The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010

Regulation 16(1)

SCHEDULE 2 Modification of enactments: after the conversion phase

PART 1 MODIFICATION OF PART 1 OF THE 2007 ACT

[F1 1.]  Any reference to a claimant is to be read as if it were a reference to a person in relation to whom a conversion decision has been made under these Regulations.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 2.]  Section 1 (employment and support allowance) is to be read as if—

[F2 (a) for subsection (2), there were substituted—

“(2) Subject to the provisions of this Part, a person is entitled to an employment and support allowance if the person satisfies the basic conditions and—

(a) in accordance with Part 2 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010, the effect of the conversion decision that was made in relation to the person was to convert the person’s existing award or awards into a single award of an employment and support allowance;

(b) that conversion decision has come into effect; and

(c) where–

(i) the effect of that conversion decision is that the person is entitled to an income-related allowance, or

(ii) the effect of that conversion decision is that the person is entitled to a contributory allowance and the person subsequently becomes entitled to an income-related allowance,

the person also satisfies the conditions set out in Part 2 of Schedule 1 (conditions relating to financial position), except for the condition in paragraph 6(1)(g) in the case of a person who, before that conversion decision was made, had been entitled to an existing award of income support by virtue of regulation 13(2)(b) or (bb) of the Income Support (General) Regulations 1987 (circumstances in which persons in relevant education may be entitled to income support), or paragraph 10 (disabled students) or 12 (deaf students) of Schedule 1B to those Regulations.”; and]

(b) for subsection (7), there were substituted—

“(7) In this Part—

“contributory allowance” means an employment and support allowance to which a person is entitled by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 which was based on an award of incapacity benefit or severe disablement allowance to which the person was entitled; and

“income-related allowance” means an employment and support allowance to which a person is entitled by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 which was based on an award of income support to which the person was entitled.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F2 Sch. 2 para. 2(a) substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(2) (with reg. 15(2))

[F3 2A.— (1) In relation to awards of an employment and support allowance to persons previously entitled to existing awards, the application of section 1A (duration of contributory allowance) is modified in accordance with sub-paragraph (2).

(2) Section 1A is to be read as if there were substituted—

“1A.— (1)  The period for which a person is entitled to a contributory allowance shall not exceed, in the aggregate, the relevant maximum number of days in any period for which his entitlement is established by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010.

(2) In subsection (1) the “relevant maximum number of days” is–

(a) 365 days, or

(b) if the Secretary of State by order specifies a greater number of days, that number of days.

(3) The fact that a person’s entitlement to a contributory allowance has ceased as a result of subsection (1) does not prevent his being entitled to a further allowance if he satisfies the first and second conditions set out in Part 1 of Schedule 1.

(4) In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, the following are not to be counted–

(a) days in which the person is a member of the support group, and

(b) days not falling within paragraph (a) in respect of which the person is entitled to the support component referred to in section 2(1)(b).

(5) In calculating for the purposes of subsection (1) the length of the period for which a person is entitled to a contributory allowance, days occurring before the coming into force of this section are to be counted (as well as those occurring afterwards).”.]

Textual Amendments

F3 Sch. 2 para. 2A inserted (1.5.2012) by The Employment and Support Allowance (Duration of Contributory Allowance) (Consequential Amendments) Regulations 2012 (S.I. 2012/913), regs. 1(2), 10(4)

[F1 3.]  Section 2 (amount of contributory allowance) is to be read as if—

(a) in subsection (1)(a), after the words “such amount” there were inserted “ , or the aggregate of such amounts, ”; and

(b) except for the purposes of applying regulation 147A of the 2008 Regulations (claimants appealing a decision), in subsections (2)(a) and (3)(a), references to the assessment phase were to the conversion phase.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 4.]  Section 4 (amount of income-related allowance), except for the purposes of applying regulation 147A of the 2008 Regulations as modified by paragraph 15 of this Schedule, is to be read as if, in subsections (4)(a) and (5)(a), references to the assessment phase were to the conversion phase.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F4 4A.   Schedule 1 to the 2007 Act (employment and support allowance: additional conditions) is to be read as if, in paragraph 6, after sub-paragraph (1), there were inserted—

“(1A)  Paragraphs (1B) and (1C) apply where any person (“P”) is entitled by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 (“the 2010 Regulations”) to an employment and support allowance which is attributable to an income-related allowance.

(1B) In determining for the purposes of paragraph 6(1)(a) whether P’s income exceeds the applicable amount, the amount of any transitional addition to which P is entitled under the 2010 Regulations shall be disregarded.

(1C) Where—

(a) P ceases to satisfy the condition set out in sub-paragraph (1)(a); but

(b) otherwise remains entitled to an amount by way of a transitional addition under the 2010 Regulations,

the condition set out in sub-paragraph (1)(a) shall be treated as satisfied in P’s case and the amount of income-related allowance to which P is entitled shall be the amount of the transitional addition.”]

Textual Amendments

F4 Sch. 2 para. 4A inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(3) (with reg. 15(2))

PART 2 MODIFICATION OF OTHER PRIMARY LEGISLATION

Social Security Act 1998

[F1 5.]  Schedule 3 to the Social Security Act 1998 M1 (decisions against which an appeal lies) is to be read as if, after paragraph 8D, there were inserted—

“Conversion of certain existing awards into awards of an employment and support allowance

8E.   A conversion decision within the meaning of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M1 1998 c. 14. Paragraphs 8A to 8D of Schedule 3 were inserted by paragraph 12 of Schedule 1 to the State Pension Credit Act 2002 (c. 16).

Social Security Contributions and Benefits Act 1992

[F1 6.]  Section 44B of the Social Security Contributions and Benefits Act 1992 M2 (deemed earnings factors: 2010-11 onwards) is to be read as if, after subsection (5), there were inserted—

“(5A) In determining whether Condition C is satisfied in relation to any pensioner, the following entitlements of the pensioner to an earnings factor credit may be aggregated if the weeks to which they relate comprise a continuous period—

(a) any entitlement arising by virtue of–

(i) section 44C(3)(c) below (eligibility for earnings factor enhancement in respect of a week in which severe disablement allowance was payable), or

(ii) section 44C(3)(d) below (eligibility for earnings factor enhancement in respect of a week in which long-term incapacity benefit was, or would have been, payable); and

(b) where an award of severe disablement allowance or long-term incapacity benefit was converted into an award of an employment and support allowance by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010, any entitlement arising by virtue of regulation 5A(2)(ba) of the Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations 2001 M3  (earnings factor credits eligibility for pensioners to whom employment and support allowance was payable).”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M2 1992 c. 4. Section 44B was inserted by section 9(1) of the Pensions Act 2007 (c. 22) and amended by paragraph 5 of Schedule 1 to the National Insurance Act 2008 (c. 16).

M3 S.I. 2001/1323. Regulation 5A was inserted by S.I. 2009/2206. The reference to regulation 5A(2)(ba) is to the modification made by paragraph 66 of Schedule 2 to these Regulations.

[F5 Income Tax (Earnings and Pensions) Act 2003

Textual Amendments

F5 Sch. 2 para. 6A inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(4) (with reg. 15(2))

6A.   The Income Tax (Earnings and Pensions) Act 2003 is to be read as if—

(a) in section 660(1) (taxable benefits: UK benefits), in Table A–

(i) in the first column, after the entry for “Contributory employment and support allowance”, there were inserted a new entry “Contributory employment and support allowance (including any transitional addition to which a person is entitled in connection with that award)”,

(ii) in the second column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “WRA 2007”,

(iii) in the third column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “Section 1(2) (as modified and applied by the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 (“the 2010 Regulations”))”, and

(iv) under the text inserted in the second and third columns by sub-paragraphs (ii) and (iii), there were inserted “Any provision made for Northern Ireland which corresponds to section 1(2) of WRA 2007 (as modified and applied by any provision made for Northern Ireland which corresponds to those contained in the 2010 Regulations)”;

(b) in section 661(1) (taxable social security income), after “contributory employment and support allowance” there were inserted “contributory employment and support allowance (including any transitional addition to which a person is entitled in connection with that award),”; and

(c) in section 677(1) ( UK social security benefits wholly exempt from tax), in Table B–

(i) in the first column, after the entry for “Income-related employment and support allowance”, there were inserted a new entry “Income-related employment and support allowance (including any transitional addition to which a person is entitled in connection with that award)”,

(ii) in the second column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “WRA 2007”,

(iii) in the third column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “Section 1(2) (as modified and applied by the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 (“the 2010 Regulations”))”, and

(iv) under the text inserted in the second and third columns by sub-paragraphs (ii) and (iii), there were inserted “Any provision made for Northern Ireland which corresponds to section 1(2) of WRA 2007 (as modified and applied by any provision made for Northern Ireland which corresponds to those contained in the 2010 Regulations)”.]

PART 3 MODIFICATION OF THE 2008 REGULATIONS

[F1 7.]  Any reference to a claimant is to be read as if it were a reference to a person in relation to whom a conversion decision has been made under these Regulations.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 8.]  Part 2 (which makes provision about the assessment phase) does not apply, except for the purposes of applying regulation 147A of the 2008 Regulations.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 9.]  Part 3 (which makes provision about contribution conditions which do not apply by virtue of modifications contained in these Regulations) does not apply.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 10.]   [F6 Regulation 30 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made) is to be read as if, for paragraph (3), there was substituted—

“(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a conversion decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by the First-tier Tribunal.”.”.]

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F6 Sch. 2 para. 10 substituted (30.3.2015 with application in accordance with reg. 2) by The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (S.I. 2015/437), regs. 1, 7

[F1 11.]  Regulation 45 (exempt work) is to be read as if, for the definition of “specified work” in paragraph (10), there were substituted—

““specified work” means—

(a)

work done in accordance with paragraph (4); [F7 or]

(b)

work done in accordance with regulation 17(4)(a) of the Social Security (Incapacity for Work) (General) Regulations 1995 M4 ; F8 ...

(c)

F8 ...”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F7 Word in Sch. 2 para. 11 inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(5)(a) (with reg. 15(2))

F8 Words in Sch. 2 para. 11 omitted (1.11.2010) by virtue of The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(5)(b) (with reg. 15(2))

Marginal Citations

M4 S.I. 1995/311. Regulation 17(1A) was in force from 8th April 2002 to 9th April 2006. Regulation 17 was substituted by S.I. 2006/757 with effect from 10th April 2006.

[F1 12.]  Regulation 67 (prescribed amounts) is to be read as if—

(a) in paragraph (1), after sub-paragraph (c) there were added—

“(d) the amount of any transitional addition to which the person is entitled under regulation 11 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.”;

(b) in paragraph (2), for the words from “is the amount” to the end, there were substituted “are such of the following amounts as may apply in the person's case—

“(a) the amount determined in accordance with paragraph 1(1) of Schedule 4; and

(b) the amount of any transitional addition to which the person is entitled under regulation 10 of the Employment and Support Allowance (Transitional Provisions) (Existing Awards) Regulations 2010.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 13.]  Regulation 68 (polygamous marriages) is to be read as if, in paragraph (1), after sub-paragraph (d) there were added—

“(e) the amount of any transitional addition to which the person is entitled under regulation 11 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 14.]  Regulation 75 (payments treated as not being payments to which section 3 of the 2007 Act applies) is to be read subject to the same modifications as are specified in paragraph 38 of Schedule 1 to these Regulations.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 15.]  In its application to a person who has made and is pursuing an appeal against a conversion decision which embodies a determination that the person does not have limited capability for work, Regulation 147A M5 (claimants appealing a decision) is to be read as if there were substituted—

“Claimants appealing a decision

147A.— (1) This regulation applies where a person has made and is pursuing an appeal against a conversion decision which embodies a determination that the person does not have limited capability for work.

[F9 (1A) A person to whom this regulation applies who has made and is pursuing an appeal against a conversion decision in respect of an existing award of incapacity benefit or severe disablement allowance shall be treated as having satisfied the conditions in Part 1 of Schedule 1 to the Act (contributory allowance: conditions relating to national insurance).]

(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Secretary of State under regulation 19 shall not be made until the appeal is determined by the First-tier Tribunal.

(3) Paragraph (2) does not apply where either—

(a) the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering when entitlement began; or

(b) a disease or bodily or mental disablement from which the claimant was suffering at that date has significantly worsened.

(4) Where this regulation applies and the Secretary of State makes a determination—

(a) in a case to which paragraph (3) applies (including where the determination is not the first such determination) that the claimant does not have, or by virtue of regulation 22 or 23 is to be treated as not having, limited capability for work; or

(b) subsequent to a determination that the claimant is to be treated as having limited capability for work by virtue of a provision of these Regulations other than regulation 30, that the claimant is no longer to be so treated,

this regulation and regulation 30 apply as if that determination had not been made.

(5) Where this regulation applies and—

(a) the claimant is entitled to an employment and support allowance by virtue of being treated as having limited capability for work in accordance with regulation 30;

(b) neither of the circumstances in paragraph (3) applies or, subsequent to the application of either of those circumstances, the claimant has been determined not to have limited capability for work; and

(c) the claimant's appeal is dismissed, withdrawn[F10 , struck out or has been discontinued in accordance with the provisions of regulation 33(10) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (notice of appeal),]

the claimant is to be treated as not having limited capability for work [F11 with effect from the day specified in paragraph (5A).]

[F12 (5A) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Secretary of State either—

(a) receives the First-tier Tribunal’s notification that the appeal is dismissed, withdrawn or struck out, or

(b) discontinues action on an appeal in the circumstances to which regulation 33(10) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (notice of appeal) applies.]

(6) Where a claimant's appeal is successful, any entitlement to which this regulation applies shall terminate [F13 from the first day of the benefit week following the date on which the Secretary of State receives the First-tier Tribunal’s notification of that decision].”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F9 Words in Sch. 2 para. 15 inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(7)

F10 Words in Sch. 2 para. 15(5)(c) substituted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(a)(i)(aa)

F11 Words in Sch. 2 para. 15(5) substituted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(a)(i)(bb)

F12 Words in Sch. 2 para. 15 inserted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(a)(ii)

F13 Words in Sch. 2 para. 15 substituted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(a)(iii)

Marginal Citations

M5 Regulation 147A was inserted by S.I. 2010/840, regulation 9(15).

[F1 16.]  Schedule 5 (prescribed amounts in special case) is to be read as if any reference to the amount—

(a) applicable to a person under regulation 67(1)(a); or

(b) to which a person is entitled under regulation 67(1)(a),

included the amount of any transitional addition to which the person is entitled under regulation 67(1)(d) (see modification made by paragraph 52(a) of this Schedule).

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

PART 4 MODIFICATION OF OTHER SECONDARY LEGISLATION

Social Security (Claims and Payments) Regulations 1987

[F1 17.]  The Social Security (Claims and Payments) Regulations 1987 M6 are to be read subject to the modifications set out in paragraphs [F14 18 to 22] of this Schedule.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F14 Words in Sch. 2 para. 17 substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(8)

Marginal Citations

M6 S.I. 1987/1968. Regulation 3(j) was inserted by S.I. 2008/1554. Regulation 32(1B) was inserted by S.I. 2003/1050 and amended by S.I. 2003/3209. Paragraphs 1(3) and 8(4)(a)(iv) of Schedule 9 were inserted by S.I. 2008/1554.

[F1 18.]  Regulation 3 (claims not required for entitlement to benefits in certain cases) is to be read as if—

(a) after the words “was made” in paragraph (j)(ii) M7 , there were inserted—

F15 “...

[F16 (k) the beneficiary–

(i) has made and is pursuing an appeal against a conversion decision made by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 which embodies a determination that the beneficiary does not have limited capability for work; or

(ii) was entitled to an employment and support allowance by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 and has made and is pursuing an appeal against a later decision which embodies a determination that the beneficiary does not have limited capability for work; ”]; and

(b) after paragraph [F17 (k)], there were added—

[F18 “(l)] in the case of an employment and support allowance where the beneficiary is entitled to an existing award which is subject to conversion under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F15 Word in Sch. 2 para. 18(a) omitted (1.11.2010) by virtue of The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(9)(a)(i)

F16 Words in Sch. 2 para. 18(a) substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(9)(a)(ii)

F17 Word in Sch. 2 para. 18(b) substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(9)(b)(i)

F18 Word in Sch. 2 para. 18(b) substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(9)(b)(ii)

Marginal Citations

M7 Paragraph (j) was substituted by regulation 2 of S.I. 2010/840.

[F1 19.]  In regulation 26C M8 (employment and support allowance) any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M8 Regulation 26C was inserted by S.I. 2008/1554, regulation 21.

[F1 20.]  Regulation 32(1B) (information to be given and changes to be notified) is to be read as if—

(a) the word “or” at the end of sub-paragraph (a) were omitted; and

(b) after that sub-paragraph, there were inserted—

“(ab) the amount of any transitional addition to which the beneficiary is entitled under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010; or”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

[F1 21.]  Schedule 9 (deductions from benefit and direct payments to third parties) is to be read as if—

(a) in paragraph 1 (interpretation)—

(i) in sub-paragraph (3), after the words “ “employment and support allowance” means”, there were inserted “ (subject to sub-paragraph (4)) ”, and

(ii) after sub-paragraph (3), there were added—

“(4) In the application of sub-paragraph (3) to a beneficiary whose award of an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under those Regulations.

(5) Where a specified benefit awarded to a beneficiary is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the beneficiary, any deduction is being made in accordance with this Schedule from sums payable to the beneficiary by way of the specified benefit; and

(b) with effect from that date, the award of specified benefit is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within paragraph (a) shall have effect as a deduction from the employment and support allowance to which the beneficiary is entitled.”.

(b) in paragraph 8—

(i) in sub-paragraph (4), for paragraph (a)(iv), there were substituted—

“(iv) in the case of an employment and support allowance, the applicable amount for the family as is awarded under the provisions specified in sub-paragraph (5); or”, and

(ii) after sub-paragraph (4) there were added—

“(5) The specified provisions are—

(a) where the person is entitled to an employment and support allowance by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”)—

(i) paragraph (1)(a), (b) and (d) of regulation 67 (prescribed amounts); or

(ii) paragraph (1)(a), (b), (c) and (e) of regulation 68 (polygamous marriages),

of the Employment and Support Allowance Regulations (as modified by paragraphs [F19 12 and 13] of Schedule 2 to the 2010 Regulations); and

(b) in any other case, paragraph (1)(a) and (b) of regulation 67 or paragraph (1)(a) to (c) of regulation 68 of the Employment and Support Allowance Regulations.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

F19 Words in Sch. 2 para. 21(b)(ii) substituted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(10)

[F1 22.]  Schedule 9B (deductions from benefit in respect of child support maintenance and payment to persons with care) M9 is to be read as if—

(a) in paragraph (1) (interpretation), the existing provision becomes sub-paragraph (1); and

(b) there were added–

“(2) In the application of this Schedule to a beneficiary whose award of an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under those Regulations.

(3) Where a specified benefit awarded to a beneficiary is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the beneficiary, any deduction is being made in accordance with this Schedule from sums payable to the beneficiary by way of the specified benefit; and

(b) with effect from that date, the award of specified benefit is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within paragraph (a) shall have effect as a deduction from the employment and support allowance to which the beneficiary is entitled.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M9 Schedule 9B was inserted by S.I. 2001/18, regulation 2. It has been amended but not in a way material to these Regulations.

[F20 Community Charges (Deductions from Income Support) (Scotland) Regulations 1989

Textual Amendments

F20 Sch. 2 para. 22A inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(11)

22A.   Regulation 1 of the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989 (citation, commencement and interpretation) is to be read as if, after paragraph (2), there were inserted—

“(2A)  In the application of these Regulations to a debtor whose entitlement to an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the debtor is entitled under those Regulations.

(2B) Where a debtor’s award of income support is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the debtor, any deduction is being made under these Regulations from sums payable to the debtor by way of income support; and

(b) with effect from that date, the award of income support is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within sub-paragraph (a) shall have effect as a deduction from the employment and support allowance to which the debtor is entitled.”.]

Community Charges (Deductions from Income Support) (No. 2) Regulations 1990

[F1 23.]  Regulation 1 of the Community Charges (Deductions from Income Support) (No. 2) Regulations 1990 M10 (citation, commencement and interpretation) is to be read as if, after paragraph (2), there were inserted—

“(2A) In the application of these Regulations to a debtor whose entitlement to an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the debtor is entitled under those Regulations.

(2B) Where a debtor's award of income support is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the debtor, any deduction is being made under these Regulations from sums payable to the debtor by way of income support; and

(b) with effect from that date, the award of income support is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within sub-paragraph (a) shall have effect as a deduction from the employment and support allowance to which the debtor is entitled.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M10 S.I. 1990/545. These Regulations lapsed on the repeal of the enabling authority, as from 1st April 1993, except in relation to any community charge in respect of a day falling before that date or in relation to any financial year beginning before that date.

Fines (Deductions from Income Support) Regulations 1992

[F1 24.]  Regulation 1 of the Fines (Deductions from Income Support) Regulations 1992 M11 (citation, commencement and interpretation) is to be read as if, after paragraph (2), there were inserted—

“(2A) In the application of these Regulations to an offender whose entitlement to an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the offender is entitled under those Regulations.

(2B) Where an offender's award of income support is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the offender, any deduction is being made under these Regulations from sums payable to the offender by way of income support; and

(b) with effect from that date, the award of income support is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within sub-paragraph (a) shall have effect as a deduction from the employment and support allowance to which the offender is entitled.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M11 S.I. 1992/2182. S.I. 2008/1554 added an employment and support allowance to the benefits from which deductions may be made, inserted definitions of “contributory employment and support allowance”, “income related employment and support allowance” and made other relevant amendments.

Council Tax (Deductions from Income Support) Regulations 1993

[F1 25.]  Regulation 1 of the Council Tax (Deductions from Income Support) Regulations 1993 M12 (citation, commencement and interpretation) is to be read as if, after paragraph (2), there were inserted—

“(2A) In the application of these Regulations to a debtor whose entitlement to an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the debtor is entitled under those Regulations.

(2B) Where a debtor's award of income support is subject to conversion under the 2010 Regulations and—

(a) immediately before the effective date of the conversion decision made in relation to the debtor, any deduction is being made under these Regulations from sums payable to the debtor by way of income support; and

(b) on that date, the award of income support is converted into an award of an employment and support allowance under the 2010 Regulations,

any deduction falling within sub-paragraph (a) shall have effect as a deduction from the employment and support allowance to which the debtor is entitled.”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M12 S.I. 1993/494. S.I. 2008/1554 added an employment and support allowance to the benefits from which deductions may be made, inserted definitions of “contributory employment and support allowance”, “income related employment and support allowance” and made other relevant amendments.

[F21 Social Security and Child Support (Decisions and Appeals) Regulations 1999

Textual Amendments

F21 Sch. 2 para. 25A inserted (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 17(12)

25A.— (1) Regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (revision of decisions) is to be read as if—

(a) in the case of a revision of a decision to award jobseeker’s allowance made following the reinstatement of an existing award in accordance with regulation 15(5) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 (“the 2010 Regulations”), the words “within one month of the date of notification of the original decision” in paragraph (1)(a) were omitted;

(b) in the case of a conversion decision where there has been a change of circumstances to which regulation 12(4) of the 2010 Regulations (calculation of transitional addition) applies, paragraph (9)(a) were omitted; and

(c) in paragraph (9)(a), for “in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations” there were substituted, “in the cases of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or a conversion decision within the meaning of regulation 5(2)(a) of the 2010 Regulations”.

(2) Regulation 6(2)(a)(i) of those Regulations (supersession of decisions) is to be read as if for “in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations” there were substituted “in the cases of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations or a conversion decision within the meaning of regulation 5(2)(a) of the 2010 Regulations”.]

Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations 2001

[F1 26.]  Regulation 5A of the Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations 2001 M13 (earnings factor credits eligibility for pensioners to whom employment and support allowance was payable) is to be read as if—

(a) the word “or” at the end of paragraph (2)(b) were omitted; and

(b) after that paragraph (2)(b), there were inserted—

“(ba) that allowance was an employment and support allowance to which the pensioner was entitled by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 and either—

(i) long-term incapacity benefit or severe disablement allowance was payable to the pensioner immediately before its conversion into an employment and support allowance in accordance with those Regulations; or

(ii) the condition in sub-paragraph (b) was satisfied; or”.

Textual Amendments

F1 Sch. 2 paras. 1-26: Sch. 2 para. 41-66 renumbered as Sch. 2 para. 1-26 (1.11.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010 (S.I. 2010/2430), regs. 1(2), 15(1)(b)

Marginal Citations

M13 S.I. 2001/1323. Regulation 5A was inserted by S.I. 2009/2206.

[F22 Social Security (Habitual Residence) Amendment Regulations 2004

Textual Amendments

F22 Sch. 2 para. 27 inserted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(b)

27.   Regulation 6 of the Social Security (Habitual Residence) Amendment Regulations 2004 (transitional arrangements and savings) is to be read as if—

(a) in paragraph (1)–

(i) sub-paragraphs (a), (b) and (d) were omitted, and

(ii) for sub-paragraph (c) there were substituted—

“(c) is entitled to an employment and support allowance by virtue of—

(i) the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010, or

(ii) regulation 30 of the Employment and Support Allowance Regulations (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made) in the circumstances where the person has made and is pursuing an appeal against a conversion decision made under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010 which embodies a determination that the person does not have limited capability for work,

and immediately before the effective date of the conversion decision made in respect of that person, was entitled to a specified benefit in respect of a period which was continuous with a period of entitlement to the same or another specified benefit which included 30th April 2004;”; and

(b) in paragraph (4), before sub-paragraph (a) there were inserted–

“(za) “conversion decision” and “effective date” have the same meanings as in regulation 2(1) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) ( No. 2) Regulations 2010; ”.]

Textual Amendments

F22 Sch. 2 para. 27 inserted (31.10.2011) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2011 (S.I. 2011/2425), regs. 1(2), 27(4)(b)