The Employment and Support Allowance Regulations 2013

PART 1 E+W+S General

Citation, commencement and application E+W+S

1.—(1) These Regulations may be cited as the Employment and Support Allowance Regulations 2013.

(2) They come into force on 29th April 2013.

(3) They apply in relation to a particular case on any day on which section 33(1)(b) of the Welfare Reform Act 2012 M1 (abolition of income-related employment and support allowance) is in force and applies in relation to that case.

Marginal Citations

M1 2012 c.5.

Interpretation E+W+S

2.  In these Regulations—

“the Act” means the Welfare Reform Act 2007;

“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 Technology 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 Technology Education Council or a higher or advanced higher national certificate of the Scottish Qualifications Authority or a general certificate of education (advanced level);

“benefit week” means a period of seven 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 seven days ending on—

(a)

the day before the first day of the first period of seven days which—

(i)

ends on such day as the Secretary of State may direct; and

(ii)

follows the date of claim for an employment and support allowance; or

(b)

the last day on which an employment and support allowance is paid if it is in payment for less than a week;

“carer's allowance” means an allowance under section 70 of the Contributions and Benefits Act M2 ;

[F1 “carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023;]

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

“Claims and Payments Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 M3 ;

“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;

“confinement” has the meaning given to it by section 171(1) of the Contributions and Benefits Act M4 ;

“councillor” means—

(a)

in relation to England and Wales, a member of a London borough council, a county council, a 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 M5 ;

“councillor's allowance” means—

(a)

in England, an allowance under or by virtue of—

(i)

section 173 or 177 of the Local Government Act 1972 M6 ; or

(ii)

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 M7 ,

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

(b)

in 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; or

(c)

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)

section 11 of the Local Governance (Scotland) Act 2004 M8 ;

[F2 [F3 “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 [F4 as if they were a married couple or civil partners];]]

“Decisions and Appeals Regulations 1999” means the Social Security and Child Support (Decisions and Appeals) Regulations 1999 M9 ;

“Decisions and Appeals Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 M10 ;

“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;

“employed earner” is to be construed in accordance with section 2(1)(a) of the Contributions and Benefits Act M11 ;

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

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

“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 M12 ;

“First-tier Tribunal” has the meaning given by section 3(1) of the Tribunals, Courts and Enforcement Act 2007 M13 ;

“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 1999 M14 ;

“Health Service Act” means the National Health Service Act 2006 M15 ;

“Health Service (Wales) Act” means the National Health Service (Wales) Act 2006 M16 ;

“Income Support Regulations” means the Income Support (General) Regulations 1987 M17 ;

“limited capability for work assessment” means the assessment described in regulation 15(2) and in Schedule 2;

“Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations 1976 M18 ;

“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,

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

[F5 “member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either—

(a)

Part 5 of the Employment and Support Allowance Regulations 2008 other than by virtue of regulation 30 of those Regulations; or

(b)

Part 4 of these Regulations other than by virtue of regulation 26;]

“National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 M19 (rate of the national minimum wage);

“net earnings” means such earnings as are calculated in accordance with regulation 81;

“occupational pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993 M20 ;

“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) M21 ;

“partner” means—

(a)

where a claimant is a member of a couple, the other member of that couple; or

(b)

where a claimant 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;

“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;

“period of limited capability for work” means, except in regulation 3(2), a period throughout which a person has, or is treated as having, limited capability for work under these Regulations, and does not include a period which is outside the prescribed time for claiming as specified in regulation 28 of the Claims and Payments Regulations 2013;

“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;

“personal pension scheme” means—

(a)

a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993 M22 ;

(b)

an annuity contract, trust scheme or substituted contract 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 M23 ;

(c)

a personal pension scheme 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;

“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;

“qualifying young person” has the meaning given by section 142 of the Contributions and Benefits Act (child and qualifying young person) M24 ;

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

“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;

“state pension credit” means a state pension credit under the State Pension Credit Act 2002 M25 ;

“Tax Credits Act” means the Tax Credits Act 2002 M26 ;

“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 [F6 12 months];

“training” means—

(a)

training in pursuance of arrangements made under section 2(1) of the Employment and Training Act 1973 M27 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990 M28 ; 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, Skills Development Scotland, Scottish Enterprise, Highlands and Islands Enterprise F7 ... 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 provided or approved by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise, 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;

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

“week” means a period of seven days except in relation to regulation 22;

“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 M29 (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).

Textual Amendments

F1 Words in reg. 2 inserted (19.11.2023) by The Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023 (Consequential Amendments) Order 2023 (S.I. 2023/1218), arts. 1(2), 25(2)

F2 Words in reg. 2 substituted (E.W.) (13.3.2014) by The Marriage (Same Sex Couples) Act 2013 (Consequential Provisions) Order 2014 (S.I. 2014/107), art. 1(2), Sch. 1 para. 55

F3 Words in reg. 2 substituted (S.) (16.12.2014) by The Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order 2014 (S.I. 2014/3229), art. 1(2), Sch. 6 para. 34

F4 Words in reg. 2 substituted (2.12.2019) by The Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458), reg. 1(2), Sch. 3 para. 98

F5 Words in reg. 2(1) inserted (3.4.2017) by The Employment and Support Allowance and Universal Credit (Miscellaneous Amendments and Transitional and Savings Provisions) Regulations 2017 (S.I. 2017/204), regs. 1, 3(2) (with Sch. 2 paras. 1-7)

F6 Words in reg. 2 substituted (4.4.2022) by The Universal Credit and Employment and Support Allowance (Terminal Illness) (Amendment) Regulations 2022 (S.I. 2022/260), regs. 1(2), 2(3)

F7 Words in reg. 2 omitted (26.5.2015) by virtue of The Deregulation Act 2015 (Consequential Amendments) Order 2015 (S.I. 2015/971), art. 1(2)(a), Sch. 3 para. 26

Marginal Citations

M2 Section 70 was amended by S.I.s 1994/2556, 2002/1457 and 2011/2426.

M3 S.I. 2013/380.

M4 The definition of “confinement” in section 171(1) of the Contributions and Benefits Act was amended by section 4(2) of the Still-Birth (Definition) Act 1992.

M5 1994 c.39. Section 2 was amended by section 232(1) of the Environment Act 1995 (c.25).

M6 1972 c.70. Section 173 and 177 were repealed by the Local Government (Wales) Measure 2011. Section 173 was amended by paragraph 26 of Schedule 11 to the Local Government and Housing Act 1989 (c.42), section 24 of the Local Government, Planning and Land Act 1980 (c.42) and S.I. 1977/1710. Section 173 was modified by S.I. 2002/2899. Section 177 was amended by paragraph 28 of Schedule 11 to the Local Government and Housing Act 1989, paragraph 3 of Schedule 30 to the School Standards and Framework Act 1998 (c.31), paragraph 1 of Schedule 21 to the Education Act 2002 (c.32), paragraph 1 of Schedule 3 to the Education and Inspections Act 2006 (c.40), paragraph 42 of Schedule 1 and Schedule 2 to the Education and Skills Act 2002 (c.25) and paragraph 1 of Schedule 1 to the Education Act 2011 (c.21). Section 177 was modified by S.I.s 1985/1884, 1996/1243 and 2005/421.

M7 1989 c.42. Parts of section 18 were repealed and amended by the Local Government (Wales) Measure 2011. Section 18 was amended by section 99 of the Local Government Act 2000 (c.22), paragraph 37 of Schedule 4 to the Police and Magistrates' Court Act 1994 (c.29) and paragraph 97 of Schedule 37 to the Education Act 1996 (c.56). Section 18 was modified by paragraph 11 of Schedule 7 to the Environment Act 1995 (c.25).

M8 2004 asp 9.

M9 S.I. 1999/991.

M10 S.I. 2013/381.

M11 Section 2(1) was amended by paragraph 171 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (c.1).

M12 Paragraph 1(1) of Schedule 1 was amended by section 13(1) of the Welfare Reform Act 2009 (c.24)

M13 2007 c.15.

M14 1998 c.8. Section 60 was amended by section 26(9) of the National Health Service Reform and Health Care Professions Act 2002 (c.17), paragraph 1 of Schedule 8 and paragraph 10 of Schedule 10 to the Health and Social Care Act 2008 (c.14), sections 209, 210 and 213 of, and paragraphs 60 and 72 of Schedule 15 to, the Health and Social Care Act 2012 (c.7) and S.I.s 2002/253 and 243 and 2010/231.

M15 2006 c.41.

M16 2006 c.42.

M17 S.I. 1987/1967.

M18 S.I. 1976/615.

M19 S.I. 1999/584. Relevant amendments were made by S.I. 2012/2397.

M20 1993 c.48. Relevant amendments were made by section 239 of the Pensions Act 2004 and S.I. 2007/3014.

M21 Regulation 5 was amended by S.I.s 1988/1445 and 2022, 1989/1323, 1990/547, 1991/1559, 1993/2119, 1995/516, 1996/1944, 1998/663, 1999/2556 and 3178, 2000/681, 2001/488, 2002/2689 and 2007/2618. Regulation 6(1) and (4) was amended by S.I.s 1988/1445, 1991/1559, 1992/468 and 2155, 1994/2139, 1995/516, 1999/2165, 2556 and 3156, 2000/681, 2004/963, 2009/3228 and 2010/641.

M22 Relevant amendments were made by section 239 of the Pensions Act 2004 and paragraph 23 of Schedule 20 to the Finance Act 2007 (c.11).

M23 2007 c.11.

M24 Section 142 was substituted by section 1 of the Child Benefit Act 1995 (c.6).

M25 2002 c.16.

M26 2002 c.21.

M27 1973 c.50. Section 2 was substituted by section 25 of the Employment Act 1988 (c.19).

M28 1990 c.35. Section 2(3) was amended by section 47 of, and Schedule 10 to, the Trade Union Reform and Employment Rights Act 1993 (c.19).

M29 2000 c.35. Section 6 was amended by Schedule 7 to the Welfare Reform Act 2009.

Further interpretation E+W+S

3.—(1) In these Regulations, 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.

(2) 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.

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

Rounding of fractions E+W+S

4.  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, but 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.