The Employment and Support Allowance Regulations 2013

Meaning of “person in hardship”

94.—(1) A claimant is a “person in hardship” if the claimant—

(a) has informed the Secretary of State of the circumstances on which the claimant relies to establish that fact; and

(b) falls within paragraph (2), (3) or (5).

(2) A claimant falls within this paragraph if—

(a) she is pregnant;

(b) a member of the claimant’s family is pregnant;

(c) the claimant is single and aged less than 18; or

(d) the claimant is a member of a couple and both members are aged less than 18.

(3) Subject to paragraph (4), the claimant falls within this paragraph if the claimant or the claimant’s partner—

(a) has been awarded an attendance allowance, the care component or the daily living component;

(b) has claimed attendance allowance, disability living allowance or personal independence payment and the claim has not been determined;

(c) devotes what the Secretary of State considers is a considerable portion of each week to caring for another person who—

(i) has been awarded an attendance allowance, the care component or the daily living component; or

(ii) has claimed attendance allowance, disability living allowance or personal independence payment and the claim has not been determined; or

(d) has attained the qualifying age for state pension credit, which has the meaning given in section 1(6) of the State Pension Credit Act 2002(1).

(4) A claimant to whom paragraph (3)(b) or (3)(c)(ii) applies is a person in hardship only for 26 weeks from the date of the claim unless the claimant is a person in hardship under another provision of this regulation.

(5) The claimant falls within this paragraph where the Secretary of State is satisfied, having regard to all the circumstances and, in particular, the matters set out in paragraph (6), that unless an employment and support allowance is paid, the claimant, or a member of the claimant’s family, will suffer hardship.

(6) The matters referred to in paragraph (5) are—

(a) the resources which are likely to be available to the claimant and the claimant’s family and the length of time for which they might be available; and

(b) whether there is a substantial risk that essential items, including food, clothing and heating, will cease to be available to the claimant or a member of the claimant’s family, or will be available at considerably reduced levels and the length of time for which this might be so.

(7) In this regulation—

“attendance allowance” means—

(a)

an attendance allowance under section 64 of the Contributions and Benefits Act(2);

(b)

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

(c)

a payment under regulations made under section 111 of, and paragraph 7(2)(b) of Schedule 8 to, that Act;

(d)

an increase in allowance which is payable in respect of constant attendance under section 111 of, and paragraph 4 of Schedule 8 to, that Act;

(e)

a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983(3) or any analogous payment;

(f)

any payment based on the need for attendance which is paid as an addition to a war disablement pension (which means any retired 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 2003(4));

“care component” means the care component of disability living allowance at the highest or middle rate prescribed under section 72(3) of the Contributions and Benefits Act;

“daily living component” means the daily living component of personal independence payment at the standard or enhanced rate referred to in section 78 of the Welfare Reform Act 2012;

“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act(5);

“personal independence payment” means an allowance under Part 4 of the Welfare Reform Act 2012.

(1)

2002 c.16.

(2)

1992 c.4. Section 64 was amended by section 66(1) of the Welfare Reform and Pensions Act 1999 (c.30) and paragraph 5 of Schedule 9 to the Welfare Reform Act 2012.

(3)

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

(4)

2003 c.1. Section 639(2) was inserted by the Finance Act 2005 (c.7).

(5)

Section 71 was amended by section 67 of the Welfare Reform and Pensions Act 1999.