and

(d)case 4 is where–

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under [F185sections 2(2), 2(3), 4(4) or 4(5)] [F1852(2) or 4(4)] of the Act [F186or the claimant was a member of the work-related activity group]) in the earlier period of limited capability for work,

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated because it was determined that the claimant did not have limited capability for work or was treated as not having limited capability for work, and

(iii)it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30.]

(2) Paragraph (1)(b) does not apply [F187to any period of limited capability for work to which regulation 147A(2) applies until the determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal].

Textual Amendments

PART 3E+W+SCONDITIONS OF ENTITLEMENT – CONTRIBUTORY ALLOWANCE

[F188Conditions relating to national insurance and relevant earningsE+W+S

7A.—(1) A claimant’s relevant earnings for the purposes of paragraph 1(2)(a) of Schedule 1 to the Act (employment and support allowance: conditions relating to national insurance) are the total amount of the claimant’s earnings at the lower earnings limit for the base tax year.

(2) For the purposes of paragraph (1), earnings which exceed the lower earnings limit are to be disregarded.]

Textual Amendments

Relaxation of the first contribution conditionE+W+S

8.—(1) A claimant who satisfies any of the conditions in paragraph (2) is to be taken to satisfy the first contribution condition if—

(a)the claimant paid Class 1 or Class 2 contributions before the relevant benefit week in respect of any one tax year; and

[F189(b)the claimant has—

(i)earnings at the lower earnings limit in that tax year on which primary Class 1 contributions have been paid or treated as paid which in total, and disregarding any earnings which exceed the lower earnings limit for that year, are not less than that limit multiplied by 26; or

(ii)earnings factors in that tax year derived from Class 2 contributions multiplied by 26.]

(2) The conditions referred to in paragraph (1) are that the claimant—

(a)was entitled to a carer's allowance [F190or carer support payment] in the last complete tax year immediately preceding the relevant benefit year;

(b)had been engaged in qualifying remunerative work for a period of more than 2 years immediately before the first day of the period of limited capability for work and who was entitled to working tax credit where the disability element or the severe disability element of working tax credit specified in regulation 20(1)(b) or (f) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 F191 was included in the award;

(c)in respect of any week in any tax year preceding the relevant benefit year—

(i)is entitled to be credited with earnings or contributions in accordance with regulation 9D of the Social Security (Credits) Regulations 1975 F192 (credits for certain periods of imprisonment or detention in legal custody); or

(ii)would have been so entitled had an application to the Secretary of State been made for the purpose of that regulation; [F193or]

[F194(ca)in respect of any week in the last complete tax year preceding the relevant benefit year, is entitled to be credited with earnings in accordance with regulation 9E of the Social Security (Credits) Regulations 1975 (credits for certain spouses and civil partners of members of Her Majesty’s forces); F195...]

F196(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F192S.I. 1975/556. Regulation 9D was inserted by S.I.2001/573, regulation 2.

Condition relating to youth – claimants aged 20 or over but under 25E+W+S

9.—(1) For the purposes of paragraph 4(1)(a) of Schedule 1 to the Act, a claimant who satisfies the conditions specified in paragraph (2) falls within a prescribed case.

(2) The conditions are that the claimant—

(a)registered on a course of—

(i)full-time advanced or secondary education; or

(ii)training,

at least 3 months before attaining the age of 20; and

(b)not more than one academic term immediately after registration attended one or more such courses in respect of a period referred to in paragraph (3).

(3) The period mentioned in sub-paragraph (2)(b) is a period which—

(a)began on or before a day at least 3 months before the day the claimant attained the age of 20; and

(b)ended no earlier than the beginning of the last two complete tax years before the relevant benefit year which would have applied if the claimant was entitled to an employment and support allowance having satisfied the first contribution condition and the second contribution condition.

(4) For the purposes of this regulation a claimant is to be treated as attending a course on any day on which the course is interrupted by an illness or domestic emergency.

(5) In this regulation—

“advanced education” means education for the purposes of—

(a)

a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business and [F197Technology] Education Council or the Scottish Qualifications Authority, or a teaching qualification; or

(b)

any other course which is of a standard above ordinary national diploma, a diploma of the Business and [F198Technology] Education Council or a higher or advanced higher national certificate of the Scottish Qualifications Authority or a general certificate of education (advanced level);

“full-time” includes part-time where the person's disability prevents attendance at a full-time course;

“secondary education” means a course of education below a course of advanced education—

(a)

by attendance at an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school; or

(b)

elsewhere where the Secretary of State is satisfied that the education is equivalent to that given in an establishment recognised as being, or as comparable to, a university, college or school.

[F199(6) A claimant is to be treated as not having limited capability for work on a day which is not, for the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act (period of 196 consecutive days preceding the relevant period of limited capability for work), part of any consecutive days of limited capability for work.]

Textual Amendments

Condition relating to youth – previous claimantsE+W+S

10.—(1) Paragraph 4(1)(a) of Schedule 1 to the Act does not apply to a claimant—

(a)who has previously ceased to be entitled to an employment and support allowance, entitlement for which was as a result of satisfying the condition set out in sub-paragraph (1) of that paragraph;

(b)whose previous entitlement had not been ended by a decision which embodied a determination (other than a determination in the circumstances applicable to a claimant under paragraph (2)(a)) that the claimant did not have limited capability for work;

(c)in relation to whom regulation 145 (linking rules) does not apply;

(d)aged 20 or over, or, where regulation 9 would otherwise apply to the person, aged 25 or over; and

(e)to whom paragraph (2) applies.

(2) This paragraph applies to a claimant—

(a)whose previous entitlement to an employment and support allowance ended solely with a view to that person taking up employment or training;

(b)whose earnings factor from an employment or series of employments pursued in the period from the end of the previous entitlement to the beginning of the period of limited capability for work, was below the lower earnings limit multiplied by 25 in any of the last three complete tax years before the beginning of the relevant benefit year; and

(c)who—

(i)in respect of the last two complete tax years before the beginning of the relevant benefit year has either paid or been credited with earnings equivalent in each of those years to the year's lower earnings limit multiplied by 50, of which at least one, in the last tax year, was in respect of the disability element or severe disability element of working tax credit; or

(ii)makes a claim for an employment and support allowance within a period of 12 weeks after the day on which the last such employment pursued in accordance with sub-paragraph (b) ceased.

Condition relating to youth – residence or presenceE+W+S

11.—(1) The prescribed conditions for the purposes of paragraph 4(1)(c) of Schedule 1 to the Act as to residence or presence in Great Britain are that the claimant—

(a)is ordinarily resident in Great Britain;

(b)is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act or is a person to whom paragraph (3) applies;

(c)is present in Great Britain; and

(d)has been present in Great Britain for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the 52 weeks immediately preceding the relevant benefit week.

(2) For the purposes of paragraph (1), a claimant is to be treated as being resident and present in Great Britain where the claimant is absent from Great Britain by reason only of being—

(a)the spouse, civil partner, son, daughter, father, father-in-law, mother or mother-in-law of, and living with, a member of Her Majesty's forces who is abroad in that capacity;

(b)in employment prescribed for the purposes of paragraph 7(1)(c) of Schedule 2 to the Act in connection with continental shelf operations; or

(c)abroad in the capacity of being an aircraft worker or mariner.

(3) This paragraph applies where a person is—

(a)a member of a family of a national of an European Economic Area state;

(b)a person who is lawfully working in Great Britain and is a national of a State with which the Community has concluded an agreement under [F200Article 217 of the Treaty on the Functioning of the European Union] providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families;

(c)a person who is a member of a family of, and living with, a person specified in sub-paragraph (b); or

(d)a person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971 F201 to be responsible for that person's maintenance and accommodation.

(4) A person is to be treated as having satisfied the residence or presence conditions in paragraph (1) throughout a period of limited capability for work where those conditions are satisfied on the first day of that period of limited capability for work.

Textual Amendments

Condition relating to youth – full-time educationE+W+S

12.—(1) For the purposes of paragraph 4(4) of Schedule 1 to the Act, a claimant is to be treated as receiving full-time education for any period during which the claimant—

(a)is at least 16 years old but under the age of 19; and

(b)attends a course of education for 21 hours or more a week.

(2) For the purposes of paragraph (1)(b), in calculating the number of hours a week during which a claimant attends a course, no account is to be taken of any instruction or tuition which is not suitable for persons of the same age who do not have a disability.

(3) In determining the duration of a period of full-time education under paragraph (1) any temporary interruption of that education may be disregarded.

(4) A claimant who is 19 years of age or over is not to be treated for the purposes of paragraph 4(1)(b) of Schedule 1 to the Act as receiving full-time education.

Modification of the relevant benefit yearE+W+S

[F20213.—(1) Where paragraph (2) applies, sub-paragraph (1)(f) of paragraph 3 of Schedule 1 to the Act has effect as if “relevant benefit year” is any benefit year which includes all or part of the period of limited capability for work which includes the relevant benefit week.

(2) This paragraph applies where a claimant has made a claim to employment and support allowance but does not satisfy—

(a)the first contribution condition;

(b)the second contribution condition; or

(c)both contribution conditions,

but would satisfy those conditions if the modified definition of “relevant benefit year” provided in paragraph (1) applied.]

Textual Amendments

PART 4E+W+SCONDITIONS OF ENTITLEMENT – INCOME-RELATED ALLOWANCE

Meaning of educationE+W+S

14.—(1) Subject to regulations 15 and 16, for the purposes of paragraph 6 of Schedule 1 to the Act, “education” means a course of study to which paragraph (2) applies which is being undertaken at an educational establishment.

(2) This paragraph applies to a course of study which is—

(a)a full-time course which is not funded in whole or in part by—

[F203(i)the [F204Secretary of State under section 14 of the Education Act 2002] [F205or section 100 of the Apprenticeships, Skills, Children and Learning Act 2009];]

F206(ia). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii)the Welsh Ministers; or

(iii)the Scottish Ministers at a college of further education;

(b)a full-time course of higher education which is funded in whole or in part by the Scottish Ministers;

(c)funded in whole or in part by the [F207Secretary of State under section 14 of the Education Act 2002] [F208or section 100 of the Apprenticeships, Skills, Children and Learning Act 2009] or by the Welsh Ministers if it involves more than 16 guided learning hours per week for the student in question, according to the number of guided learning hours per week for that student set out––

[F209(i)in the case of a course funded by the [F207Secretary of State] F210..., in the student’s learning agreement signed on behalf of the establishment which is funded by [F211the Secretary of State] for the delivery of that course;]

(ii)in the case of a course funded by the Welsh Ministers, in a document signed on behalf of the establishment which is funded by those Ministers for the delivery of that course;

(d)not a course of higher education and which is funded in whole or in part by the Scottish Ministers at a college of further education and involves—

(i)more than 16 hours per week of classroom-based or workshop-based programmed learning under the direct guidance of teaching staff according to the number of hours set out in a document signed on behalf of the college; or

(ii)16 hours or less per week of classroom-based or workshop-based programmed learning under the direct guidance of teaching staff and it involves additional hours using structured learning packages supported by the teaching staff where the combined total of hours exceeds 21 per week according to the number of hours set out in a document signed on behalf of the college; or

(e)a sandwich course within the meaning prescribed in regulation 2(9) of the Education (Student Support) Regulations 2007F212, regulation 4(2) of the Education (Student Loans) (Scotland) Regulations 2007 F213or regulation 2(8) of the Education (Student Support) Regulations (Northern Ireland) 2007F214.

[F215(2A) Paragraph (2) does not apply to any course of study which the claimant is required to attend for the purpose of meeting a requirement to undertake work-related activity.]

[F216(2B) Paragraph (2) does not apply to a traineeship.]

(3) In this regulation “higher education” means higher education within the meaning of Part 2 of the Further and Higher Education (Scotland) Act 1992 F217.

Textual Amendments

Claimants to be treated as receiving educationE+W+S

15.—[F218(1)] Subject to regulation 18 [F219and paragraph (2)], a qualifying young person is to be treated as receiving education for the purposes of paragraph 6(1)(g) of Schedule 1 to the Act.

[F220(2) A qualifying young person is not to be treated as receiving education if they are participating in a traineeship.]

Textual Amendments

Claimants not to be treated as receiving educationE+W+S

16.  Where a claimant is under 19 but not a qualifying young person, that claimant is not to be treated as receiving education where the course of study is not—

(a)a course leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education or a higher national diploma; or

(b)any other course which is of a standard above advanced GNVQ or equivalent, including a course which is of a standard above a general certificate of education (advanced level) or above a Scottish national qualification (higher or advanced higher).

Courses of studyE+W+S

17.—(1) For the purposes of the definition of “education” in regulation 14, a person is to be regarded as undertaking a course of study—

(a)subject to paragraph (2), in the case of a person undertaking a part of a modular course that would be a course of study for the purposes of these Regulations, for the period beginning on the day on which that part of the course starts and ending—

(i)on the last day on which the person is registered with the educational establishment as attending or undertaking that part as a full-time course of study; or

(ii)on such earlier date (if any) as the person finally abandons the course or is dismissed from it;

(b)in any other case, throughout the period beginning on the date on which the person starts undertaking the course and ending on the last day of the course or on such earlier date (if any) as the person finally abandons it or is dismissed from it.

(2) For the purpose of sub-paragraph (a) of paragraph (1), the period referred to in that sub-paragraph includes—

(a)where a person has failed examinations or has failed to successfully complete a module relating to a period when the person was attending or undertaking a part of the course as a course of study, any period in respect of which the person attends or undertakes the course for the purpose of retaking those examinations or that module;

(b)any period of vacation within the period specified in that paragraph or immediately following that period except where the person has registered with the educational establishment to attend or undertake the final module in the course and the vacation immediately follows the last day on which the person is required to attend or undertake the course.

(3) In paragraph (1), “modular course” means a course of study which consists of two or more modules, the successful completion of a specified number of which is required before a person is considered by the educational establishment to have completed the course.

Circumstances in which the condition that the claimant is not receiving education does not applyE+W+S

18.  Paragraph 6(1)(g) of Schedule 1 to the Act does not apply where the claimant is entitled to a disability living allowance[F221, child disability payment][F222, armed forces independence payment] [F223[F224, ]personal independence payment [F225or adult disability payment]].

Textual Amendments

PART 5E+W+SLIMITED CAPABILITY FOR WORK

Determination of limited capability for workE+W+S

19.—(1) For the purposes of Part 1 of the Act, whether a claimant's capability for work is limited by the claimant's physical or mental condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason of such disease or bodily or mental disablement of performing those activities.

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the points listed in column (3) of Schedule 2 against [F226each descriptor] listed in that Schedule [F227which applies in the claimant’s case], the claimant obtains a total score of at least—

(a)15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;

(b)15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or

(c)15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.

[F228(4) In assessing the extent of a claimant’s capability to perform any activity listed in Part 1 of Schedule 2, the claimant is to be assessed as if—

(a)fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

(b)wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.]

[F229(5) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 2, it is a condition that the claimant’s incapability to perform the activity arises—

(a)in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b)in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or

(c)in respect of any descriptor or descriptors listed in—

(i)Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; [F230or]

(ii)Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.]

(6) Where more than one descriptor specified for an activity [F231applies] to a claimant, only the descriptor with the highest score in respect of each activity which applies is to be counted.

(7) Where a claimant—

(a)has been determined to have limited capability for work; or

(b)is to be treated as having limited capability for work under regulations 20, 25, 26, 29 or 33(2),

the Secretary of State may, if paragraph (8) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work.

(8) This paragraph applies where—

(a)the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant's physical or mental condition;

(b)the Secretary of State wishes to determine whether the previous determination of limited capability for work or that the claimant is to be treated as having limited capability for work, was made in ignorance of , or was based on a mistake as to, some material fact; or

(c)at least 3 months have passed since the date on which the claimant was determined to have limited capability for work or to be treated as having limited capability for work.

Textual Amendments

Certain claimants to be treated as having limited capability for workE+W+S

20.—[F232(1)] A claimant is to be treated as having limited capability for work if—

(a)the claimant is terminally ill;

[F233(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; 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.]

(c)the claimant is—

(i)excluded or abstains from workF234... pursuant to a request or notice in writing lawfully made [F235or given] under an enactment; or

(ii)otherwise prevented from working pursuant to an enactment,

[F236by reason of it being known or reasonably suspected that the claimant is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination];

(d)in the case of a pregnant woman, 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;

(e)in the case of a pregnant woman, she—

(i)is within the maternity allowance period [F237(which has the meaning it has in F238... the Contributions and Benefits Act)]; and

(ii)is entitled to a maternity allowance under section 35(1) [F239or 35B(1)] of the Contributions and Benefits Act F240;

(f)in the case of a pregnant woman whose expected or actual date of confinement has been certified in accordance with the Medical Evidence Regulations, on any day in the period—

(i)beginning with the first date of the 6th week before the expected week of her confinement or the actual date of her confinement, whichever is earlier; and

(ii)ending on the 14th day after the actual date of her confinement,

if she would have no entitlement to a maternity allowance or statutory maternity pay were she to make a claim in respect of that period.

[F241(g)[F242the claimant meets] any of the descriptors at paragraph 15 or 16 of Schedule 3 [F243in accordance with regulation 34(2), (3) and (6) where applicable].]

[F244(2) In this regulation, “relevant infection or contamination” means—

(a)in England and Wales—

(i)any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control of Disease) Act 1984 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing, protecting against, controlling or providing a public health response to, such incidence or spread; or

(ii)tuberculosis or any infectious disease to which regulation 9 of the Public Health (Aircraft) Regulations 1979 (powers in respect of persons leaving aircraft) applies or to which regulation 10 of the Public Health (Ships) Regulations 1979 (powers in respect of certain persons on ships) applies; and

(b)in Scotland, any—

(i)infectious disease within the meaning of section 1(5) of the Public Health etc (Scotland) Act 2008, or exposure to an organism causing that disease; or

(ii)contamination within the meaning of section 1(5) of that Act, or exposure to a contaminant,

to which sections 56 to 58 of that Act (compensation) apply.]

Textual Amendments

Information required for determining capability for workE+W+S

21.—(1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant has limited capability for work is—

(a)evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of F245... statement or other evidence required in each case);

(b)any information relating to a claimant's capability to perform the activities referred to in Schedule 2 as may be requested in the form of a questionnaire; and

(c)any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work without the information specified in paragraph (1)(b), that information [F246must] not be required for the purposes of making the determination.

(3) Paragraph (1) does not apply in relation to a determination whether a claimant is to be treated as having limited capability for work under any of regulations 20 (certain claimants to be treated as having limited capability for work), 25 (hospital in-patients), 26 (claimants receiving certain regular treatment) and 33(2) (additional circumstances in which a claimant is to be treated as having limited capability for work).

Textual Amendments

Failure to provide information in relation to limited capability for workE+W+S

22.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 21(1)(b), that claimant is, subject to paragraph (2), to be treated as not having limited capability for work.

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

[F247(a)the claimant was sent a further request at least three weeks after the date of the first request;]

(b)F248... at least [F2491 week has] passed since the further request was sent.

Textual Amendments

Claimant may be called for a medical examination to determine whether the claimant has limited capability for workE+W+S

23.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination [F250in person, by telephone or by video].

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination [F251mentioned] in paragraph (1), the claimant is to be treated as not having limited capability for work.

[F252(3) Paragraph (2) does not apply unless—

(a)written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b)that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.]

Textual Amendments

Matters to be taken into account in determining good cause in relation to regulations 22 or 23E+W+S

24.  The matters to be taken into account in determining whether a claimant has good cause under regulations 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work) include—

(a)whether the claimant was outside Great Britain at the relevant time;

(b)the claimant's state of health at the relevant time; and

(c)the nature of any disability the claimant has.

Hospital in-patientsE+W+S

[F25325.—(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical or other treatment as a patient in a hospital or similar institution, or on any day which is a day of recovery from that treatment.

(2) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.

(3) For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar institution only if that claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer.

(4) For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.]

Textual Amendments

Claimants receiving certain regular treatmentE+W+S

26.—(1) Subject to paragraph (2), a claimant receiving—

(a)regular weekly treatment by way of haemodialysis for chronic renal failure;

(b)treatment by way of plasmapheresis F254...; or

(c)regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function,

is to be treated as having limited capability for work during any week in which that claimant is engaged in [F255receiving] that treatment or has a day of recovery from that treatment.

[F256(2) A claimant who receives the treatment referred to in paragraph (1) is only to be treated as having limited capability for work from the first week of treatment in which the claimant undergoes no fewer than—

(a)two days of treatment;

(b)two days of recovery from any of the forms of treatment listed in paragraph 1(a) to (c); or

(c)one day of treatment and one day of recovery from that treatment,

but the days of treatment or recovery from that treatment or both need not be consecutive.]

(3) For the purpose of this regulation “day of recovery” means a day on which a claimant is recovering from any of the forms of treatment listed in paragraph (1)(a) to (c) and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.

Textual Amendments

Claimant to be treated as having limited capability for work throughout a dayE+W+S

27.  A claimant who at the commencement of any day has, or thereafter develops, limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work throughout that day.

Night workersE+W+S

28.—(1) Where a claimant works for a continuous period which extends over midnight into the following day, that claimant is to be treated as having limited capability for work on the day on which the lesser part of that period falls if that claimant had limited capability for work for the remainder of that day.

(2) Where, in relation to a period referred to in paragraph (1), the number of hours worked before and after midnight is equal—

(a)if the days in question fall at the beginning of a period of limited capability for work, the claimant is to be treated as having limited capability on the second day; and

(b)if the days in question fall at the end of a period of limited capability for work, the claimant is to be treated as having limited capability for work on the first day.

Exceptional circumstancesE+W+S

29.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.

(2) [F257Subject to paragraph (3)] this paragraph applies if—

(a)the claimant is suffering from a life threatening disease in relation to which—

(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and

(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic procedure; or

(b)the claimant suffers from some specific disease or bodily or mental disablement and, by reasons 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.

[F258(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a)reasonable adjustments being made in the claimant’s workplace; or

(b)the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.]

[F259(4) In this regulation “medical evidence” means—

(a)evidence from a health care professional approved by the Secretary of State; and

(b)evidence (if any) from any health care professional or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances.]

Textual Amendments

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been madeE+W+S

30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until such time as it is determined—

(a)whether or not the claimant has limited capability for work;

(b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this regulation; or

(c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 22 (failure to provide information in relation to limited capability for work) or 23 (failure to attend a medical examination to determine limited capability for work).

(2) The conditions are—

(a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and

[F260(b)in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined—

(i)in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work; or

(ii)within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23,

unless paragraph (4) applies;]

F261(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F262(3) Paragraph 2(b) does not apply where a claimant has made and is pursuing an appeal against a relevant decision of the Secretary of State, and that appeal has not yet been determined by the First-tier Tribunal.]

[F263(4) This paragraph applies where—

(a)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(b)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or

(c)in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.]

[F264(5) In this regulation a “relevant decision” means—

(a)a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work; or

(b)a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work since a previous determination by the Secretary of State or appellate authority that the claimant does have limited capability for work.

(6) In this regulation, “appellate authority” means the First-tier Tribunal, the Upper Tribunal, the Court of Appeal, the Court of Session, or the Supreme Court.]

Textual Amendments

F260Reg. 30(2)(b) substituted (with application in accordance with reg. 2 of the amending S.I.) by The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (S.I. 2015/437), regs. 1, 3(2)(a)

Claimant who claims jobseeker's allowance to be treated as not having limited capability for workE+W+S

F26531.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Certain claimants to be treated as not having limited capability for workE+W+S

32.—[F266(1)] A claimant [F267who is or has been a member of Her Majesty’s forces] is to be treated as not having limited capability for work on any day which is recorded by the Secretary of State F268... as a day of sickness absence from duty.

[F269(2) A claimant is to be treated as not having limited capability for work on any day on which the claimant attends a training course in respect of which the claimant is paid a training allowance or premium pursuant to arrangements made under section 2 of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990.

(3) Paragraph (2) is not to apply—

(a)for the purposes of any claim to employment and support allowance for a period commencing after the claimant ceased attending the training course in question; or

(b)where any training allowance or premium paid to the claimant is paid for the sole purpose of travelling or meal expenses incurred or to be incurred under the arrangement made under section 2 of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990.]

Textual Amendments

[F270Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidenceE+W+S

32A.—[F271(1)] Where the Secretary of State is satisfied that it is appropriate in the circumstances of the case F272... a claimant may be treated as not having limited capability for work if—

(a)the claimant has supplied medical evidence F273...;

(b)the period for which medical evidence was supplied has ended;

(c)the Secretary of State has requested further medical evidence; and

(d)the claimant has not, before whichever is the later of either the end of the period of 6 weeks beginning with the date of the Secretary of State’s request or the end of 6 weeks beginning with the day after the end of the period for which medical evidence was supplied—

(i)supplied further medical evidence, or

(ii)otherwise made contact with the Secretary of State to indicate that they wish to have the question of limited capability for work determined.]

[F274(2) In this regulation “medical evidence” means evidence provided under regulation 2 or 5 of the Medical Evidence Regulations.]

Textual Amendments

Additional circumstances where claimants are to be treated as having limited capability for workE+W+S

33.—(1) For the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act, a claimant is to be treated as having limited capability for work on any day in respect of which that claimant is entitled to statutory sick pay.

(2) For the purposes of an income-related allowance, a claimant is to be treated as having limited capability for work where—

(a)that claimant is not a qualifying young person;

(b)that claimant is receiving education; and

(c)paragraph 6(1)(g) of Schedule 1 to the Act does not apply in accordance with regulation 18.

PART 6E+W+SLIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

Determination of limited capability for work-related activityE+W+S

34.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant's physical or mental condition, at least one of the descriptors set out in Schedule 3 applies to the claimant, the [F275claimant has limited] capability for work-related activity F276... and the limitation [F277must] be such that it is not reasonable to require that claimant to undertake such activity.

(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described by that descriptor.

[F278(3) In determining whether a descriptor applies to the claimant, the claimant is to be assessed as if—

(a)the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

(b)wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.]

F279(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where a determination has been made about whether a claimant—

(a)has limited capability for work-related activity;

(b)is to be treated as having limited capability for work-related activity; or

(c)is to be treated as not having limited capability for work-related activity,

the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having limited capability for work-related activity.

(5) This paragraph applies where—

(a)the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant's physical or mental condition;

(b)the Secretary of State wishes to determine whether the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity, was made in ignorance of, or was based on a mistake as to, some material fact; or

(c)at least 3 months have passed since the date of the previous determination about limited capability for work-related activity or about treating the claimant as having or as not having limited capability for work-related activity.

[F280(6) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 3, it is a condition that the claimant’s incapability to perform the action arises—

(a)in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—

(i)from a specific bodily disease or disablement; or

(ii)as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(b)in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—

(i)from a specific mental illness or disablement; or

(ii)as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.]

Textual Amendments

Certain claimants to be treated as having limited capability for work-related activityE+W+S

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

(a)the claimant is terminally ill;

[F281(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; or]

(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.

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 34(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 reasons 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.

Textual Amendments

[F282Relevant linked cases – limited capability for work-related activityE+W+S

35A.  A claimant is to be treated as having limited capability for work-related activity where–

(a)they fall within case 1, as defined in regulation 7(1B)(a); and

(b)in respect of the earlier period of limited capability for work referred to in regulation 7(1B)(a)(i), they had been entitled to a support component under sections 2(2) or 4(4) of the Act.]

Textual Amendments

Information required for determining capability for work-related activityE+W+S

36.—(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for work-related activity is—

(a)any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and

(b)any such additional information as may be requested.

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited capability for work-related activity without the information specified in paragraph (1)(a), that information [F283must] not be required for the purposes of making the determination.

Textual Amendments

Failure to provide information in relation to work-related activityE+W+S

37.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 36(1)(a), the claimant is, subject to paragraph (2), to be treated as not having limited capability for work-related activity.

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

[F284(a)the claimant was sent a further request at least three weeks after the date of the first request;]

(b)F285... at least [F2861 week has] passed since the further request was sent.

Textual Amendments

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activityE+W+S

38.—(1) Where it falls to be determined whether a claimant has limited capability for work-related activity, that claimant may be called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination [F287in person, by telephone or by video].

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination [F288mentioned] in paragraph (1), the claimant is to be treated as not having limited capability for work-related activity.

[F289(3) Paragraph (2) does not apply unless—

(a)written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b)the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.]

Textual Amendments

Matters to be taken into account in determining good cause in relation to regulations 37 or 38E+W+S

39.  The matters to be taken into account in determining whether a claimant has good cause under regulations 37 (failure to provide information in relation to work-related activity) or 38 (failure to attend a medical examination to determine limited capability for work-related activity) include—

(a)whether the claimant was outside Great Britain at the relevant time;

(b)the claimant's state of health at the relevant time; and

(c)the nature of any disability the claimant has.

PART 7E+W+SEFFECT OF WORK ON ENTITLEMENT TO AN EMPLOYMENT AND SUPPORT ALLOWANCE

A claimant who works to be treated as not entitled to an employment and support allowanceE+W+S

40.—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.

(2) Paragraph (1) does not apply to—

(a)work as a councillor;

(b)duties undertaken on either one full day or two half-days a week as—

F290(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F291(ii)a member of the First-tier Tribunal where the member is eligible for appointment to be such a member in accordance with article 2(3) of the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008.]

(c)domestic tasks carried out in the claimant's own home or the care of a relative;

(d)duties undertaken in caring for another person who is accommodated with the claimant by virtue of arrangements made under any of the provisions referred to in paragraphs [F29228, 29 or 29A] of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) [F293or] where the claimant is in receipt of any payment specified in those paragraphs;

[F294(da)duties undertaken in caring for another person who is provided with continuing care by a local authority by virtue of arrangements made under section 26A of the Children (Scotland) Act 1995 and is in receipt of a payment made under that section of that Act;]

(e)any activity the claimant undertakes during an emergency to protect another person or to prevent serious damage to property or livestock; or

(f)any of the categories of work set out in regulation 45 (exempt work).

(3) This regulation is subject to regulation 46 (effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment).

(4) A claimant who does work to which this regulation applies in a week which is—

(a)the week in which the claimant first becomes entitled to a benefit, allowance or advantage on account of the claimant's limited capability for work in any period; or

(b)the last week in any period in which the claimant has limited capability for work or is treated as having limited capability for work,

is to be treated as not entitled to an employment and support allowance by virtue of paragraph (1) only on the actual day or days in that week on which the claimant does that work.

(5) Regulation 145 (linking rules) does not apply for the purposes of calculating the beginning or end of any period of limited capability for work under paragraph (4).

(6) The day or days in a week on which a night worker works, for the purposes of [F295paragraph (4)], are to be calculated by reference to regulation 28 (night workers).

(7) In this regulation—

“week” means a week in respect of which a claimant is entitled to an employment and support allowance;

“work” means any work which a claimant does, whether or not that claimant undertakes it in expectation of payment;

“work as a councillor” is to be taken to include any work which a claimant undertakes as a member of any of the bodies referred to in section 177(1) of the Local Government Act 1972 F296 or sub-sections 49(1) or 49(1A) of the Local Government (Scotland) Act 1973 F297, of which the claimant is a member by reason of being a councillor.

Textual Amendments

F2961972 c. 70. Subsection (1) was substituted by the Local Government and Housing Act 1989 (c. 42), section 194 and Schedule 11, paragraph 28(2). Subsection (1) was amended by the School Standards and Framework Act 1998, section 140(1) and (3), Schedule 30, paragraph 3(2) and Schedule 31.

F2971973 c. 65. Subsections 49(1)(b) and (f) were repealed by Schedule 7 of the Local Government (Scotland) Act 1975. Section 49(1A) was inserted by Local Government (Scotland) Act 1975. Section 49(1)(a) was repealed by regulation 2(4) of the Local Governance (Scotland) Act 2004 (Allowances and Expenses) Regulations 2007.

Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule 1 to the ActE+W+S

41.—(1) For the purposes of paragraph 6(1)(e) of Schedule 1 to the Act (conditions of entitlement to an income-related allowance), “remunerative work” means any work which a claimant does for which payment is made or which is done in expectation of payment, other than work listed in paragraph (2) of regulation 40.

(2) Subject to paragraph (3), a claimant who was, or who was being treated as—

(a)engaged in remunerative work; and

(b)in respect of that work earnings to which regulation 95(1)(b) and (d) applies are paid,

is to be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part 10 of these Regulations.

(3) Paragraph (2) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).

Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule 1 to the ActE+W+S

42.—(1) For the purposes of paragraph 6(1)(f) of Schedule 1 to the Act, (conditions of entitlement to an income-related allowance where a claimant must not be a member of a couple the other member of which is engaged in remunerative work), “remunerative work” means work in which the claimant's partner is engaged or, where the partner's hours of work fluctuate, the partner is engaged on average, for not less than 24 hours a week, being work for which payment is made or which is done in expectation of payment.

(2) In calculating the number of hours for which a claimant's partner is engaged in work so as to determine whether that partner is engaged in remunerative work, the number of hours are to be determined in accordance with paragraphs (8) and (9) of regulation 45 and those paragraphs are to be read as though they referred to the claimant's partner.

(3) The claimant's partner is to be treated as engaged in remunerative work during any period for which that partner is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason of a recognised, customary or other holiday.

(4) Subject to paragraph (5), a claimant's partner who was, or who was being treated as—

(a)engaged in remunerative work; and

(b)in respect of that work earnings to which regulation 95(1)(b) and (d) applies are paid,

is to be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part 10 of these Regulations.

(5) Paragraph (4) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).

(6) For the purposes of this regulation, in determining the number of hours in which a claimant's partner is engaged or treated as engaged in remunerative work, no account is to be taken of any hours in which the claimant's partner is engaged in an employment or a scheme to which regulation 43(1) or (2) (claimants' partners not treated as engaged in remunerative work) applies.

Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative workE+W+S

43.—(1) A claimant's partner is not to be treated as engaged in remunerative work in so far as—

(a)the partner is engaged in child minding in the partner's home;

(b)the partner is engaged by a charity or voluntary organisation, or is a volunteer, where the only payment received by the partner or due to be paid to the partner, is a payment which is to be disregarded under regulation 104(2) (calculation of income other than earnings) and paragraph 2 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings);

(c)the partner is engaged on a scheme for which a training allowance is being paid;

(d)the partner is receiving assistance under the self-employment route;

(e)the partner is engaged in employment as any one of the following—

[F298(i)a part-time fire-fighter employed by a fire and rescue authority under the Fire and Rescue Services Act 2004 or by the Scottish Fire and Rescue Service established under section 1A of the Fire (Scotland) Act 2005;]

F298(ii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F298(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iv)an auxiliary coastguard in respect of coast rescue activities;

(v)a person engaged part-time in the manning or launching of a life boat;

(vi)a member of any F299... reserve force prescribed in Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001 F300; or

(f)the partner is undertaking work as a councillor;

(g)the partner is engaged in caring for a person who is accommodated with the partner by virtue of arrangements made under any of the provisions referred to in paragraphs 28 or 29 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) and the partner is in receipt of any payment specified in those paragraphs;

(h)the partner is engaged in an activity in respect of which—

(i)a sports award has been made, or is to be made, to the partner; and

(ii)no other payment is made or is expected to be made to the partner.

(2) A claimant's partner is not to be treated as engaged in remunerative work, where the partner is—

F301(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)subject to regulation 42(4) (partners treated as engaged in remunerative work), a person who would otherwise have satisfied section 126(1) of the Contributions and Benefits Act (trade disputes) F302 or in respect of whom section 124(1) of that Act (conditions of entitlement to income support) F303 would otherwise have had effect as modified by section 127(b) of that Act (effect of return to work)F304;

(c)a person who would otherwise satisfy the conditions set out in paragraph 4 of Schedule 1B to the Income Support Regulations F305;

F306(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The claimant's partner is not to be treated as engaged in remunerative work on any day on which that partner is on maternity leave, paternity leave[F307, shared parental leave][F308, parental bereavement leave] or adoption leave or is absent from work because the partner is ill.

(4) In this regulation—

“work as a councillor” has the same meaning as in regulation 40;

“volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection with that work.

Textual Amendments

F298Reg. 43(1)(e)(i) substituted for reg. 43(1)(e)(i)-(iii)(29.10.2013) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2013 (S.I. 2013/2536), regs. 1(1), 13(22)

F302Section 126(1) was amended by paragraph 31 of Schedule 1 to the Incapacity Act 1994 (c. 18) and paragraph 31(a) and (b) of Schedule 2 to the Jobseekers Act 1995 (c. 18).

F303Section 124(1) was amended by paragraph 30(2) to (5) of Schedule 2 to the Jobseekers Act 1995 and by section 14 of and paragraphs 1, 2(1) and (2) of Part 1 of Schedule 2 to the State Pension Credit Act 2002 (c. 16).

F304Section 127(b) was amended by paragraph 44 of Schedule 24 to the Civil Partnership Act 2004 (c. 33).

Claimants who are treated as not entitled to any allowance at all by reason of regulation 40(1) are to be treated as not having limited capability for workE+W+S

44.—(1) Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 40(1), subject to paragraph (2), the claimant is to be treated as not having limited capability for work.

(2) Paragraph (1) does not apply where the claimant remains entitled to a contributory allowance, but is not entitled to an income-related allowance by reason of regulation 40(1).

(3) Paragraph (1) applies even if—

(a)it has been determined that the claimant has or is to be treated as having, under any of regulations 20 (certain claimants to be treated as having limited capability for work), 25 (hospital in-patients), 26 (claimants undergoing certain regular treatment) or 29 (exceptional circumstances), limited capability for work; or

(b)the claimant meets the conditions set out in regulation 30(2) for being treated as having limited capability for work until a determination is made in accordance with the limited capability for work assessment.

Exempt workE+W+S

45.—(1) The categories of work referred to in regulation 40(2)(f) are set out in the following paragraphs.

(2) Work for which the earnings in any week do not exceed £20.00.

(3) Work for which the earnings in any week do not exceed [F30916 x National Minimum Wage, subject to paragraph (9A),] and which—

(a)is part of the claimant's treatment programme and is done under medical supervision while the claimant is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution; or

(b)is supervised by a person employed by a public or local authority or [F310by a] voluntary organisation [F310or community interest company] engaged in the provision or procurement of work for persons who have disabilities.

(4) Work which is done for less than 16 hours a week, for which earnings in any week do not exceed [F31116 x National Minimum Wage, subject to paragraph (9A),] F312...

F313(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Work done in the course of receiving assistance in pursuing self-employed earner's employment whilst participating in a programme provided or other arrangements made under section 2 of the Employment and Training Act 1973 F314 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 F315 (functions in relation to training for employment etc.).

(6) Work done where the claimant receives no payment of earnings and where the claimant—

(a)is engaged by a charity or voluntary organisation; or

(b)is a volunteer,

where the Secretary of State is satisfied in any of those cases that it is reasonable for the claimant to provide the service free of charge.

(7) Work done in the course of participating in a work placement approved in writing by the Secretary of State before the placement starts.

(8) The number of hours for which a claimant is engaged in work is to be determined—

(a)where no recognisable cycle has been established in respect of a claimant's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which the claimant is expected to work in a week;

(b)where the number of hours for which the claimant is engaged fluctuate, by reference to the average of hours worked over—

(i)if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences);

(ii)in any other case, the period of five weeks immediately before the date of claim or the date on which a superseding decision is made under section 10 (decisions superseding earlier decisions) of the Social Security Act 1998 F316, or such other length of time as may, in the particular case, enable the claimant's average hours of work to be determined more accurately.

(9) For the purposes of determining the number of hours for which a claimant is engaged in work, that number is to include any time allowed to that claimant by the claimant's employer for a meal or for refreshment, but only where that claimant is, or expects to be, paid earnings in respect of that time.

[F317(9A) Where the amount determined by the calculation in paragraphs (3) and (4) would, but for this paragraph, include an amount of–

(a)less than 50p, that amount shall be rounded up to the nearest 50p; or

(b)less than £1 but more than 50p, that amount shall be rounded up to the nearest £1.]

(10) In this regulation—

F318...

F318...

“supervised work” means work done in accordance with paragraph (3)(a) or (b);

“volunteer” has the same meaning it has in regulation 43;

“work placement” means practical work experience with an employer, which is neither paid nor undertaken in expectation of payment.

Textual Amendments

F3141973 c. 50. Section 2 was substituted by section 25(1) of the Employment Act 1988. Subsections (4) and (6) of section 2 were repealed by section 29(4) of and Schedule 7 to the Employment Act 1989. Subsections (3A) and (3B) of section 2, which apply to Scotland only, inserted by the Trade Union Reform and Employment Rights Act 1993.

F3151990 c. 35. Section 2 amended by sections 47(4)(a) and (b) and 51 of and Schedule 10 to the Trade Union Reform and Employment Rights Act 1993. Section 2 also amended by articles 1(2) and 4 of and paragraph 100(2) of Schedule 2 to Scotland Act 1998 (Consequential Modifications) Order (No. 2) 1999.

F3161998 c. 14. Section 10 was amended by sections 18 and 26(3) of and by paragraph 23 of Schedule 7 to and by Schedule 10 to the Transfer of Functions Act 1999.

Modifications etc. (not altering text)

Effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatmentE+W+S

46.  Where a claimant who is entitled to a contributory allowance and is treated as having limited capability for work by virtue of regulation 26 works on any day during a week when the claimant is, in accordance with regulation 26, receiving certain regular treatment or recovering from that treatment, that work is to have no effect on the claimant's entitlement to the contributory allowance.

PART 8E+W+SCONDITIONALITY

CHAPTER 1E+W+SWork-focused health-related assessment

Requirement to take part in a work-focused health-related assessmentE+W+S

F31947.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Work-focused health-related assessmentE+W+S

F32048.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Notification of assessmentE+W+S

F32149.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Determination of the place of the work-focused health-related assessmentE+W+S

F32250.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Taking part in a work-focused health-related assessmentE+W+S

F32351.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Deferral of requirement to take part in a work-focused health-related assessmentE+W+S

F32452.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Failure to take part in a work-focused health-related assessmentE+W+S

F32553.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

CHAPTER 2E+W+SWork-focused interviews

Requirement to take part in a work-focused interviewE+W+S

54.—(1) The Secretary of State may require a claimant who satisfies the requirements in paragraph (2) to take part in one or more work-focused interviews as a condition of continuing to be entitled to the full amount of employment and support allowance payable to the claimant.

(2) The requirements referred to in paragraph (1) are that the claimant—

(a)is either—

(i)entitled to an employment and support allowance; or

(ii)a person in respect of whom the Secretary of State has made an award under regulation 146(1);

(b)is not a member of the support group;

(c)has not reached the age at which a woman of the same age as the claimant would attain pensionable age; F326...

(d)is not only entitled to a contributory allowance payable at a nil rate[F327; and]

[F327(e)is not a lone parent who is responsible for and a member of the same household as a child under one.]

(3) Any requirement to take part in a work-focused interview ceases to have effect if the claimant ceases to satisfy the requirements in paragraph (2).

Textual Amendments

Work-focused interviewE+W+S

55.  The purposes of a work-focused interview are any or all of the following—

(a)assessing the claimant's prospects for remaining in or obtaining work;

(b)assisting or encouraging the claimant to remain in or obtain work;

(c)identifying activities that the claimant may undertake that will make remaining in or obtaining work more likely;

(d)identifying training, educational or rehabilitation opportunities for the claimant which may make it more likely that the claimant will remain in or obtain work or be able to do so;

(e)identifying current or future work opportunities, including self-employment opportunities, for the claimant, that are relevant to the claimant's needs and abilities.

Notification of interviewE+W+S

56.—(1) The Secretary of State must notify the claimant of the requirement to [F328take part in] the work-focused interview including details of the date, time and [F329if required to attend in person, the] place of the interview.

(2) A work-focused interview may take place at a claimant's home if it is determined that requiring the claimant to attend elsewhere would cause undue inconvenience to, or endanger the health of, the claimant.

(3) The notification referred to in paragraph (1) may be in writing or otherwise.

Textual Amendments

Taking part in a work-focused interviewE+W+S

57.—(1) A claimant is regarded as having taken part in a work-focused interview if the claimant—

(a)[F330if required to attend in person,] attends for the interview at the place and at the date and time notified in accordance with regulation 56;

[F331(aa)if not required to attend in person, is available and responds at the date and time notified in accordance with regulation 56 to any contact made at that time for the purpose of carrying out the interview;]

(b)provides information, if requested by the Secretary of State, about any or all of the matters set out in paragraph (2);

(c)participates in discussions to the extent the Secretary of State considers necessary, about any or all of the matters set out in paragraph (3);

F332(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The matters referred to in paragraph (1)(b) are—

(a)the claimant's educational qualifications and vocational training;

(b)the claimant's work history;

(c)the claimant's aspirations for future work;

(d)the claimant's skills that are relevant to work;

(e)the claimant's work-related abilities;

(f)the claimant's caring or childcare responsibilities; and

(g)any paid or unpaid work that the claimant is undertaking.

(3) The matters referred to in paragraph (1)(c) are—

(a)any activity the claimant is willing to undertake which may make obtaining or remaining in work more likely;

(b)any such activity that the claimant may have previously undertaken;

(c)any progress the claimant may have made towards remaining in or obtaining work;

(d)any work-focused health-related assessment the claimant may have taken part in; and

(e)the claimant's opinion as to the extent to which the ability to remain in or obtain work is restricted by the claimant's physical or mental condition.

Textual Amendments

Action planE+W+S

F33358.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Deferral of requirement to take part in a work-focused interviewE+W+S

59.—(1) A requirement to take part in a work-focused interview may be deferred or treated as having been deferred if at the time the work-focused interview is to take place, or was due to take place, such an interview would not at that time be or have been—

(a)of assistance to the claimant; or

(b)appropriate in the circumstances.

(2) A decision under paragraph (1) may be made at any time after the requirement to take part in the work-focused interview is imposed, including after the time that the work-focused interview was due to take place or took place.

(3) Where a requirement to take part in a work-focused interview is deferred, or treated as having been deferred, then the time that the work-focused interview is to take place must be re-determined.

Requirement to take part in a work-focused interview not to applyE+W+S

60.  The Secretary of State may determine that a requirement on a claimant to take part in a work-focused interview is not to apply, or is to be treated as not having applied, if that interview would not be, or would not have been, of assistance because the claimant is or was likely to be starting or returning to work.

Failure to take part in a work-focused interviewE+W+S

61.—(1) A claimant who is required to take part in a work-focused interview but fails to do so must show good cause for that failure within 5 working days of the date on which the Secretary of State gives notification of that failure.

(2) The Secretary of State must determine whether a claimant who is required to take part in a work-focused interview has failed to do so and, if so, whether the claimant has shown good cause for that failure in accordance with paragraph (1).

F334(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Contracting out certain functions relating to work-focused interviewsE+W+S

62.—(1) Any function of the Secretary of State specified in paragraph (2) may be exercised by, or by employees of, such person (if any) as may be authorised by the Secretary of State.

(2) The functions are any function under—

(a)regulation 54(1) (requirement to take part in a work-focused interview);

(b)regulation 56(1) and (2) (notification requirement);

(c)regulation 57(1)(b) and (c) (taking part in a work-focused interview);

F335(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e)regulation 59(1) and (3) (deferral of requirement to take part in a work-focused interview);

(f)regulation 60 (requirement to take part in a work-focused interview not to apply).

Textual Amendments

CHAPTER 3E+W+SReduction of employment and support allowance

Reduction of employment and support allowanceE+W+S

63.—[F336(1) Where the Secretary of State has determined—

(a)that a claimant who was required to take part in a work-focused interview has failed to do so and has failed to show good cause for that failure in accordance with regulation 61; or

(b)that a claimant who was required to undertake work-related activity has failed to do so and has failed to show good cause for that failure in accordance with regulation 8 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011,

(“a failure determination”) the amount of the employment and support allowance payable to the claimant is to be reduced in accordance with this regulation.]

[F337(2) Subject to paragraph (3), the amount of the reduction in relation to each failure determination is 100% of the prescribed amount for a single claimant as set out in paragraph (1)(a) of Part 1 of Schedule 4.]

(3) In any benefit week, the amount of an employment and support allowance payable to a claimant is not, by virtue of this regulation, to be reduced—

(a)below 10 pence;

(b)in relation to more than—

(i)one failure determination relating to [F338work-related activity]; and

(ii)one failure determination relating to a work-focused interview; and

(c)by more than 100% of the [F339prescribed amount for a single claimant as set out in paragraph 1(a) of Part 1] of Schedule 4 in any circumstances.

(4) Where a claimant is entitled to both a contributory allowance and an income-related allowance, any reduction in the claimant's allowance must first be applied to the part of that allowance treated as attributable to the claimant's contributory allowance and only if there is any amount outstanding is it to be applied to the part of that allowance treated as attributable to the claimant's income-related allowance.

(5) For the purposes of determining the amount of any income-related allowance payable, a claimant is to be treated as receiving the amount of any contributory allowance [F340including new style ESA] which would have been payable but for any reduction made in accordance with this regulation [F341or section 11J of the Act respectively].

[F342(6) Subject to paragraph (10), the reduction is to have effect for—

(a)one week for each 7 day period during which the claimant fails to meet a compliance condition; and

(b)a further fixed period determined in accordance with paragraph (7).

[F343(7) The fixed period that applies in the circumstances described in the first column of the following table is set out in the second column.

Circumstances applicable to claimant’s caseFixed period
Where there has been no previous failure by the claimant that falls within paragraph (8)1 week
Where there have been one or more previous failures by the claimant that fall within paragraph (8) and the date of the most recent previous failure is not within 52 weeks beginning with the date of the current failure1 week
Where there have been one or more previous failures by the claimant that fall within paragraph (8) and the date of the most recent previous failure is within 52 weeks, but not within 2 weeks, beginning with the date of the current failure and the period of reduction applicable to the most recent previous failure is or, but for paragraph (3), would have been—
(a) 1 week2 weeks
(b) 2 weeks4 weeks
(c) 4 weeks4 weeks
Where there have been one or more previous failures by the claimant that fall within paragraph (8) and the date of the most recent previous failure is within 2 weeks beginning with the date of the current failure and the period of reduction applicable to the most recent previous failure is or, but for paragraph (3), would have been—
(a) 1 week1 week
(b) 2 weeks2 weeks
(c) 4 weeks4 weeks.]

(8) A previous failure falls within this paragraph if—

(a)it relates to a failure for which a reduction was imposed under this regulation, or would have been but for paragraph (3); [F344and]

(b)that failure occurred on or after 3rd December 2012; F345...

F345(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) This paragraph applies where the claimant meets a compliance condition before the end of the period of one week after the date of the failure to which the failure determination relates.

(10) Where paragraph (9) applies, the claimant’s employment and support allowance is reduced only for the fixed period set out in paragraph (7) applicable to the claimant.

(11) In this regulation—

“compliance condition” means—

(a)

where the failure by the claimant relates to a requirement to take part in a work-focused interview, either—

(i)

taking part in a work-focused interview, or

(ii)

making an agreement with the Secretary of State to take part in a work-focused interview at an agreed date;

(b)

where the failure by the claimant relates to a requirement to undertake work-related activity, either—

(i)

undertaking the activity specified in the action plan, or

(ii)

where so notified by the Secretary of State, undertaking an alternative activity, or

(iii)

making an agreement with the Secretary of State to undertake the activity referred to in sub-paragraph (i) or (ii) at an agreed date;

“current failure” means a failure which may lead to a reduction under this regulation in relation to which the Secretary of State has not yet determined whether the amount of the employment and support allowance payable to the claimant is to be reduced in accordance with this regulation.]

Textual Amendments

F345Reg. 63(8)(c) and word omitted (with application in accordance with reg. 2 of the amending S.I.) by virtue of The Social Security (Jobseekers Allowance, Employment and Support Allowance and Universal Credit) (Amendment) Regulations 2016 (S.I. 2016/678), regs. 1, 4(b)(ii)

Cessation of reductionE+W+S

64.—[F346(1) Any reduction imposed as a result of a failure determination which resulted from a failure to undertake work-related activity in accordance with the Employment and Support Allowance (Work-Related Activity) Regulations 2011 ceases to have effect if—

F347(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the claimant subsequently ceases to be subject to a requirement to undertake work-related activity; or

(c)the Secretary of State decides it is no longer appropriate to require the person to undertake work-related activity at that time.]

[F348(1A) The Secretary of State must notify the person in writing—

F349(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)of any decision under paragraph (1)(c).]

(2) Any reduction imposed as a result of a failure determination which resulted from a failure to take part in a work-focused interview ceases to have effect if—

F350(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the claimant subsequently ceases to meet the requirements set out in regulation 54(2).

Textual Amendments

[F351Hardship paymentsE+W+S

64A.  The Secretary of State must make a hardship payment to a claimant only where—

(a)the Secretary of State is satisfied that the claimant is or will be in hardship unless a hardship payment is made;

(b)the claimant’s employment and support allowance has been reduced in accordance with regulation 63;

(c)the claimant meets the conditions of entitlement to an income-related employment and support allowance;

(d)the claimant completes and submits an application —

(i)approved for the purpose by the Secretary of State, or in such other form as the Secretary of State accepts as sufficient, and

(ii)in such manner as the Secretary of State determines; and

(e)the claimant provides such information or evidence as the Secretary of State may require, in such manner as the Secretary of State determines.

Textual Amendments

Circumstances in which a claimant is to be treated as being in hardshipE+W+S

64B.  A claimant is to be treated as being in hardship if the claimant’s partner, or a child or qualifying young person for whom the claimant or the claimant’s partner is responsible, is or will be in hardship unless a hardship payment is made.

Textual Amendments

Matters to be taken into account in determining hardshipE+W+S

64C.—(1) The Secretary of State must take the following matters into account in determining hardship—

(a)whether the claimant’s partner or a person in the claimant’s family satisfies the requirements for a disability premium specified in paragraphs 6 and 7 of Schedule 4, or an element of child tax credit in respect of a child or young person who is disabled or severely disabled within the meaning of regulation 8 of the Child Tax Credit Regulations 2002;

(b)the resources which are likely to be available to the household without a hardship payment, including resources from persons who are not members of the household, but excluding any payment referred to in paragraph (2);

(c)the difference between the resources referred to in sub-paragraph (b) and the amount of the hardship payment that the claimant would receive;

(d)whether there is substantial risk that the household will not have access to essential items (including food, clothing, heating and accommodation), or will have access to such essential items at considerably reduced levels, without a hardship payment; and

(e)the length of time that the factors set out in sub-paragraphs (b) to (d) are likely to continue.

(2) The payments to be excluded from the resources referred to in paragraph (1)(b) are payments made under paragraph 7 (1) or (2) of Schedule 8 (sums to be disregarded in the calculation of income other than earnings: child tax credit and child benefit) to the claimant or the claimant’s partner in respect of a child or young person who is a member of the claimant’s household or family.

Textual Amendments

The amount of a hardship paymentE+W+S

64D.—[F352(1) A hardship payment is either—

(a)80% of the prescribed amount for a single claimant as set out in paragraph (1)(a) of Part 1 of Schedule 4 where—

(i)the claimant has an award of employment and support allowance which does not include entitlement to a work-related activity component under section 4(2)(b) of the Welfare Reform Act 2007 as in force immediately before 3rd April 2017; and

(ii)the claimant or any other member of their family is either pregnant or seriously ill; or

(b)60% of the prescribed amount for a single claimant as set out in paragraph (1)(a) of Part 1 of Schedule 4 in any other case.]

(2) A payment calculated in accordance with paragraph (1) shall, if it is not a multiple of 5p, be rounded to the nearest such multiple or, if it is a multiple of 2.5p but not of 5p, to the next lower multiple of 5p.]

Textual Amendments

CHAPTER 4E+W+SNotification

Notification under this PartE+W+S

65.—(1) Where written notification is to be given in accordance with this Part, such notification may be sent by post.

(2) Any notification sent by post is to be taken to have been received on the second working day after posting.

CHAPTER 5E+W+SModification of the Act in relation to claims to which section 5(1)(c) of the Administration Act applies

Modifications of the ActE+W+S

66.—(1) Where a person has made a claim for an employment and support allowance to which section 5(1)(c) of the Administration Act applies, the Act applies with the following modifications.

(2) Section 11(1) of the Act applies—

(a)as if for sub-paragraph (a) there were substituted—

“(a)either—

(i)entitled to an employment and support allowance; or

(ii)a person who has made a claim for an employment and support allowance  to which regulations under section 5(1)(c) of the Administration Act apply; and”; and

(b)as if for “continuing to be” there were substituted “ being ”.

(3) Section 12(1) of the Act applies—

(a)as if for sub-paragraph (a) there were substituted—

“(a)either—

(i)entitled to an employment and support allowance; or

(ii)a person who has made a claim to which section 5 applies; and”; and

(b)as if for “continuing to be” there were substituted “ being ”.

PART 9E+W+SAMOUNTS OF ALLOWANCE

CHAPTER 1E+W+SPrescribed amounts

Prescribed amountsE+W+S

67.—(1) Subject to regulations 68, 69 F353... (amounts in other cases, special casesF353...), the amounts prescribed for the purposes of the calculation of the amount of an income-related allowance under section 4(2)(a) of the Act in relation to a claimant are such of the following amounts as may apply in the claimant's case—

(a)an amount in respect of the claimant or, if the claimant is a member of a couple, an amount in respect of both of them determined in accordance with paragraph 1(1), (2) or (3) of Schedule 4 (amounts) as the case may be;

(b)the amount of any premiums which may be applicable to the claimant determined in accordance with Parts 2 and 3 of that Schedule (premiums);

(c)any amounts determined in accordance with Schedule 6 (housing costs) which may be applicable to the claimant in respect of [F354housing costs as prescribed] in that Schedule.

(2) Subject to regulation 69 (special cases) the amount prescribed for the purposes of the calculation of the amount of a claimant's contributory allowance under section 2(1)(a) of the Act is the amount determined in accordance with paragraph 1(1) of Schedule 4 as may apply in the claimant's case.

(3) Subject to regulation 69, the amount of the [F355work-related activity component and the] support component [F356are] [F356is] prescribed in Part 4 of Schedule 4.

Textual Amendments

F354Words in reg. 67(1)(c) substituted (with effect in accordance with regs.19 - 21 of the amending S.I.) by The Loans for Mortgage Interest Regulations 2017 (S.I. 2017/725), reg. 1(2)(a), Sch. 5 para. 1(a)

Polygamous marriagesE+W+S

68.—(1) Subject to regulation 69 F357... (special casesF357...), where a claimant is a husband or wife by virtue of a polygamous marriage the amounts prescribed for the purposes of the calculation of the amount of an income-related allowance under section 4(2)(a) of the Act are such of the following amounts as may apply in the claimant's case—

(a)an amount in respect of the claimant and the other party to the marriage determined in accordance with paragraph 1(3) of Schedule 4;

(b)an amount equal to the difference between the amounts specified in paragraph 1(3)(a) (couple where both aged 18 and over) and 1(1)(b) (single claimant aged 25 and over) of Schedule 4 in respect of each spouse additional to the marriage;

(c)the amount of any premiums which are applicable to the claimant determined in accordance with Parts 2 and 3 of that Schedule (premiums);

(d)any amounts determined in accordance with Schedule 6 (housing costs) which may be applicable to the claimant in respect of [F358housing costs as prescribed] in that Schedule.

(2) In the case of a partner who is aged less than 18, the amount which applies in respect of that partner is nil unless—

(a)that partner is treated as responsible for a child; or

(b)that partner is a person who—

(i)had that partner not been a member of a polygamous marriage would have qualified for an income-related allowance; or

(ii)satisfies the requirements of section 3(1)(f)(iii) of the Jobseekers Act (prescribed circumstances for persons aged 16 but less than 18); or

(iii)is the subject of a direction under section 16 F359 of that Act (persons under 18: severe hardship).

Textual Amendments

F358Words in reg. 68(1)(d) substituted (with effect in accordance with regs.19 - 21 of the amending S.I.) by The Loans for Mortgage Interest Regulations 2017 (S.I. 2017/725), reg. 1(2)(a), Sch. 5 para. 1(b)

F359Section 16 was amended by paragraph 139(1) and (2) of Schedule 7 to the Social Security Act 1998 (c. 14).

Special casesE+W+S

69.—(1) In the case of a claimant to whom any paragraph in column (1) of Schedule 5 applies (amounts in special cases), the amount in respect of the claimant is to be the amount in the corresponding paragraph in column (2) of that Schedule.

(2) In Schedule 5—

“partner of a person subject to immigration control” means a person—

(a)

who is not subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act; or

(b)

to whom section 115 of that Act does not apply by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 F360; and

(c)

who is a member of a couple and the member's partner is subject to immigration control within the meaning of section 115(9) of that Act and section 115 of that Act applies to the partner for the purposes of exclusion from entitlement to an income-related allowance;

“patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 F361;

“person from abroad” has the meaning given in regulation 70;

“person in hardship” means a person who satisfies regulation 158 but only for a period not exceeding 6 weeks;

“prisoner” means a person who—

(a)

is detained in custody pending trial or sentence on conviction or under a sentence imposed by a court; or

(b)

is on temporary release in accordance with the provisions of the Prison Act 1952 F362 or the Prisons (Scotland) Act 1989 F363,

other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 F364 or, in Scotland, under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 F365 or the Criminal Procedure (Scotland) Act 1995 F366.

[F367(3) In Schedule 5 “person serving a sentence of imprisonment detained in hospital” means a person (“P”) who satisfies either of the following conditions.

(4) The first condition is that—

(a)P is being detained under section 45A or 47 of the Mental Health Act 1983 (power of higher courts to direct hospital admission; removal to hospital of persons serving sentences of imprisonment etc.); and

(b)in any case where there is in relation to P a release date within the meaning of section 50(3) of that Act, P is being detained on or before the day which the Secretary of State certifies to be that release date.

(5) The second condition is that P is being detained under—

(a)section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction); or

(b)section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder).]

Textual Amendments

F3652003 asp. 13.

Special cases: supplemental – persons from abroadE+W+S

70.—(1) “Person from abroad” means, subject to the following provisions of this regulation, a claimant who is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.

(2) A claimant must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the claimant has a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland other than a right to reside which falls within paragraph (3) [F368or (3A)].

(3) A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following—

(a)regulation 13 of the [F369Immigration (European Economic Area) Regulations 2016]

(b)regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the claimant is—

(i)a jobseeker for the purpose of the definition of “qualified person” in regulation 6(1) of those Regulations; or

(ii)a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker; [F370or]

[F371(bb)regulation 16 of those Regulations, but only in a case where the right exists under that regulation because the claimant satisfies the criteria in paragraph (5) of that regulation;]

F372(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F372(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F372(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F373(3A) A right to reside falls within this paragraph if it exists by virtue of a claimant having been granted limited leave to enter, or remain in, the United Kingdom under the Immigration Act 1971 by virtue of—

(a)Appendix EU to the immigration rules made under section 3(2) of that Act; F374...

(b)being a person with a Zambrano right to reside as defined in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of that Act[F375; or

(c)having arrived in the United Kingdom with an entry clearance that was granted under Appendix EU (Family Permit) to the immigration rules made under section 3(2) of that Act].]

[F376(3B) Paragraph (3A)(a) does not apply to a person who—

(a)has a right to reside granted by virtue of being a family member of a relevant person of Northern Ireland; and

(b)would have a right to reside under the Immigration (European Economic Area) Regulations 2016 if the relevant person of Northern Ireland were an EEA national, provided that the right to reside does not fall within paragraph (3).]

(4) A claimant is not a person from abroad if the claimant is—

(zza)a person granted leave in accordance with the immigration rules made under section 3(2) of the Immigration Act 1971, where such leave is granted by virtue of—

(i)the Afghan Relocations and Assistance Policy; or

(ii)the previous scheme for locally-employed staff in Afghanistan (sometimes referred to as the ex-gratia scheme);

(zzb)a person in Great Britain not coming within sub-paragraph (zza) or [F377(h)] who left Afghanistan in connection with the collapse of the Afghan government that took place on 15th August 2021;

[F378(zzc)a person in Great Britain who was residing in Ukraine immediately before 1st January 2022, left Ukraine in connection with the Russian invasion which took place on 24th February 2022 and—

(i)has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971; F379...

(ii)has a right of abode in the United Kingdom within the meaning given in section 2 of that Act;] [F380or]

[F381(iii)does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act;]

[F382(zzd)a person who was residing in Sudan before 15th April 2023, left Sudan in connection with the violence which rapidly escalated on 15th April 2023 in Khartoum and across Sudan and—

(i)has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971;

(ii)has a right of abode in the United Kingdom within the meaning given in section 2 of that Act; or

(iii)does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act;]

[F383(zze)a person who was residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7th October 2023, who left Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon in connection with the Hamas terrorist attack in Israel on 7th October 2023 or the violence which rapidly escalated in the region following the attack and—

(i)has been granted leave in accordance with immigration rules made under section 3(2) of the Immigration Act 1971;

(ii)has a right of abode in the United Kingdom within the meaning given in section 2 of that Act; or

(iii)does not require leave to enter or remain in the United Kingdom in accordance with section 3ZA of that Act;]

[F384(za)a qualified person for the purposes of regulation 6 of the [F385Immigration (European Economic Area) Regulations 2016] as a worker or a self-employed person;

(zb)a family member of a person referred to in sub-paragraph (za)F386...;

(zc)a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of those Regulations;]

[F387(zd)a family member of a relevant person of Northern Ireland, with a right to reside which falls within paragraph (3A)(a), provided that the relevant person of Northern Ireland falls within sub-paragraph (za), or would do so but for the fact that they are not an EEA national;]

[F388(ze)a frontier worker within the meaning of regulation 3 of the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020;

(zf)a family member of a person referred to in sub-paragraph (ze), who has been granted limited leave to enter, or remain in, the United Kingdom by virtue of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971;]

F384(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F384(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g)a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 F389, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967 F390;

[F391(h)a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 F392...]

(i)a person who has humanitarian protection granted under those rules; [F393or]

(j)a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act and who is in the United Kingdom as a result of deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom; F394...

F395(k). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F395(l). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F396(5) In this regulation—

“EEA national” has the meaning given in regulation 2(1) of the Immigration (European Economic Area) Regulations 2016;

“family member” has the meaning given in regulation 7(1)(a), (b) or (c) of the Immigration (European Economic Area) Regulations 2016 except that regulation 7(4) of those Regulations does not apply for the purposes of paragraphs (3B) and (4)(zd);

“relevant person of Northern Ireland” has the meaning given in Annex 1 of Appendix EU to the immigration rules made under section 3(2) of the Immigration Act 1971.]

[F397(6) References in this regulation to the Immigration (European Economic Area) Regulations 2016 are to be read with Schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020(Consequential, Saving, Transitional and Transitory Provisions) Regulations 2020.]

Textual Amendments

F374Word in reg. 70(3A)(a) omitted (31.12.2020 immediately after IP completion day) by virtue of The Immigration (Citizens' Rights etc.) (EU Exit) Regulations 2020 (S.I. 2020/1372), regs. 1(2)(a)(3)(d), 23(2)(a)

F375Reg. 70(3A)(c) and word inserted (31.12.2020 immediately after IP completion day) by The Immigration (Citizens' Rights etc.) (EU Exit) Regulations 2020 (S.I. 2020/1372), regs. 1(2)(a)(3)(d), 23(2)(b)

F384Reg. 70(4)(za)-(zc) substituted for reg. 70(4)(a)-(f) (31.5.2014) by The Social Security (Habitual Residence) (Amendment) Regulations 2014 (S.I. 2014/902), regs. 1, 7

F389Cmnd. 9171.

F390Cmnd. 3906.

Modifications etc. (not altering text)

Definition of non-dependantE+W+S

71.—(1) In these Regulations, “non-dependant” means any person, except someone to whom paragraph (2), (3) or (4) applies, who normally resides with a claimant or with whom a claimant normally resides.

(2) This paragraph applies to—

(a)any member of the claimant's family;

(b)a child or young person who is living with the claimant but who is not a member of the claimant's household;

(c)a person who lives with the claimant in order to care for the claimant or for the claimant's partner and who is engaged for that purpose by a charitable or voluntary organisation which makes a charge to the claimant or the claimant's partner for the care provided by that person;

(d)the partner of a person to whom sub-paragraph (c) applies.

(3) This paragraph applies to a person, other than a close relative of the claimant or the claimant's partner—

(a)who is liable to make payments on a commercial basis to the claimant or the claimant's partner in respect of the person's occupation of the claimant's dwelling;

(b)to whom the claimant or the claimant's partner is liable to make payments on a commercial basis in respect of the claimant's occupation of that person's dwelling;

(c)who is a member of the household of a person to whom sub-paragraph (a) or (b) applies.

(4) Subject to paragraph (5), this paragraph applies to—

(a)a person who jointly occupies the claimant's dwelling and who is either—

(i)a co-owner of that dwelling with the claimant or the claimant's partner (whether or not there are other co-owners); or

(ii)jointly liable with the claimant or the claimant's partner to make payments to a landlord in respect of the person's occupation of that dwelling;

(b)a partner of a person to whom sub-paragraph (a) applies.

(5) Where a person is a close relative of the claimant or the claimant's partner, paragraph (4) applies to that person only if the claimant's, or the claimant's partner's, co-ownership, or joint liability to make payments to a landlord in respect of occupation of the dwelling arose either before 11th April 1988 or, if later, on or before the date on which the claimant or the claimant's partner first occupied the dwelling in question.

(6) For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area but not if each person is separately liable to make payments in respect of occupation of the dwelling to the landlord.

(7) In this regulation “communal area” means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.

CHAPTER 2E+W+SDeductions from the contributory allowance

Permanent health insuranceE+W+S

72.—(1) For the purposes of sections 2(1)(c) and 3 of the Act (deductions from contributory allowance) pension payment is to include a permanent health insurance payment.

(2) In this regulation “permanent health insurance payment” means any periodical payment arranged by an employer under an insurance policy providing benefits in connection with physical or mental illness or disability, in relation to a former employee on the termination of that person's employment.

[F398Financial Assistance SchemeE+W+S

72A.—(1) For the purposes of sections 2(1)(c) and 3 of the Act (deductions from contributory allowance) pension payment is to include a Financial Assistance Scheme payment.

(2) In this regulation “Financial Assistance Scheme payment” means a payment made under the Financial Assistance Scheme Regulations 2005.]

Textual Amendments

Councillor's allowanceE+W+S

73.  For the purposes of section 3(1)(c) of the Act—

(a)a councillor's allowance is a payment of a prescribed description; and

(b)the prescribed bodies carrying out public or local functions are those councils referred to in the definition of “councillor”.

Deductions for pension payment and PPF paymentE+W+S

74.—(1) Where—

(a)[F399a claimant] is entitled to a contributory allowance in respect of any period of a week or part of a week;

(b)there is—

(i)a pension payment;

(ii)a PPF periodic payment; or

(iii)any combination of the payments specified in paragraphs (i) and (ii),

payable to that person in respect of that period (or a period which forms part of that period or includes that period or part of it); and

(c)the amount of the payment, or payments when taken together, exceeds—

(i)if the period in question is a week, £85.00; or

(ii)if that period is not a week, such proportion of the amount mentioned in paragraph (i) as falls to be calculated in accordance with regulation 94(1) or (6) (calculation of weekly amount of income),

the amount of that allowance is to be reduced by an amount equal to 50% of the excess.

(2) For the purposes of this Chapter “payment” means a payment or payments, as the case may be, referred to in paragraph (1)(b).

Textual Amendments

Payments treated as not being payments to which section 3 appliesE+W+S

75.  The following payments are to be treated as not being payments to which section 3 applies—

(a)any pension payment made to a claimant as a beneficiary on the death of a member of any pension scheme;

(b)any PPF periodic payment made to a claimant as a beneficiary on the death of a person entitled to such a payment;

(c)where a pension scheme is in deficit or has insufficient resources to meet the full pension payment, the extent of the shortfall;

(d)any pension payment made under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 F400;

(e)any guaranteed income payment;

(f)any permanent health insurance payment in respect of which the employee had contributed to the premium to the extent of more than 50%.

Textual Amendments

Deductions for councillor's allowanceE+W+S

76.—(1) Where the net amount of councillor's allowance to which a claimant is entitled in respect of any week exceeds [F40116 x National Minimum Wage, subject to paragraph (3)], an amount equal to the excess is to be deducted from the amount of a contributory allowance to which that [F402claimant] is entitled in respect of that week, and only the balance remaining (if any) is to be payable.

(2) In paragraph (1) “net amount”, in relation to any councillor's allowance to which a claimant is entitled, means the aggregate amount of the councillor's allowance or allowances, or remuneration to which that claimant is entitled for the week in question, reduced by the amount of any payment in respect of expenses wholly, exclusively and necessarily incurred by that claimant, in that week, in the performance of the duties of a councillor.

[F403(3) Where the amount determined by the calculation in paragraph (1) would, but for this paragraph, include an amount of–

(i)less than 50p, that amount shall be rounded up to the nearest 50p; or

(ii)less than £1 but more than 50p, that amount shall be rounded up to the nearest £1.]

Textual Amendments

Date from which payments are to be taken into accountE+W+S

77.  Where regulations 74(1) and 76(1) apply, deductions must have effect, calculated where appropriate in accordance with regulation 94(1) or (6), from the first day of the benefit week in which the payment or councillor's allowance is paid to a claimant who is entitled to a contributory allowance in that week.

Date from which a change in the rate of the payment takes effectE+W+S

78.  Where a payment or councillor's allowance is already being made to a claimant and the rate of that payment or that allowance changes, the deduction at the new rate must take effect, calculated where appropriate in accordance with regulation 94(1) or (6), from the first day of the benefit week in which the new rate of the payment or councillor's allowance is paid.

Calculation of payment made other than weeklyE+W+S

79.—(1) Where the period in respect of which a payment or councillor's allowance is paid is otherwise than weekly, an amount calculated or estimated in accordance with regulation 94(1) or (6) is to be regarded as the weekly amount of that payment or allowance.

(2) In determining the weekly payment, where two or more payments are payable to a claimant, each payment is to be calculated separately in accordance with regulation 94(1) or (6) before aggregating the sum of those payments for the purposes of the reduction of a contributory allowance in accordance with regulation 74.

CHAPTER 3E+W+SStatutory payments

Effect of statutory maternity pay on a contributory allowanceE+W+S

80.—(1) This regulation applies where—

(a)a woman is entitled to statutory maternity pay and, on the day immediately preceding the first day in the maternity pay period—

(i)is in a period of limited capability for work; and

(ii)satisfies the conditions of entitlement to a contributory allowance in accordance with section 1(2)(a) of the Act; and

(b)on any day during the maternity pay period—

(i)she is in a period of limited capability for work; and

(ii)that day is not a day where she is treated as not having limited capability for work.

(2) Where this regulation applies, notwithstanding section 20(2) of the Act, a woman who is entitled to statutory maternity pay is to be entitled to a contributory allowance in respect of any day that falls within the maternity pay period.

(3) Where by virtue of paragraph (2) a woman is entitled to a contributory allowance for any week (including part of a week), the total amount of such benefit payable to her for that week is to be reduced by an amount equivalent to any statutory maternity pay to which she is entitled in accordance with Part 12 of the Contributions and Benefits Act for the same week (or equivalent part of a week where entitlement to a contributory allowance is for part of a week) and only the balance, if any, of the contributory allowance is to be payable to her.

Effect of statutory adoption pay on a contributory allowanceE+W+S

81.—(1) This regulation applies where—

(a)a claimant is entitled to statutory adoption pay and, on the day immediately preceding the first day in the adoption pay period—

(i)is in a period of limited capability for work; and

(ii)satisfies the conditions of entitlement to a contributory allowance in accordance with section 1(2)(a) of the Act; and

(b)on any day during the adoption pay period—

(i)that claimant is in a period of limited capability for work; and

(ii)that day is not a day where that claimant is treated as not having limited capability for work.

(2) Where this regulation applies, notwithstanding section 20(4) of the Act, a claimant who is entitled to statutory adoption pay is to be entitled to a contributory allowance in respect of any day that falls within the adoption pay period.

(3) Where by virtue of paragraph (2) a claimant is entitled to a contributory allowance for any week (including part of a week), the total amount of such benefit payable to that claimant for that week is to be reduced by an amount equivalent to any statutory adoption pay to which that claimant is entitled in accordance with Part 12ZB of the Contributions and Benefits Act F404 for the same week (or equivalent part of a week where entitlement to a contributory allowance is for part of a week) and only the balance, if any, of the contributory allowance is to be payable to that claimant.

Textual Amendments

F404Part 12ZB was inserted by section 4 of the Employment Act 2002 (c. 22) and amended by the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regulation 49(1) and paragraph 12 of Schedule 8.

Effect of additional statutory paternity pay on a contributory allowanceE+W+S

F40582.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

[F406Effect of statutory shared parental pay on a contributory allowanceE+W+S

82A.—(1) This regulation applies where—

(a)a claimant is entitled to statutory shared parental pay and, on the day immediately preceding the first day in the shared parental pay period—

(i)is in a period of limited capability for work; and

(ii)satisfies the conditions for a contributory allowance in accordance with section 1(2)(a) of the Act; and

(b)on any day during the statutory shared parental pay period—

(i)that claimant is in a period of limited capability for work; and

(ii)that day is not a day where that claimant is treated as not having limited capability for work.

(2) Where this regulation applies, notwithstanding section 20(6) of the Act, a claimant who is entitled to statutory shared parental pay is to be entitled to a contributory allowance in respect of any day that falls within the shared parental pay period.

(3) Where by virtue of paragraph (2) a person is entitled to a contributory allowance for any week (including part of a week), the total amount of such benefit payable to that claimant for that week is to be reduced by an amount equivalent to any statutory shared parental pay to which that claimant is entitled in accordance with Part 12ZC of the Contributions and Benefits Act for the same week (or equivalent part of a week where entitlement to a contributory allowance is for part of a week) and only the balance, if any, of the contributory allowance is to be payable to that claimant.

(4) In this regulation “statutory shared parental pay period” means the weeks in respect of which statutory shared parental pay is payable to a person under section 171ZY(2) of the Social Security Contributions and Benefits Act 1992.]

Textual Amendments

PART 10E+W+SINCOME AND CAPITAL

CHAPTER 1E+W+SGeneral

Calculation of income and capital of members of claimant's family and of a polygamous marriageE+W+S

83.—(1) Subject to paragraph (4), the income and capital of a claimant's partner which by virtue of paragraph 6(2) of Schedule 1 to the Act is to be treated as income and capital of the claimant, is to be calculated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the “claimant” is, except where the context otherwise requires, to be construed, for the purposes of this Part, as if it were a reference to the claimant's partner.

(2) Subject to the following provisions of this Part, the income paid to, or in respect of, and capital of, a child or young person who is a member of the claimant's family is not to be treated as the income or capital of the claimant.

(3) Subject to paragraph (5), where a claimant or the partner of a claimant is married polygamously to two or more members of the claimant's household—

(a)the claimant is to be treated as possessing capital and income belonging to each such member; and

(b)the income and capital of that member is to be calculated in accordance with the following provisions of this Part in like manner as for the claimant.

(4) Where at least one member of a couple is aged less than 18 and the applicable amount of the couple falls to be determined under paragraph 1(3)(e), (f), (g), (h) or (i) of Schedule 4 (amounts), the income of the claimant's partner is not to be treated as the income of the claimant to the extent that—

(a)in the case of a couple where both members are aged less than 18, the amount specified in paragraph 1(3)(c) of that Schedule exceeds the amount specified in paragraph 1(3)(i) of that Schedule; and

(b)in the case of a couple where only one member is aged less than 18, the amount specified in paragraph 1(3)(a) of that Schedule exceeds the amount which is specified in paragraph 1(3)(h) of that Schedule.

(5) Where a member of a polygamous marriage is a partner aged less than 18 and the amount which applies in respect of that partner under regulation 68(2) (polygamous marriages) is nil, the claimant is not to be treated as possessing the income of that partner to the extent that an amount in respect of that partner would have been included in the applicable amount if the partner had fallen within the circumstances set out in regulation 68(2)(a) or (b).

Income of participants in the self-employment routeE+W+S

84.  Chapters 2, 3, 4, 6, 8 and 9 of this Part and regulations 132 to 137, 142 and 143 do not apply to any income which is to be calculated in accordance with Chapter 5 of this Part (participants in the self-employment route).

F407... liable relative paymentsE+W+S

85.  Regulations 91 to 109, 111 to 117 and Chapter 10 of this Part do not apply to any payment which is to be calculated in accordance with Chapter 8 of this Part ([F408... liable relative payments]).

Textual Amendments

F407Words in reg. 85 heading omitted (for specified purposes and with effect in accordance with reg. 1(6) of the amending S.I.) by virtue of The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2009 (S.I. 2009/2655), regs. 1(6)(c), 11(4)

Child supportE+W+S

F40986.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Calculation of income and capital of studentsE+W+S

87.  The provisions of Chapters 2 to 7 of this Part (income and capital) are to have effect in relation to students and their partners subject to the modifications set out in Chapter 10 of this Part (students).

Calculation of income which consists of earnings of participants in exempt workE+W+S

88.  Notwithstanding the other provisions of this Part, regulations 91(2), 92 to 99 and 108(3) and (4) and Schedule 7 (sums to be disregarded in the calculation of earnings) are to apply to any income which consists of earnings which is to be calculated for the purposes of regulations 45(2) to (4) (exempt work – earnings limits).

Calculation of income where pension payments, PPF periodic payments or councillor's allowance payableE+W+S

89.  Notwithstanding the other provisions of this Part, regulation 94(1) and (6) is to apply for the purposes of calculating the amount of any pension payments, PPF periodic payments or councillor's allowance to which Chapter 2 of Part 9 (deductions from the contributory allowance) applies.

CHAPTER 2E+W+SIncome

Calculation of incomeE+W+S

90.—(1) For the purposes of paragraph 6(1) of Schedule 1 to the Act (conditions of entitlement to an income-related allowance), the income of a claimant is to be calculated on a weekly basis—

(a)by determining in accordance with this Part, other than Chapter 7, the weekly amount of the claimant's income; and

(b)by adding to that amount the weekly income calculated under regulation 118 (calculation of tariff income from capital).

(2) For the purposes of paragraph (1) “income” includes capital treated as income under regulation 105 (capital treated as income) and income which a claimant is treated as possessing under regulations 106 to 109 (notional income).

(3) For the purposes of paragraph 10 of Schedule 2 to the Act (effect of work), the income which consists of earnings of a claimant is to be calculated on a weekly basis by determining the weekly amount of those earnings in accordance with regulations 91(2), 92 to 99 and 108(3) and (4) and Schedule 7.

(4) For the purposes of paragraph (3), “income which consists of earnings” includes income which a claimant is treated as possessing under regulation 108(3) and (4).

(5) For the purposes of pension payments, PPF periodic payments and a councillor's allowance to which section 3 of the Act applies, the income other than earnings of a claimant is to be calculated on a weekly basis by determining in accordance with regulation 94(1), (2), (5) and (6) the weekly amount of the pension payments, PPF periodic payment or a councillor's allowance paid to the claimant.

Calculation of earnings derived from employed earner's employment and income other than earningsE+W+S

91.—(1) Earnings derived from employment as an employed earner and income which does not consist of earnings are to be taken into account over a period determined in accordance with the following provisions of this regulation and at a weekly amount determined in accordance with regulation 94 (calculation of weekly amount of income).

(2) Subject to the following provisions of this regulation, the period over which a payment is to be taken into account is to be—

(a)where the payment is monthly, a period equal to the number of weeks from the date on which the payment is treated as paid to the date immediately before the date on which the next monthly payment would have been so treated as paid whether or not the next monthly payment is actually paid;

(b)where the payment is in respect of a period which is not monthly, a period equal to the length of the period for which payment is made;

(c)in any other case, a period equal to such number of weeks as is equal to the number obtained (and any fraction is to be treated as a corresponding fraction of a week) by dividing—

(i)the net earnings; or

(ii)in the case of income which does not consist of earnings, the amount of that income less any amount paid by way of tax on that income which is disregarded under paragraph 1 of Schedule 8 (income other than earnings to be disregarded),

by the amount of an [F410employment and support] allowance which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from that payment under Schedule 7 (earnings to be disregarded) or, as the case may be, any paragraph of Schedule 8 other than paragraph 1 of that Schedule, as is appropriate in the claimant's case,

and that period is to begin on the date on which the payment is treated as paid under regulation 93 (date on which income is treated as paid).

(3) The period over which a Career Development Loan, which is paid pursuant to section 2 of the Employment and Training Act 1973 F411, is to be taken into account is the period of education and training intended to be supported by that loan.

(4) Where grant income as defined in Chapter 10 of this Part has been paid to a claimant who ceases to be a full-time student before the end of the period in respect of which that income is payable and, as a consequence, the whole or part of that income falls to be repaid by that claimant, that income is to be taken into account over the period beginning on the date on which that income is treated as paid under regulation 93 (date on which income is treated as paid) and ending—

(a)on the date on which repayment is made in full;

(b)where the grant is paid in instalments, on the day before the next instalment would have been paid had the claimant remained a full-time student; or

(c)on the last date of the academic term or vacation during which that claimant ceased to be a full-time student,

whichever is the earlier.

[F412[F413(4A) (a) This paragraph applies where earnings are derived by a claimant as a member of a reserve force prescribed in Part 1 of Schedule 6 to the Contributions Regulations—

(i)in respect of a period of annual continuous training for a maximum of 15 days in any calendar year; or

(ii)in respect of training in the claimant’s first year of training as a member of a reserve force for a maximum of 43 days in that year.

(b)Earnings, whether paid to the claimant alone or together with other earnings derived from the same source, are to be taken into account—

(i)in the case of a period of training which lasts for the number of days listed in column 1 of the table in sub-paragraph (c), over a period of time which is equal to the number of days set out in the corresponding row in column 2 of that table; or

(ii)in any other case, over a period which is equal to the duration of the training period.

(c)This is the table referred to in sub-paragraph (b)(i)—

Column 1

Period of training in days

Column 2

Period of time over which earnings are to be taken into account in days

8 to 107
15 to 1714
22 to 2421
29 to 3128
36 to 3835
4342]

(4B) The period over which earnings to which paragraph (4A) applies are to be taken into account shall begin on the date on which the payment is treated as paid under regulation 93.]

(5) Where, but for this paragraph—

(a)earnings not of the same kind are derived from the same source; and

(b)the periods in respect of which those earnings would fall to be taken into account overlap, wholly or partly,

those earnings are to be taken into account over a period equal to the aggregate length of those periods and that period is to begin with the earliest date on which any part of those earnings would otherwise be treated as paid under regulation 93.

(6) In a case to which paragraph (5) applies, earnings under regulation 95 (earnings of employed earners) are to be taken into account in the following order of priority—

(a)earnings normally derived from the employment;

(b)any payment to which paragraph (1)(b) or (c) of that regulation applies;

(c)any payment to which paragraph (1)(j) of that regulation applies;

(d)any payment to which paragraph (1)(d) of that regulation applies.

(7) Where earnings to which regulation 95(1)(b) to (d) applies are paid in respect of part of a day, those earnings are to be taken into account over a period equal to a day.

(8) Any earnings to which regulation 95(1)(j) applies which are paid in respect of, or on the termination of, part-time employment, are to be taken into account over a period equal to one week.

(9) In this regulation “part-time employment” means, if the claimant were entitled to income support, employment in which the claimant is not to be treated as engaged in remunerative work under regulation 5 or 6(1) and (4) of the Income Support Regulations (persons treated, or not treated, as engaged in remunerative work);

(10) For the purposes of this regulation the claimant's earnings and income which does not consist of earnings are to be calculated in accordance with Chapters 3 and 6 respectively of this Part.

Textual Amendments

Calculation of earnings of self-employed earnersE+W+S

92.—(1) Except where paragraph (2) applies, where a claimant's income consists of earnings from employment as a self-employed earner the weekly amount of the claimant's earnings is to be determined by reference to the claimant's average weekly earnings from that employment—

(a)over a period of one year; or

(b)where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period as may, in any particular case, enable the weekly amount of the claimant's earnings to be determined more accurately.

[F414(2) (a) Where the claimant's earnings consist of any items to which this paragraph applies those earnings shall be taken into account over a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the earnings by the amount of employment and support allowance which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from the payment under Schedule 7 (earnings to be disregarded) as is appropriate in the claimant's case;

(b)This paragraph applies to—

(i)royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or

(ii)any payment in respect of any book registered under the Public Lending Right Scheme 1982 or work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,

where the claimant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work concerned.]

(3) For the purposes of this regulation the claimant's earnings are to be calculated in accordance with Chapter 4 of this Part.

Textual Amendments

F414Reg. 92(2) substituted (for specified purposes and with effect in accordance with reg. 1(4) of the amending S.I.) by The Social Security (Miscellaneous Amendments) Regulations 2009 (S.I. 2009/583), reg. 10(4)

Date on which income is treated as paidE+W+S

93.—(1) Except where paragraph (2) F415... applies, a payment of income to which regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings) applies is to be treated as paid—

(a)in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;

(b)in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.

(2) Employment and support allowance, income support, jobseeker's allowance, maternity allowance, short-term or long-term incapacity benefit, [F416severe disablement allowance or universal credit] is to be treated as paid on [F417on any day] in respect of which it is payable.

F418(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F419(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Calculation of weekly amount of incomeE+W+S

94.—(1) For the purposes of regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings) and Chapter 2 of Part 9 (deductions from contributory allowance), subject to paragraphs (2) to (8), where the period in respect of which a payment is made—

(a)does not exceed a week, the weekly amount is to be the amount of that payment;

(b)exceeds a week, the weekly amount is to be determined—

(i)in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii)in a case where that period is 3 months, by multiplying the amount of the payment by 4 and dividing the product by 52;

[F420(iii)in a case where that period is a year and the payment is an award of working tax credit, by dividing the payment by the number of days in the year and multiplying the result by 7;]

[F420(iiia)in a case where that period is a year and the payment is income other than an award of working tax credit, by dividing the amount of the payment by 52;]

(iv)in any other case by multiplying the amount of the payment by 7 and dividing the product by the number equal to the number of days in the period in respect of which it is made.

(2) Where a payment for a period not exceeding a week is treated under regulation 93(1)(a) (date on which income is treated as paid) as paid before the first benefit week and a part is to be taken into account for some days only in that week (the relevant days), the amount to be taken into account for the relevant days is to be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(3) Where a payment is in respect of a period equal to or in excess of a week and a part thereof is to be taken into account for some days only in a benefit week (the relevant days), the amount to be taken into account for the relevant days is, except where paragraph (4) applies, to be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(4) In the case of a payment of—

(a)maternity allowance, short-term or long-term incapacity benefit or severe disablement allowance, the amount to be taken into account for the relevant days is to be the amount of benefit payable in respect of those days;

(b)an employment and support allowance, income support or a jobseeker's allowance, the amount to be taken into account for the relevant days is to be calculated by multiplying the weekly amount of the benefit by the number of relevant days and dividing the product by 7.

(5) Except in the case of a payment which it has not been practicable to treat under regulation 93(1)(b) (date on which income is treated as paid) as paid on the first day of the benefit week in which it is due to be paid, where a payment of income from a particular source is or has been paid regularly and that payment falls to be taken into account in the same benefit week as a payment of the same kind and from the same source, the amount of that income to be taken into account in any one benefit week is not to exceed the weekly amount determined under paragraph (1)(a) or (b) of the payment which under regulation 93(1)(b) is treated as paid first.

(6) Where the amount of the claimant's income fluctuates and has changed more than once, or a claimant's regular pattern of work is such that the claimant does not work every week, the foregoing paragraphs may be modified so that the weekly amount of the claimant's income is determined by reference to the claimant's average weekly income—

(a)if there is a recognisable cycle of work, over the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences);

(b)in any other case, over a period of 5 weeks or such other period as may, in the particular case, enable the claimant's average weekly income to be determined more accurately.

(7) Where income is taken into account under paragraph (4) of regulation 91 over the period specified in that paragraph, the amount of that income to be taken into account in respect of any week in that period is to be an amount equal to the amount of that income which would have been taken into account under regulation 132 (calculation of grant income) had the person to whom that income was paid not ceased to be a full-time student.

(8) Where any payment of earnings is taken into account under [F421paragraph (8)] of regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings), over the period specified in that paragraph, the amount to be taken into account is to be equal to the amount of the payment.

Textual Amendments

F420Reg. 94(1)(b)(iii)(iiia) substituted for reg. 94(1)(b)(iii) (6.4.2009) by The Social Security (Miscellaneous Amendments) Regulations 2009 (S.I. 2009/583), regs. 1(2), 10(6)

CHAPTER 3E+W+SEmployed earners

Earnings of employed earnersE+W+S

95.—(1) Subject to [F422paragraphs (2) and (3)], “earnings” means, in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—

(a)any bonus or commission;

(b)any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of the claimant's employment by reason of redundancy;

(c)any payment in lieu of notice;

(d)any holiday pay except any payable more than 4 weeks after the termination or interruption of employment;

(e)any payment by way of a retainer;

(f)any payment made by the claimant's employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant's employer in respect of—

(i)travelling expenses incurred by the claimant between the claimant's home and place of employment;

(ii)expenses incurred by the claimant under arrangements made for the care of a member of the claimant's family owing to the claimant's absence from home;

(g)any award of compensation made under section 112(4) or 117(3)(a) of the Employment Rights Act 1996 F423 (the remedies: orders and compensation, enforcement of order and compensation);

(h)any payment or remuneration made under [F424section] 28, 34, 64, 68 [F425or] 70 of the Employment Rights Act 1996 F426 (right to guarantee payments, remuneration on suspension on medical or maternity grounds, complaints to employment tribunals);

(i)any such sum as is referred to in section 112(3) of the Contributions and Benefits Act F427 (certain sums to be earnings for social security purposes);

(j)where a payment of compensation is made in respect of employment which is part-time employment, the amount of the compensation;

(k)the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person's earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001 F428.

(2) “Earnings” are not to include—

(a)subject to paragraph (3), any payment in kind;

(b)any remuneration paid by or on behalf of an employer to the claimant in respect of a period throughout which the claimant is on maternity leave, paternity leave[F429, shared parental leave][F430, parental bereavement leave] or adoption leave or is absent from work because the claimant is ill;

(c)any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(d)any occupational pension;

(e)any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme F431.

[F432(f)any payment in respect of expenses arising out of the [F433claimant participating as a service user].]

(3) Paragraph (2)(a) is not to apply in respect of any non-cash voucher referred to in paragraph (1)(k).

(4) In this regulation—

“compensation” means any payment made in respect of, or on the termination of, employment in a case where a claimant has not received or received only part of a payment in lieu of notice due or which would have been due to the claimant had that claimant not waived the right to receive it, other than—

(a)

any payment specified in paragraph (1)(a) to (i);

(b)

any payment specified in paragraph (2)(a) to [F434(f)];

(c)

any redundancy payment within the meaning of section 135(1) of the Employment Rights Act 1996;

(d)

any refund of contributions to which that person was entitled under an occupational pension scheme; and

(e)

any compensation payable by virtue of section 173 of the Education Reform Act 1988 F435;

“part-time employment” means, if the claimant were entitled to income support, employment in which the claimant is not to be treated as engaged in remunerative work under regulation 5 or 6(1) and (4) of the Income Support Regulations (persons treated, or not treated, as engaged in remunerative work).

Textual Amendments

F426Sections 34 and 70 were amended by the Employment Rights (Dispute Resolution) Act 1998 (c. 8), section 1(2)(a) and (b) and section 64 was amended by S.I. 1999/3232, regulation 41(1) and paragraph 2 of Schedule 9.

F427Section 112(3) was amended by the Employment Rights Act 1996, paragraph 51(4)(a) to (c) of Schedule 1.

F428S.I. 2001/1004, the relevant amending instruments are S.I. 2001/2412, S.I. 2002/307, S.I. 2003/2958, S.I. 2004/770, S.I. 2005/778, S.I. 2006/883, S.I. 2006/2003 and S.I. 2007/2091.

F432Reg. 95(2)(f) added (for specified purposes and with effect in accordance with reg. 1(2) of the amending S.I.) by The Social Security (Miscellaneous Amendments) (No. 4) Regulations 2009 (S.I. 2009/2655), regs. 1(2)(d), 11(6)

Calculation of net earnings of employed earnersE+W+S

96.—(1) For the purposes of regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings) the earnings of a claimant derived from employment as an employed earner to be taken into account, subject to paragraph (2), are the claimant's net earnings.

(2) There is to be disregarded from a claimant's net earnings, any sum, where applicable, specified in paragraphs 1 to 12 of Schedule 7 (sums to be disregarded in the calculation of earnings).

(3) For the purposes of paragraph (1) net earnings are to be calculated by taking into account the gross earnings of the claimant from that employment less—

(a)any amount deducted from those earnings by way of—

(i)income tax;

(ii)primary Class 1 contributions under section 6(1)(a) of the Contributions and Benefits Act F436;

(b)one-half of any sum paid by the claimant in respect of a pay period by way of a contribution towards an occupational or personal pension scheme.

Textual Amendments

F436Section 6 was substituted by the Welfare Reform and Pensions Act 1999 (c. 30), section 73 and paragraph 2 of Schedule 9.

CHAPTER 4E+W+SSelf-employed earners

Earnings of self-employed earnersE+W+S

97.—(1) Subject to paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross receipts of the employment and include any allowance paid under section 2 of the Employment and Training Act 1973 F437 or section 2 of the Enterprise and New Towns (Scotland) Act 1990 F438 to the claimant for the purpose of assisting the claimant in carrying on the claimant's business.

(2) “Earnings” do not include—

(a)where a claimant is involved in providing board and lodging accommodation for which a charge is payable, any payment by way of such a charge;

(b)any payment to which paragraph [F43928, 29 or 29A] of Schedule 8 refers (payments in respect of a person accommodated with the claimant under an arrangement made by a local authority or voluntary organisation[F440, payments] made to the claimant by a health authority, local authority or voluntary organisation in respect of persons temporarily in the claimant's care) [F441and any payments made to a claimant under section 73(1)(b) of the Children and Young People (Scotland) Act 2014 (kinship care assistance)];

[F442(ba)any payment made in accordance with section 26A of the Children (Scotland) Act 1995 (duty to provide continuing care)—

(i)to a claimant; or

(ii)where paragraph (3) applies, to another person (“A”) which A passes on to the claimant;]

(c)any sports award.

[F443(3) This paragraph applies only where A—

(a)was formerly in the claimant’s care;

(b)is aged 16 or over; and

(c)continues to live with the claimant.]

Textual Amendments

Calculation of net profit of self-employed earnersE+W+S

98.—(1) For the purposes of regulation 92 (calculation of earnings of self-employed earners), the earnings of a claimant to be taken into account are to be—

(a)in the case of a self-employed earner who is engaged in employment on that self-employed earner's own account, the net profit derived from that employment;

(b)in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975 F444, that self-employed earner's share of the net profit derived from that employment less—

(i)an amount in respect of income tax and of National Insurance contributions payable under the Contributions and Benefits Act calculated in accordance with regulation 99 (deduction of tax and contributions for self-employed earners); and

(ii)one half of any premium paid in the period that is relevant under regulation 92 (calculation of earnings of self-employed earners) in respect of a personal pension scheme.

(2) There is to be disregarded from a claimant's net profit any sum, where applicable, specified in paragraphs 1 to 11 of Schedule 7.

(3) For the purposes of paragraph (1)(a) the net profit of the employment, except where paragraph (9) applies, is to be calculated by taking into account the earnings of the employment over the period determined under regulation 92 less—

(a)subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed in that period for the purposes of that employment;

(b)an amount in respect of—

(i)income tax; and

(ii)National Insurance contributions payable under the Contributions and Benefits Act,

calculated in accordance with regulation 99 (deduction of tax and contributions for self-employed earners); and

(c)one half of any premium paid in the period that is relevant under regulation 92 in respect of a personal pension scheme.

(4) For the purposes of paragraph (1)(b), the net profit of the employment is to be calculated by taking into account the earnings of the employment over the period determined under regulation 92 less, subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed in that period for the purpose of that employment.

(5) Subject to paragraph (6), a deduction is not to be made under paragraph (3)(a) or (4) in respect of—

(a)any capital expenditure;

(b)the depreciation of any capital asset;

(c)any sum employed or intended to be employed in the setting up or expansion of the employment;

(d)any loss incurred before the beginning of the period determined under regulation 92 (calculation of earnings of self-employed earners);

(e)the repayment of capital on any loan taken out for the purposes of the employment;

(f)any expenses incurred in providing business entertainment.

(6) A deduction is to be made under paragraph (3)(a) or (4) in respect of the repayment of capital on any loan used for—

(a)the replacement in the course of business of equipment or machinery; and

(b)the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.

(7) The Secretary of State will refuse to make a deduction in respect of any expenses under paragraph (3)(a) or (4) where the Secretary of State is not satisfied that the expense has been defrayed or, having regard to the nature of the expense and its amount, that it has been reasonably incurred.

(8) For the avoidance of doubt—

(a)a deduction is not to be made under paragraph (3)(a) or (4) in respect of any sum unless it has been expended for the purposes of the business;

(b)a deduction is to be made thereunder in respect of—

(i)the excess of any VAT paid over VAT received in the period determined under regulation 92;

(ii)any income expended in the repair of an existing asset except to the extent that any sum is payable under an insurance policy for its repair;

(iii)any payment of interest on a loan taken out for the purposes of the employment.

(9) Where a claimant is engaged in employment as a child minder the net profit of the employment is to be one-third of the earnings of that employment, less—

(a)an amount in respect of—

(i)income tax; and

(ii)National Insurance contributions payable under the Contributions and Benefits Act,

calculated in accordance with regulation 99 (deduction of tax and contributions for self-employed earners); and

(b)one half of any premium paid in respect of a personal pension scheme.

(10) Notwithstanding regulation 92 (calculation of earnings of self-employed earners) and the foregoing paragraphs, the Secretary of State may assess any item of a claimant's income or expenditure over a period other than that determined under regulation 92 as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.

(11) For the avoidance of doubt where a claimant is engaged in employment as a self-employed earner and that claimant is also engaged in one or more other employments as a self-employed or employed earner any loss incurred in any one of the claimant's employments is not to be offset against the claimant's earnings in any other of the claimant's employments.

Textual Amendments

Deduction of tax and contributions for self-employed earnersE+W+S

99.—(1) Subject to paragraph (2), the amount to be deducted in respect of income tax under regulation 98(1)(b)(i), (3)(b)(i) or (9)(a)(i) (calculation of net profit of self-employed earners) is to be calculated on the basis of the amount of chargeable income and as if that income were assessable to income tax at the F445... [F446basic rate, or in the case of a Scottish taxpayer, the Scottish basic rate, of tax less only the personal reliefs to which the claimant is entitled under Chapters 2, 3 and 3A of Part 3 of the Income Tax Act 2007 F447 as are appropriate to the claimant’s circumstances].

(2) If the period determined under regulation 92 is less than a year the earnings to which the [F448basic rate][F449, or the Scottish basic rate,] of tax is to be applied and the amount of the personal reliefs deductible under [F450paragraph (1) are] to be calculated on a pro rata basis.

(3) The amount to be deducted in respect of National Insurance contributions under regulation 98(1)(b)(i), (3)(b)(ii) or (9)(a)(ii) is to be the total of—

F451(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the amount of Class 4 contributions (if any) which would be payable under section 15 of that Act F452 (Class 4 contributions recoverable under the Income Tax Acts) at the percentage rate applicable at the date of claim on so much of the chargeable income as exceeds the lower limit but does not exceed the upper limit of profits and gains applicable for the tax year in which the date of claim falls; but if the assessment period is less than a year, those limits are to be reduced pro rata.

(4) In this regulation “chargeable income” means—

(a)except where sub-paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (3)(a) or, as the case may be, (4) of regulation 98;

(b)in the case of employment as a child minder, one-third of the earnings of that employment.

Textual Amendments

F452Section 15 was amended by the Income Tax (Trading and Other Income) Act 2005 (c. 5), sections 882(1) and 884 and paragraphs 419 and 420(1), (2)(a), (c) and (d), (3) and (4) of Schedule 1 and Schedule 3, the National Insurance Contributions Act 2002 (c. 19), section 3(1), the Limited Liability Partnerships Act 2000 (c. 12), section 13 and S.I. 2007/1052, article 4(a) and (b).

CHAPTER 5E+W+SParticipants in the self-employment route

InterpretationE+W+S

100.  In this Chapter “special account” means, where a claimant was carrying on a commercial activity in respect of which assistance is received under the self-employment route, the account into which the gross receipts from that activity were payable during the period in respect of which such assistance was received.

Treatment of gross receipts of participants in the self-employment routeE+W+S

101.  The gross receipts of a commercial activity carried on by a claimant in respect of which assistance is received under the self-employment route, are to be taken into account in accordance with the following provisions of this Chapter.

Calculation of income of participants in the self-employment routeE+W+S

102.—(1) The income of a claimant who has received assistance under the self-employment route is to be calculated by taking into account the whole of the monies in the special account at the end of the last day on which such assistance was received and deducting from those monies—

(a)an amount in respect of income tax calculated in accordance with regulation 103 (deduction in respect of tax for participants in the self-employment route); and

(b)any sum to which paragraph (4) refers.

(2) Income calculated pursuant to paragraph (1) is to be apportioned equally over a period which starts on the date the income is treated as paid under paragraph (3) and is equal in length to the period beginning with the day on which assistance was first received under the self-employment route and ending on the last day on which such assistance was received.

(3) Income calculated pursuant to paragraph (1) is to be treated as paid—

(a)in the case where it is due to be paid before the first benefit week in respect of which the participant or the participant's partner first claims an income-related allowance following the last day on which assistance was received under the self-employment route, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b)in any other case, on the first day of the benefit week in which it is due to be paid.

(4) This paragraph refers, where applicable in each benefit week in respect of which income calculated pursuant to paragraph (1) is taken into account pursuant to paragraphs (2) and (3), to the sums which would have been disregarded under paragraph 7(1) of Schedule 7 had the income been earnings.

Deduction in respect of tax for participants in the self-employment routeE+W+S

103.—(1) The amount to be deducted in respect of income tax under regulation 102(1)(a) (calculation of income of participants in the self-employment route) in respect of the period determined under regulation 102(2) is to be calculated as if—

(a)the chargeable income is the only income chargeable to tax;

[F453(b)the personal reliefs applicable to the person receiving assistance under the self-employment route under Chapters 2, 3 and 3A of Part 3 of the Income Tax Act 2007 are allowable against that income;]

(c)the rate at which the chargeable income less the [F454personal reliefs] is assessable to income tax is the F455... basic rate[F456, or in the case of a Scottish taxpayer, the Scottish basic rate,] of tax.

(2) For the purpose of paragraph (1), the [F457basic rate, or the Scottish basic rate, of tax to be applied and the amount of personal reliefs deductible are], where the period determined under regulation 102(2) is less than a year, to be calculated on a pro rata basis.

(3) In this regulation, “chargeable income” means the monies in the special account at the end of the last day upon which assistance was received under the self-employment route.

Textual Amendments

CHAPTER 6E+W+SOther income

Calculation of income other than earningsE+W+S

104.—(1) For the purposes of regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings) F458... the income of a claimant which does not consist of earnings to be taken into account will, subject to paragraphs (2) to (7), be the claimant's gross income and any capital treated as income under regulation 105 (capital treated as income).

(2) There is to be disregarded from the calculation of a claimant's gross income under paragraph (1), any sum, where applicable, specified in Schedule 8.

(3) Where the payment of any benefit under the benefit Acts is subject to any deduction by way of recovery the amount to be taken into account under paragraph (1) is to be the gross amount payable.

(4) [F459Paragraphs (5) and (5A) apply] where—

(a)a relevant payment has been made to a claimant in an academic year; and

(b)that claimant abandons, or is dismissed from, that claimant's course of study before the payment to the claimant of the final instalment of the relevant payment.

(5) [F460Where a relevant payment is made quarterly, the] amount of a relevant payment to be taken into account for the assessment period for the purposes of paragraph (1) in respect of a claimant to whom paragraph (4) applies, is to be calculated by applying the formula—

where—

  • A = the total amount of the relevant payment which that claimant would have received had that claimant remained a student until the last day of the academic term in which the person abandoned, or was dismissed from, the course, less any deduction under regulation 137(6) (treatment of student loans);

  • B = the number of benefit weeks from the benefit week immediately following that which includes the first day of that academic year to the benefit week immediately before that which includes the day on which the claimant abandoned, or was dismissed from, that claimant's course;

  • C = the weekly amount of the relevant payment, before the application of the £10 disregard, which would have been taken into account as income under regulation 137(3) had the claimant not abandoned or been dismissed from, the course and, in the case of a claimant who was not entitled to an income-related allowance immediately before that claimant abandoned or was dismissed from the course, had that claimant, at that time, been entitled to an income-related allowance;

  • D = the number of benefit weeks in the assessment period.

[F461(5A) Where a relevant payment is made by two or more instalments in a quarter, the amount of a relevant payment to be taken into account for the assessment period for the purposes of paragraph (1) in respect of a person to whom paragraph (4) applies, shall be calculated by applying the formula in paragraph (5) but as if—

A

=

the total amount of relevant payments which that person received, or would have received, from the first day of the academic year to the day the person abandoned the course, or was dismissed from it, less any deduction under regulation 137(6).]

(6) [F462In this regulation]—

“academic year” and “student loan” have the same meanings as for the purposes of Chapter 10 of this Part;

[F463“assessment period” means—

(a)

in a case where a relevant payment is made quarterly, the period beginning with the benefit week which includes the day on which the claimant abandoned, or was dismissed from, the course and ending with the benefit week which includes the last day of the last quarter for which an instalment of the relevant payment was payable to that claimant;

(b)

in a case where the relevant payment is made by two or more instalments in a quarter, the period beginning with the benefit week which includes the day on which the claimant abandoned, or was dismissed from, the course and ending with the benefit week which includes—

(i)

the day immediately before the day on which the next instalment of the relevant payment would have been due had the payments continued; or

(ii)

the last day of the last quarter for which an instalment of the relevant payment was payable to that claimant,

whichever of those dates is earlier;]

“quarter” for the purposes of the definition of “assessment period” in relation to an academic year means a period in that year—

(a)

beginning on 1st January and ending on 31st March;

(b)

beginning on 1st April and ending on 30th June;

(c)

beginning on 1st July and ending on 31st August; or

(d)

beginning on 1st September and ending on 31st December;

“relevant payment” means either a student loan or an amount intended for the maintenance of dependants referred to in regulation 132(6) (calculation of grant income) or both.

(7) In the case of income to which regulation 91(4) (calculation of income of former students) applies, the amount of income to be taken into account for the purposes of paragraph (1) is to be the amount of that income calculated in accordance with regulation 94(7) (calculation of weekly amount of income) and on the basis that none of that income has been repaid.

(8) Subject to paragraph (9), for the avoidance of doubt there is to be included as income to be taken into account under paragraph (1)—

(a)any payment to which regulation 95(2) or 97(2) (payments not earnings) applies; or

(b)in the case of a claimant who is receiving support provided under section 95 or 98 of the Immigration and Asylum Act F464 including support provided by virtue of regulations made under Schedule 9 to that Act, the amount of such support provided in respect of essential living needs of the claimant and the claimant's partner (if any) as is specified in regulations made under paragraph 3 of Schedule 8 to that Act.

(9) In the case of a claimant who is the partner of a person subject to immigration control and whose partner is receiving support provided under section 95 or 98 of the Immigration and Asylum Act including support provided by virtue of regulations made under Schedule 9 to that Act, there is not to be included as income to be taken into account under paragraph (1) the amount of support provided in respect of essential living needs of the partner of the claimant and the claimant's dependants (if any) as is specified in re