The Employment and Support Allowance Regulations 2008

1.—(1) Subject to the following provisions of this Schedule, the housing costs applicable to a claimant are those costs— E+W+S

(a) which the claimant or, where the claimant has a partner, that partner is, in accordance with paragraph 4, liable to meet in respect of the dwelling occupied as the home which the claimant or that claimant's partner is treated as occupying; and

(b) which qualify [F1 under paragraphs 16 to 18] [F1 under paragraph 18].

(2) In this Schedule—

[F2 “existing housing costs” means housing costs arising under an agreement entered into before 2nd October 1995, or under an agreement entered into after 1st October 1995 (“the new agreement”)—

(a)

which replaces an existing agreement, provided that the person liable to meet the housing costs—

(i)

remains the same in both agreements; or

(ii)

where in either agreement more than one person is liable to meet the housing costs, the person is liable to meet the housing costs in both the existing agreement and the new agreement;

(b)

where the existing agreement was entered into before 2nd October 1995; and

(c)

which is for a loan of the same amount as, or less than the amount of, the loan under the agreement it replaces, and for this purpose any amount payable to arrange the new agreement and included in the loan must be disregarded];

“housing costs” means those costs to which sub-paragraph (1) refers;

[F2 “new housing costs” means housing costs arising under an agreement entered into after 1st October 1995 other than an agreement referred to in the definition of “existing housing costs”;]

[F3 “standard rate” means the rate for the time being determined in accordance with paragraph 13.]

(3) For the purposes of this Schedule a disabled person is a person—

[F4 (a) (i) in respect of whom the main phase employment and support allowance is payable to the claimant or to a person living with the claimant; or

(ii) where they are the claimant or a person living with the claimant, in respect of whom there would be entitlement to an employment and support allowance [F5 including a work-related activity component under section 2(3) of the Act (amount of contributory allowance: work-related activity component)], but for the application of section 1A of the Act (duration of contributory allowance);]

(b) who, had that person in fact been entitled to income support, would have satisfied the requirements of paragraph 12 of Schedule 2 to the Income Support Regulations (additional condition for the disability premium);

(c) aged 75 or over; F6 ...

(d) who is disabled or severely disabled for the purposes of section 9(6) of the Tax Credits Act (maximum rate)[F7 ; or]

[F7 (e) who is entitled to an award of universal credit [F8 and has limited capability for work or limited capability for work and work-related activity as construed in accordance with regulations 39 and 40 of the Universal Credit Regulations 2013.]]

[F9 (3A) For the purposes of this Schedule a claimant is a “work or training beneficiary” on any day in a linking term where the claimant—

(a) had limited capability for work–

(i) for more than 13 weeks in the most recent past period of limited capability for work; or

(ii) for 13 weeks or less in the most recent past period of limited capability for work where the claimant became entitled to an award of an employment and support allowance by virtue of a conversion decision which took effect from the commencement of the most recent past period of limited capability for work;

(b) ceased to be entitled to an allowance or advantage at the end of that most recent past period of limited capability for work; and

(c) became engaged in work or training within one month of so ceasing to be entitled.

(3B) A claimant is not a work or training beneficiary if–

(a) the most recent past period of limited capability for work was ended by a determination that the claimant did not have limited capability for work; and

(b) that determination was on the basis of a limited capability for work assessment.

(3C) In sub-paragraphs (3A) and (3B)—

“allowance or advantage” means any allowance or advantage under the Act or the Contributions and Benefits Act for which entitlement is dependent on limited capability for work;

“conversion decision” has the meaning given in regulation 5(2)(a) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010;

“linking term” means a period of 104 weeks from the first day immediately following the last day in a period of limited capability for work;

“most recent past period of limited capability for work” means the period of limited capability for work which most recently precedes the period in respect of which the current claim is made, including any period of which that previous period is treated as a continuation by virtue of regulation 145(1) (linking rules); and

“work” means work, other than work under regulation 45 (exempt work), for which payment is made or which is done in expectation of payment.]

(4) For the purposes of sub-paragraph (3), a person will not cease to be a disabled person on account of that person being disqualified for receiving benefit or treated as not having limited capability for work by virtue of the operation of section 18(1) to (3) of the Act.

Textual Amendments

F1 Words in Sch. 6 para. 1(1)(b) substituted (with effect in accordance with regs.19 - 21 of the amending S.I.) by The Loans for Mortgage Interest Regulations 2017 (S.I. 2017/725), reg. 1(2)(a), Sch. 5 para. 1(c)(i)

F2 Words in Sch. 6 para. 1(2) omitted (1.4.2016) by virtue of The Social Security (Housing Costs Amendments) Regulations 2015 (S.I. 2015/1647), regs. 1, 4(2)(a) (with reg. 8)

F3 Words in Sch. 6 para. 1(2) omitted (with effect in accordance with regs.19 - 21 of the amending S.I.) by virtue of The Loans for Mortgage Interest Regulations 2017 (S.I. 2017/725), reg. 1(2)(a), Sch. 5 para. 1(c)(ii)

F4 Sch. 6 para. 1(3)(a) substituted (1.5.2012) by The Employment and Support Allowance (Duration of Contributory Allowance) (Consequential Amendments) Regulations 2012 (S.I. 2012/913), regs. 1(2), 9(4)

F5 Words in Sch. 6 para. 1(3)(a)(ii) omitted (3.4.2017) by virtue of The Employment and Support Allowance and Universal Credit (Miscellaneous Amendments and Transitional and Savings Provisions) Regulations 2017 (S.I. 2017/204), regs. 1, 2(5)(a) (with Sch. 2 paras. 1-7)

F6 Word in Sch. 6 para. 1(3) omitted (29.4.2013) by virtue of The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(7)(a)

F7 Sch. 6 para. 1(3)(e) and word inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(7)(a)

F8 Words in Sch. 6 para. 1(3)(e) substituted (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), reg. 1, Sch. 1 para. 15

F9 Sch. 6 para. 1(3A)-(3C) inserted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations 2012 (S.I. 2012/919), regs. 1(2), 5(8)

Modifications etc. (not altering text)

C1 Sch. 6 para. 1(2) applied (with modifications) (5.1.2009) by The Social Security (Housing Costs Special Arrangements) (Amendment and Modification) Regulations 2008 (S.I. 2008/3195), regs. 1(3), 9(a) (with reg. 8)