The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) Regulations 2010

Conversion decision that existing award does not qualify for conversion

15.—(1) Subject to paragraph (4), paragraphs (2) and (3) apply in any case where the conversion decision is a decision that a notified person’s (“P”) existing award or awards do not qualify for conversion into an employment and support allowance.

(2) P’s entitlement to one or both of—

(a) an existing award of incapacity benefit or severe disablement allowance; or

(b) an existing award of income support (being an award made to a person incapable of work or disabled),

shall terminate by virtue of this paragraph immediately before the effective date of P’s conversion decision.

(3) Where, immediately before that date, P is entitled to be credited with any earnings under regulation 8B(2)(a) of the Social Security (Credits) Regulations 1975(1) (credits for incapacity for work), P shall not be entitled to be so credited under that regulation on or after that date.

(4) Paragraph (5) applies where—

(a) a conversion decision within the meaning of regulation 5(2)(b) (“the earlier conversion decision”) is made by virtue of either of the following provisions of the 2008 Regulations (as they apply by virtue of regulation 6)–

(i) regulation 22(1) (failure to provide information or evidence requested in relation to limited capability for work), or

(ii) regulation 23(2) (failure to attend for a medical examination to determine whether the claimant has limited capability for work); and

(b) after P is notified of the earlier conversion decision, the Secretary of State is satisfied (or where the conversion decision is appealed to the First-tier Tribunal, that tribunal determines) that P had good cause for failing to–

(i) provide the information requested, or

(ii) attend for or submit to the medical examination for which P was called.

(5) Where this paragraph applies—

(a) the earlier conversion decision is treated as never having been made;

(b) any entitlement of P–

(i) to an existing award which was terminated by virtue of paragraph (2), or

(ii) to be credited with earnings which was terminated by virtue of paragraph (3),

shall be reinstated with effect from the effective date of the earlier conversion decision;

(c) the Secretary of State must make a conversion decision (“the new conversion decision”) in accordance with regulation 5 (deciding whether an existing award qualifies for conversion) in relation to the existing award or awards to which P is entitled;

(d) the notice issued under regulation 4 (notice commencing the conversion phase) has effect in relation to that existing award or those existing awards; and

(e) with the exception of regulation 4 (notice commencing the conversion phase), the remaining provisions of this Part, including this regulation, apply to the new conversion decision.

(6) Paragraphs (2) and (3) are subject to regulation 17 (changes of circumstances before the effective date).

(1)

S.I. 1975/556. Regulation 8B was inserted by SI 1996/2367 and amended by S.I. 2008/1554.