The Employment and Support Allowance Regulations 2008

1. Introductory Text

2. PART 1 GENERAL

   1. 1. Citation and commencement

   2. 2. Interpretation

   3. 2A. Disapplication of section 1(1A) of the Social Security Administration Act 1992

   4. 3. Rounding of fractions

3. PART 2 THE ASSESSMENT PHASE

   1. 4. The end of the assessment phase

   2. 5. The assessment phase – previous claimants

   3. 6. The assessment phase – claimants appealing against a decision

   4. 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

4. PART 3 CONDITIONS OF ENTITLEMENT – CONTRIBUTORY ALLOWANCE

   1. 7A. Conditions relating to national insurance and relevant earnings

   2. 8. Relaxation of the first contribution condition

   3. 9. Condition relating to youth – claimants aged 20 or over but under 25

   4. 10. Condition relating to youth – previous claimants

   5. 11. Condition relating to youth – residence or presence

   6. 12. Condition relating to youth – full-time education

   7. 13. Modification of the relevant benefit year

5. PART 4 CONDITIONS OF ENTITLEMENT – INCOME-RELATED ALLOWANCE

   1. 14. Meaning of education

   2. 15. Claimants to be treated as receiving education

   3. 16. Claimants not to be treated as receiving education

   4. 17. Courses of study

   5. 18. Circumstances in which the condition that the claimant is not receiving education does not apply

6. PART 5 LIMITED CAPABILITY FOR WORK

   1. 19. Determination of limited capability for work

   2. 20. Certain claimants to be treated as having limited capability for work

   3. 21. Information required for determining capability for work

   4. 22. Failure to provide information in relation to limited capability for work

   5. 23. Claimant may be called for a medical examination to determine whether the claimant has limited capability for work

   6. 24. Matters to be taken into account in determining good cause in relation to regulations 22 or 23

   7. 25. Hospital in-patients

   8. 26. Claimants receiving certain regular treatment

   9. 27. Claimant to be treated as having limited capability for work throughout a day

   10. 28. Night workers

   11. 29. Exceptional circumstances

   12. 30. Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made

   13. 31. Claimant who claims jobseeker's allowance to be treated as not having limited capability for work

   14. 32. Certain claimants to be treated as not having limited capability for work

   15. 32A. Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidence

   16. 33. Additional circumstances where claimants are to be treated as having limited capability for work

7. PART 6 LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

   1. 34. Determination of limited capability for work-related activity

   2. 35. Certain claimants to be treated as having limited capability for work-related activity

   3. 36. Information required for determining capability for work-related activity

   4. 37. Failure to provide information in relation to work-related activity

   5. 38. Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity

   6. 39. Matters to be taken into account in determining good cause in relation to regulations 37 or 38

8. PART 7 EFFECT OF WORK ON ENTITLEMENT TO AN EMPLOYMENT AND SUPPORT ALLOWANCE

   1. 40. A claimant who works to be treated as not entitled to an employment and support allowance

   2. 41. Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule 1 to the Act

   3. 42. Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule 1 to the Act

   4. 43. Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work

   5. 44. Claimants who are treated as not entitled to any allowance at all by reason of regulation 40(1) are to be treated as not having limited capability for work

   6. 45. Exempt work

   7. 46. Effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment

9. PART 8 CONDITIONALITY

   1. CHAPTER 1 Work-focused health-related assessment

      1. 47. Requirement to take part in a work-focused health-related assessment

      2. 48. Work-focused health-related assessment

      3. 49. Notification of assessment

      4. 50. Determination of the place of the work-focused health-related assessment

      5. 51. Taking part in a work-focused health-related assessment

      6. 52. Deferral of requirement to take part in a work-focused health-related assessment

      7. 53. Failure to take part in a work-focused health-related assessment

   2. CHAPTER 2 Work-focused interviews

      1. 54. Requirement to take part in a work-focused interview

      2. 55. Work-focused interview

      3. 56. Notification of interview

      4. 57. Taking part in a work-focused interview

      5. 58. Action plan

      6. 59. Deferral of requirement to take part in a work-focused interview

      7. 60. Requirement to take part in a work-focused interview not to apply

      8. 61. Failure to take part in a work-focused interview

      9. 62. Contracting out certain functions relating to work-focused interviews

   3. CHAPTER 3 Reduction of employment and support allowance

      1. 63. Reduction of employment and support allowance

      2. 64. Cessation of reduction

   4. CHAPTER 4 Notification

      1. 65. Notification under this Part

   5. CHAPTER 5 Modification of the Act in relation to claims to which section 5(1)(c) of the Administration Act applies

      1. 66. Modifications of the Act

10. PART 9 AMOUNTS OF ALLOWANCE

    1. CHAPTER 1 Prescribed amounts

       1. 67. Prescribed amounts

       2. 68. Polygamous marriages

       3. 69. Special cases

       4. 70. Special cases: supplemental – persons from abroad

       5. 71. Definition of non-dependant

    2. CHAPTER 2 Deductions from the contributory allowance

       1. 72. Permanent health insurance

       2. 72A. Financial Assistance Scheme

       3. 73. Councillor's allowance

       4. 74. Deductions for pension payment and PPF payment

       5. 75. Payments treated as not being payments to which section 3 applies

       6. 76. Deductions for councillor's allowance

       7. 77. Date from which payments are to be taken into account

       8. 78. Date from which a change in the rate of the payment takes effect

       9. 79. Calculation of payment made other than weekly

    3. CHAPTER 3 Statutory payments

       1. 80. Effect of statutory maternity pay on a contributory allowance

       2. 81. Effect of statutory adoption pay on a contributory allowance

       3. 82. Effect of additional statutory paternity pay on a contributory allowance

11. PART 10 INCOME AND CAPITAL

    1. CHAPTER 1 General

       1. 83. Calculation of income and capital of members of claimant's family and of a polygamous marriage

       2. 84. Income of participants in the self-employment route

       3. 85. ... liable relative payments

       4. 86. Child support

       5. 87. Calculation of income and capital of students

       6. 88. Calculation of income which consists of earnings of participants in exempt work

       7. 89. Calculation of income where pension payments, PPF periodic payments or councillor's allowance payable

    2. CHAPTER 2 Income

       1. 90. Calculation of income

       2. 91. Calculation of earnings derived from employed earner's employment and income other than earnings

       3. 92. Calculation of earnings of self-employed earners

       4. 93. Date on which income is treated as paid

       5. 94. Calculation of weekly amount of income

    3. CHAPTER 3 Employed earners

       1. 95. Earnings of employed earners

       2. 96. Calculation of net earnings of employed earners

    4. CHAPTER 4 Self-employed earners

       1. 97. Earnings of self-employed earners

       2. 98. Calculation of net profit of self-employed earners

       3. 99. Deduction of tax and contributions for self-employed earners

    5. CHAPTER 5 Participants in the self-employment route

       1. 100. Interpretation

       2. 101. Treatment of gross receipts of participants in the self-employment route

       3. 102. Calculation of income of participants in the self-employment route

       4. 103. Deduction in respect of tax for participants in the self-employment route

    6. CHAPTER 6 Other income

       1. 104. Calculation of income other than earnings

       2. 105. Capital treated as income

       3. 106. Notional income – deprivation and income on application

       4. 107. Notional income – income due to be paid or income paid to or in respect of a third party

       5. 108. Notional income – other income

       6. 109. Notional income – calculation and interpretation

    7. CHAPTER 7 Capital

       1. 110. Capital limit

       2. 111. Calculation of capital

       3. 112. Income treated as capital

       4. 113. Calculation of capital in the United Kingdom

       5. 114. Calculation of capital outside the United Kingdom

       6. 115. Notional capital

       7. 116. Diminishing notional capital rule

       8. 117. Capital jointly held

       9. 118. Calculation of tariff income from capital

    8. CHAPTER 8 ... liable relative payments

       1. 119. Interpretation

       2. 120. Treatment of ... liable relative payments

       3. 121. Disregard of payments treated as not relevant income

       4. 122. Period over which periodical payments are to be taken into account

       5. 123. Period over which payments other than periodical payments are to be taken into account

       6. 124. Calculation of the weekly amount of a ... liable relative payment

       7. 125. Date on which a ... liable relative payment is to be treated as paid

       8. 126. Liable relative payments to be treated as capital

    9. CHAPTER 9 Child support

       1. 127. . . . . . . . . . ....

       2. 128. . . . . . . . . . ....

       3. 129. . . . . . . . . . ....

       4. 130. . . . . . . . . . ....

    10. CHAPTER 10 Students

        1. 131. Interpretation

        2. 132. Calculation of grant income

        3. 133. Calculation of covenant income where a contribution is assessed

        4. 134. Calculation of covenant income where no grant income or no contribution is assessed

        5. 135. Relationships with amounts to be disregarded under Schedule 8

        6. 136. Other amounts to be disregarded

        7. 137. Treatment of student loans

        8. 138. Treatment of payments from access funds

        9. 139. Treatment of fee loans

        10. 140. Disregard of contribution

        11. 141. Further disregard of student's income

        12. 142. Income treated as capital

        13. 143. Disregard of changes occurring during summer vacation

12. PART 11 SUPPLEMENTARY PROVISIONS

    1. CHAPTER 1 Miscellaneous

       1. 144. Waiting days

       2. 145. Linking rules

       3. 146. Advance awards

       4. 147. Recovery orders

       5. 147A. Claimants appealing a decision

    2. CHAPTER 2 Work or training beneficiaries

       1. 148. Work or training beneficiaries

       2. 149. Linking rules – limited capability for work

       3. 150. Linking rules – limited capability for work-related activity

    3. CHAPTER 3 Temporary absence from Great Britain

       1. 151. Absence from Great Britain

       2. 152. Short absence

       3. 153. Absence to receive medical treatment

       4. 154. Absence in order to receive NHS treatment

       5. 155. Absence of member of family of member of Her Majesty's forces

    4. CHAPTER 4 Membership of household

       1. 156. Circumstances in which a person is to be treated as being or not being a member of the household

13. PART 12 DISQUALIFICATION

    1. 157. Disqualification for misconduct etc.

    2. 158. Meaning of “person in hardship”

    3. 159. Treating a claimant as not having limited capability for work

    4. 160. Exceptions from disqualification for imprisonment

    5. 161. Suspension of payment of a contributory allowance during imprisonment

14. PART 13 URGENT CASES

    1. 162. Urgent cases

    2. 163. Applicable amounts in urgent cases

    3. 164. Assessment of income and capital in urgent cases

15. PART 14 PERIODS OF LESS THAN A WEEK

    1. 165. Entitlement for less than a week – amount of an employment and support allowance payable

    2. 166. Relevant week

    3. 167. Modification in the calculation of income

    4. 168. Reduction in certain cases

    5. 169. Payment of a contributory allowance for days of certain regular treatment

16. Signature

17. 1. SCHEDULE 1

       HER MAJESTY'S FORCES

       1. PART 1 Prescribed establishments and organisations

          1. 1. Any of the regular naval, military or air forces of...

          2. 2. Royal Fleet Reserve.

          3. 3. Royal Navy Reserve.

          4. 4. Royal Marines Reserve.

          5. 5. Army Reserve.

          6. 6. Territorial Army.

          7. 7. Royal Air Force Reserve.

          8. 8. Royal Auxiliary Air Force.

          9. 9. The Royal Irish Regiment, to the extent that its members...

       2. PART 2 Establishments and organisations of which Her Majesty's forces do not consist

          1. 10. Her Majesty's forces are not to be taken to consist...

    2. SCHEDULE 2

       ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK

       1. Part 1 Physical disabilities

       2. PART 2 Mental, cognitive and intellectual function assessment

    3. SCHEDULE 3

       ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

    4. SCHEDULE 4

       AMOUNTS

       1. PART 1 Prescribed amounts

          1. 1. The weekly amounts specified in column (2) in respect of...

       2. PART 2 Premiums

          1. 2. Except as provided in paragraph 4, the weekly premiums specified...

          2. 3. An enhanced disability premium in respect of a person is...

          3. 4. (1) For the purposes of this Part of this Schedule,...

          4. 5. Pensioner premium

          5. 6. Severe disability premium

          6. 7. Enhanced disability premium

          7. 8. Carer premium

          8. 9. Persons in receipt of concessionary payments

          9. 10. Persons in receipt of benefit

       3. PART 3 Weekly amount of premiums specified in Part 2

       4. PART 4 The components

          1. 12. The amount of the work-related activity component is £26.75.

          2. 13. The amount of the support component is £32.35.

    5. SCHEDULE 5

       SPECIAL CASES

       1. PART 1 Amounts prescribed for the purposes of section 4(2) of the Act

       2. PART 2 Amounts prescribed for the purposes of sections 2(1) and 4(2) of the Act

    6. SCHEDULE 6

       HOUSING COSTS

       2. 1. (1) Subject to the following provisions of this Schedule, the...

       3. 2. Remunerative work

       4. 3. Previous entitlement to other income-related benefits

       5. 4. Circumstances in which a person is liable to meet housing costs

       6. 5. Circumstances in which a person is to be treated as occupying a dwelling as the home

       7. 6. Housing costs not met

       8. 7. Apportionment of housing costs

       9. 8. Existing housing costs

       10. 9. New housing costs

       11. 10. General exclusions from paragraphs 8 and 9

       12. 11. The calculation for loans

       13. 12. General provisions applying to new and existing housing costs

       14. 13. The standard rate

       15. 14. Excessive Housing Costs

       16. 15. Linking rule

       17. 16. Loans on residential property

       18. 17. Loans for repairs and improvements to the dwelling occupied as the home

       19. 18. Other housing costs

       20. 19. Non-dependant deductions

       21. 20. Continuity with income support, an income-based jobseeker's allowance or state pension credit

    7. SCHEDULE 7

       SUMS TO BE DISREGARDED IN THE CALCULATION OF EARNINGS

       1. 1. (1) In the case of a claimant who has been...

       2. 2. (1) In the case of a claimant to whom this...

       3. 3. If the claimant's partner has been engaged in remunerative work...

       4. 4. In the case of a claimant who has been engaged...

       5. 5. In the case of a claimant who is undertaking work...

       6. 5A. In the case of a claimant who receives a payment...

       7. 6. Where regulation 45(2) to (4) applies to the claimant and...

       8. 7. (1) In a case to which this paragraph applies, £20;...

       9. 8. Notwithstanding the foregoing provisions of this Schedule, where two or...

       10. 9. Any earnings derived from employment which are payable in a...

       11. 10. Where a payment of earnings is made in a currency...

       12. 11. Any earnings which are due to be paid before the...

       13. 12. In the case of a claimant who—

       14. 13. In the case of a person to whom paragraph (5)...

       15. 14. In this Schedule— “part-time employment” means, if the person were...

    8. SCHEDULE 8

       SUMS TO BE DISREGARDED IN THE CALCULATION OF INCOME OTHER THAN EARNINGS

       1. 1. Any amount paid by way of tax on income which...

       2. 2. Any payment in respect of any expenses incurred, or to...

       3. 2A. Any payment in respect of expenses arising out of the...

       4. 3. In the case of employment as an employed earner, any...

       5. 4. In the case of a payment under Parts 11 to...

       6. 5. In Northern Ireland, in the case of a payment under...

       7. 6. Any guardian's allowance.

       8. 7. (1) Any child tax credit. (2) Any child benefit.

       9. 8. Any mobility component of disability living allowance.

       10. 9. Any concessionary payment made to compensate for the non-payment of—...

       11. 10. Any mobility supplement or any payment intended to compensate for...

       12. 11. Any attendance allowance or the care component of disability living...

       13. 12. Any payment to the claimant as holder of the Victoria...

       14. 13. (1) Any payment— (a) by way of an education maintenance...

       15. 14. Any payment made to the claimant by way of a...

       16. 15. (1) Any payment made pursuant to section 2 of the...

       17. 15A. Any payment made to the claimant in respect of any...

       18. 16. (1) Subject to sub-paragraph (2) and paragraph 41, any relevant...

       19. 17. Subject to paragraphs 39 and 40, £10 of any of...

       20. 18. Where a claimant receives income under an annuity purchased with...

       21. 19. Any payment made to the claimant by a person who...

       22. 20. Where the claimant occupies a dwelling as the claimant's home...

       23. 21. Where the claimant occupies a dwelling as the claimant's home...

       24. 22. (1) Subject to sub-paragraphs (2) and (3), except where regulation...

       25. 23. (1) Any income derived from capital to which the claimant...

       26. 24. Any income which is payable in a country outside the...

       27. 25. Where a payment of income is made in a currency...

       28. 26. (1) Any payment made to the claimant in respect of...

       29. 27. In the case of a claimant who has a child...

       30. 28. Any payment made to the claimant with whom a person...

       31. 29. Any payment made to the claimant or the claimant's partner...

       32. 30. (1) Any payment made by a local authority in accordance...

       33. 31. (1) Subject to sub-paragraph (2) any payment received under an...

       34. 32. (1) Except where paragraph 31 (or 33) applies, and subject...

       35. 33. (1) Subject to sub-paragraph (2), any payment received under an...

       36. 34. (1) Subject to sub-paragraphs (2) and (3), in the case...

       37. 35. Any social fund payment made pursuant to Part 8 of...

       38. 36. Any payment of income which under regulation 112 (income treated...

       39. 37. Any payment under Part 10 of the Contributions and Benefits...

       40. 38. Any payment which is due to be paid before the...

       41. 39. The total of a claimant's income or, if the claimant...

       42. 40. Notwithstanding paragraph 39 where two or more payments of the...

       43. 41. (1) Any payment made under or by the Macfarlane Trust,...

       44. 42. Any payment made by the Secretary of State to compensate...

       45. 43. Any payment made to a juror or a witness in...

       46. 44. Any payment in consequence of a reduction of council tax...

       47. 45. (1) Any payment or repayment made— (a) as respects England,...

       48. 46. Any payment made to such persons entitled to receive benefits...

       49. 47. Any payment made either by the Secretary of State for...

       50. 48. Any payment (other than a training allowance) made, whether by...

       51. 49. Any supplementary pension under article 23(2) of the Naval, Military...

       52. 50. (1) ) If the claimant is in receipt of any...

       53. 51. In the case of a pension awarded at the supplementary...

       54. 52. (1) Any payment which is— (a) made under any of...

       55. 53. Any payment made ... under section 12B of the Social...

       56. 54. (1) Any payment specified in sub-paragraph (2) to a claimant...

       57. 55. (1) Subject to sub-paragraph (2), in the case of a...

       58. 56. Any payment made with respect to a person on account...

       59. 57. (1) Any payment of a sports award except to the...

       60. 58. Where the amount of a subsistence allowance paid to a...

       61. 59. In the case of a claimant participating in an employment...

       62. 60. (1) Any payment of child maintenance made or derived from...

       63. 61. In the case of a person to whom paragraph (5)...

       64. 62. Any discretionary housing payment paid pursuant to regulation 2(1) of...

       65. 63. (1) Any payment made by a local authority or by...

       66. 64. Any housing benefit to which the claimant is entitled.

       67. 65. Any council tax benefit to which the claimant is entitled....

    9. SCHEDULE 9

       CAPITAL TO BE DISREGARDED

       1. 1. The dwelling occupied as the home but, notwithstanding regulation 83...

       2. 2. Any premises acquired for occupation by the claimant which that...

       3. 3. Any sum directly attributable to the proceeds of sale of...

       4. 4. Any premises occupied in whole or in part by—

       5. 5. Where a claimant has ceased to occupy what was formerly...

       6. 6. Any premises where the claimant is taking reasonable steps to...

       7. 7. Any premises which the claimant intends to occupy as the...

       8. 8. Any premises which the claimant intends to occupy as the...

       9. 9. Any future interest in property of any kind, other than...

       10. 10. (1) The assets of any business owned in whole or...

       11. 11. (1) Subject to sub-paragraph (2), any arrears of, or any...

       12. 12. Any sum— (a) paid to the claimant in consequence of...

       13. 13. Any sum— (a) deposited with a housing association as defined...

       14. 14. Any personal possessions except those which had or have been...

       15. 15. The value of the right to receive any income under...

       16. 16. Where the funds of a trust are derived from a...

       17. 17. (1) Any payment made to the claimant or the claimant's...

       18. 18. The value of the right to receive any income under...

       19. 19. The value of the right to receive any income which...

       20. 20. The surrender value of any policy of life insurance.

       21. 21. Where any payment of capital falls to be made by...

       22. 22. (1) Any payment made by a local authority in accordance...

       23. 23. Any social fund payment made pursuant to Part 8 of...

       24. 24. Any refund of tax which falls to be deducted under...

       25. 25. Any capital which under regulation 105 or 137 (capital treated...

       26. 26. Where a payment of capital is made in a currency...

       27. 27. (1) Any payment made under or by the Macfarlane Trust,...

       28. 28. The value of the right to receive an occupational or...

       29. 29. The value of any funds held under a personal pension...

       30. 30. The value of the right to receive any rent except...

       31. 31. Any payment in kind made by a charity or under...

       32. 32. Any payment made pursuant to section 2 of the Employment...

       33. 32A. Any payment made to the claimant in respect of any...

       34. 33. Any payment made by the Secretary of State to compensate...

       35. 34. Any payment made to a juror or a witness in...

       36. 35. Any payment in consequence of a reduction of council tax...

       37. 36. Any grant made to the claimant in accordance with a...

       38. 37. (1) Any payment or repayment made— (a) as respects England,...

       39. 38. Any payment made to such persons entitled to receive benefits...

       40. 38A. Any payment made under Part 8A of the Social Security...

       41. 39. Any payment made either by the Secretary of State for...

       42. 40. Any arrears of supplementary pension which is disregarded under paragraph...

       43. 41. Any payment (other than a training allowance) made, whether by...

       44. 42. Any payment made by a local authority under section 3...

       45. 43. (1) Any sum to which sub-paragraph (2) applies and—

       46. 44. Any sum administered on behalf of a person in accordance...

       47. 45. Any payment to the claimant as holder of the Victoria...

       48. 46. In the case of a person who is receiving, or...

       49. 47. (1) Any payment of a sports award for a period...

       50. 48. In the case of a claimant participating in an employment...

       51. 49. Any arrears of subsistence allowance paid as a lump sum...

       52. 50. Where an ex-gratia payment of £10,000 has been made by...

       53. 51. In the case of a person to whom paragraph (5)...

       54. 52. (1) Any payment— (a) by way of an education maintenance...

       55. 53. (1) Subject to sub-paragraph (2), the amount of any trust...

       56. 54. The amount of a payment, other than a war disablement...

       57. 55. (1) Any payment made by a local authority or by...

       58. 56. Any payment made under ... regulations made under section 57...

       59. 57. Any payment made to the claimant pursuant to regulations under...

       60. 58. Any payment made to the claimant in accordance with regulations...

18. Explanatory Note