The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013

Limited capability for work or work-related activity: transition from new style ESA

11.—(1) This article applies where—

(a) a person is entitled to an old style ESA award and they were previously entitled to a new style ESA award that was not in existence immediately before the first day on which the person in question is entitled to the old style ESA award; or

(b) article 6(2) applies in relation to a new style ESA award (such that it continues as an old style ESA award).

(2) Where this article applies, the ESA Regulations 2008 are to be read as if—

(a) (i) in the definitions of “period of limited capability for work” in regulation 2(1) and (5) (interpretation)(1), the reference to a period throughout which a person has, or is treated as having, limited capability for work included a reference to a period throughout which the person in question had, or was treated as having, limited capability for work under the ESA Regulations 2013; and

(ii) the reference, in the definition in regulation 2(1), to regulation 19 of the Claims and Payments Regulations 1987 (time for claiming benefit) included a reference to regulation 28 of the Claims and Payments Regulations 2013 (time within which a claim for an employment and support allowance is to be made);

(b) in regulation 5 (the assessment phase–previous claimants)(2)—

(i) any reference to an employment and support allowance included a reference to a new style ESA award; and

(ii) in paragraph (2)(b)(v) and (c)(iii), the reference to regulation 30 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made) included a reference to regulation 26 of the ESA Regulations 2013 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made);

(c) in regulation 7 (circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arises does not apply)(3)—

(i) any reference to an employment and support allowance included a reference to a new style ESA award; and

(ii) in paragraph (1B)(b)(iv), (c)(iii), (c)(iv) and (d)(iii), the reference to regulation 30 included a reference to regulation 26 of the ESA Regulations 2013;

(d) in regulation 10 (condition relating to youth – previous claimants), any reference to an employment and support allowance included a reference to a new style ESA award;

(e) in regulation 19 (determination of limited capability for work)(4)—

(i) the reference in paragraph (7)(a) to a claimant having been determined to have limited capability for work included a reference to such a determination made under Part 4 of the ESA Regulations 2013; and

(ii) the reference in paragraph (7)(b) to a person being treated as having limited capability for work included a reference to a person being so treated under regulation 16 (certain claimants to be treated as having limited capability for work), 21 (hospital patients), 22 (claimants receiving certain treatment) or 25 (exceptional circumstances) of the ESA Regulations 2013;

(f) in regulation 30 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made)—

(i) in the initial words of paragraph (2)(b), the reference to regulation 22 (failure to provide information in relation to limited capability for work) and 23 (claimant may be called for a medical examination to determine whether the claimant has limited capability for work) included a reference to regulation 18 (failure to provide information in relation to limited capability for work) and 19 (claimant may be called for a medical examination to determine whether the claimant has limited capability for work) of the ESA Regulations 2013; and

(ii) in paragraph (2)(b)(iii), the reference to regulation 22 included a reference to regulation 18 of the ESA Regulations 2013;

(g) in regulation 34(4) (determination of limited capability for work-related activity), the reference to a determination about whether a claimant has, or is to be treated as having or not having, limited capability for work-related activity included such a determination that was made under Part 5 of the ESA Regulations 2013; and

(h) in regulation 147A(1) (claimants appealing a decision)(5), the reference to a determination that the claimant does not have limited capability for work included a reference to such a determination under the ESA Regulations 2013.

(1)

The definition in regulation 2(1) was amended, and the definition in regulation 2(5) inserted, by S.I. 2010/840.

(2)

Regulation 5 was amended by S.I. 2010/840 and 2012/913.

(3)

Regulation 7 was amended by S.I. 2008/3051, 2010/840, 2012/874 and 2012/913.

(4)

Regulation 19 was amended by S.I. 2012/3096.

(5)

Regulation 147A was inserted by S.I. 2010/840.