The Employment and Support Allowance Regulations 2008

CHAPTER 3 E+W+S Reduction of employment and support allowance

Reduction of employment and support allowance E+W+S

63.— [F1 (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.]

[F2 (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 [F3 work-related activity]; and

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

(c) by more than 100% of the [F4 prescribed 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 [F5 including new style ESA] which would have been payable but for any reduction made in accordance with this regulation [F6 or section 11J of the Act respectively].

[F7 (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).

[F8 (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 case	Fixed 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 failure	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 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 week	2 weeks
(b) 2 weeks	4 weeks
(c) 4 weeks	4 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 week	1 week
(b) 2 weeks	2 weeks
(c) 4 weeks	4 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); [F9 and]

(b) that failure occurred on or after 3^rd December 2012; F10 ...

F10 (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

F1 Reg. 63(1) substituted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 17(2)

F2 Reg. 63(2) substituted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(2) (with reg. 1(2))

F3 Words in reg. 63(3)(b)(i) substituted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 17(3)

F4 Words in reg. 63(3)(c) substituted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(3) (with reg. 1(2))

F5 Words in reg. 63(5) inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(4)(a)

F6 Words in reg. 63(5) inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(4)(b)

F7 Reg. 63(6)-(11) inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(4) (with reg. 1(2))

F8 Reg. 63(7) substituted (with application in accordance with reg. 2 of the amending S.I.) by The Social Security (Jobseekers Allowance, Employment and Support Allowance and Universal Credit) (Amendment) Regulations 2016 (S.I. 2016/678), regs. 1, 4(a)

F9 Word in reg. 63(8)(a) inserted (with application in accordance with reg. 2 of the amending S.I.) by The Social Security (Jobseekers Allowance, Employment and Support Allowance and Universal Credit) (Amendment) Regulations 2016 (S.I. 2016/678), regs. 1, 4(b)(i)

F10 Reg. 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 reduction E+W+S

64.— [F11 (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—

F12 (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.]

[F13 (1A) The Secretary of State must notify the person in writing—

F14 (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—

F15 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the claimant subsequently ceases to meet the requirements set out in regulation 54(2).

Textual Amendments

F11 Reg. 64(1) substituted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 18(2)

F12 Reg. 64(1)(a) omitted (3.12.2012) by virtue of The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 5 (with reg. 1(2))

F13 Reg. 64(1A) inserted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 18(3)

F14 Reg. 64(1A)(a) omitted (3.12.2012) by virtue of The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 5 (with reg. 1(2))

F15 Reg. 64(2)(a) omitted (3.12.2012) by virtue of The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 5 (with reg. 1(2))

[F16 Hardship payments E+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

F16 Regs. 64A-64D inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 6 (with reg. 1(2))

Circumstances in which a claimant is to be treated as being in hardship E+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

F16 Regs. 64A-64D inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 6 (with reg. 1(2))

Matters to be taken into account in determining hardship E+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

F16 Regs. 64A-64D inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 6 (with reg. 1(2))

The amount of a hardship payment E+W+S

64D.— [F17 (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

F16 Regs. 64A-64D inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 6 (with reg. 1(2))

F17 Reg. 64D(1) substituted (3.4.2017) by The Employment and Support Allowance (Exempt Work Hardship Amounts) (Amendment) Regulations 2017 (S.I. 2017/205), regs. 1, 5