The Employment and Support Allowance Regulations 2013

Special cases

63.—(1) The amount prescribed for the purposes of the calculation of the amount of a claimant’s employment and support allowance under section 2(1)(a) of the Act in respect of a claimant who—

(a) satisfies either of the conditions in paragraphs (3) or (4); or

(b) has been a patient for a continuous period of more than 52 weeks,

is the amount applicable under regulation 62(1) and the amount of nil under regulation 62(2).

(2) The amount prescribed for those purposes in respect of a claimant who is a person in hardship, is the amount to which the claimant is entitled—

(a) under regulation 62(1) reduced by 20%; and

(b) under regulation 62(2).

(3) The first condition mentioned in paragraph (1)(a) is that—

(a) the claimant 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)(1); and

(b) in any case where there is in relation to the claimant a release date within the meaning of section 50(3) of that Act(2), the claimant is being detained on or before the day which the Secretary of State certifies to be that release date.

(4) The second condition mentioned in paragraph (1)(a) is that the claimant is being detained under—

(a) section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction)(3); or

(b) section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder)(4).

(5) In this regulation—

“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(5);

“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(6) or the Prisons (Scotland) Act 1989(7),

other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 or, in Scotland, under the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995(8).

(6) For the purposes of this regulation—

(a) except where sub-paragraph (b) applies, a person is a “person in hardship” if they satisfy regulation 94; and

(b) where a person satisfies regulation 94 for more than six weeks, they are a “person in hardship” only for the first six weeks.

(1)

1983 c.20. Section 45A was inserted by section 46 of the Crime (Sentences) Act 1997 (c.43). Section 45A was amended by paragraph 39 of Schedule 37 to the Criminal Justice Act 2003 (c.44) and sections 4 and 10 of, and paragraph 9 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007 (c.12). Section 47 was amended by section 4 of, and paragraph 10 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007, paragraphs 97 and 98 of Schedule 16 to the Armed Forces Act 2006 (c.52), paragraph 18 of Schedule 10 to the Domestic Violence, Crime and Victims Act 2004 (c.28) and Schedule 6 to the Crime (Sentences) Act 1997. S.I. 1999/672 transferred functions under sections 45A and 47 to the National Assembly for Wales.

(2)

Section 50(3) was substituted by section 294 of the Criminal Justice Act 2003.

(3)

1995 c.46. Section 59A was inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997 (c.48) and substituted by paragraph 8(6) of Schedule 4 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

(4)

2003 asp 13.

(5)

S.I. 2005/3360.

(6)

1952 c.52.

(7)

1989 c.45.

(8)

1995 c.46.