The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2013

Amendments to the Employment and Support Allowance Regulations 2008

13.—(1) The Employment and Support Allowance Regulations 2008(1) are amended as follows.

(2) In regulation 2(1) (interpretation)—

(a) in the definition of “attendance allowance” omit paragraphs (c) and (d);

(b) in paragraph (a) of the definition of “councillor” after “county council,” insert “a county borough council,”;

(c) in the definition of “councillor’s allowance”—

(i) in paragraph (a) omit “or Wales”;

(ii) in paragraph (b)(ii) for “sections 11 and 16” substitute “section 11”; and

(iii) after “2004;" insert—

“or

(c) in Wales, an allowance under or by virtue of a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972;”;

(d) in the definition of “enactment” after “Parliament” insert “or the National Assembly for Wales”;

(e) omit the definition of “relevant infection or contamination”; and

(f) omit the definition of “service user group”.

(3) After regulation 2(7) insert—

“(8) References in these Regulations to a person or claimant participating as a service user are to—

(a) a person who is being consulted by or on behalf of—

(i) a body which has a statutory duty to provide services in the field of health, social care or social housing; or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in their capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services; or

(b) the carer of a person consulted under sub-paragraph (a).”.

(4) In regulation 4 (end of the assessment phase)—

(a) in paragraph (1) for “paragraph (2)” substitute “paragraphs (2) and (3)”; and

(b) for paragraph (2) substitute—

“(2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(3) This paragraph applies where, at the end of the 13 week period referred to in paragraph (1)—

(a) the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b) the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).”.

(5) In regulation 5 (assessment phase – previous claimants)—

(a) in paragraph (1)(b) for “paragraph (3) and (4)” substitute “paragraphs (3), (3A) and (4)”;

(b) for paragraph (3) substitute—

“(3) Where paragraph (3A) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(3A) This paragraph applies where on the day referred to in paragraph (1)(b)—

(a) the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b) the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).”; and

(c) in paragraph (4)(a) for “paragraph (3) does” substitute “paragraphs (3) and (3A) do”.

(6) In the definition of “advanced education” in regulation 9(5) (conditions relating to youth)—

(a) in paragraph (a) for “Technician” substitute “Technology”; and

(b) in paragraph (b) for “Technical” substitute “Technology”.

(7) In regulation 19 (determination of limited capability for work)—

(a) in paragraph (3)—

(i) for “any descriptor” substitute “each descriptor”; and

(ii) after “listed in that Schedule” insert “which applies in the claimant’s case”;

(b) in paragraph (5)(c)(i) after “disablement;” insert “or”; and

(c) in paragraph (6) for “apply” substitute “applies”.

(8) In regulation 20 (certain claimants to be treated as having limited capability for work)—

(a) regulation 20 shall stand as paragraph (1);

(b) in paragraph (1)(c)(i)—

(i) omit “, or from work of such a kind,”; and

(ii) after “made” insert “or given”;

(c) in paragraph (1)(e)(i) after “period” insert “(which has the meaning it has in section 35(2) of the Contributions and Benefits Act)”;

(d) in paragraph (1)(g)—

(i) insert “the claimant meets” at the beginning of the paragraph; and

(ii) for “apply to the claimant” substitute “in accordance with regulation 34(2), (3) and (6) where applicable”; and

(e) after paragraph (1) insert—

“(2) In this regulation, “relevant infection or contamination” means—

(a) in England and Wales—

(i) any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control of Disease) Act 1984 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing, protecting against, controlling or providing a public health response to, such incidence or spread; or

(ii) tuberculosis or any infectious disease to which regulation 9 of the Public Health (Aircraft) Regulations 1979 (powers in respect of persons leaving aircraft) applies or to which regulation 10 of the Public Health (Ships) Regulations 1979 (powers in respect of certain persons on ships) applies; and

(b) in Scotland, any—

(i) infectious disease within the meaning of section 1(5) of the Public Health etc (Scotland) Act 2008, or exposure to an organism causing that disease; or

(ii) contamination within the meaning of section 1(5) of that Act, or exposure to a contaminant,

to which sections 56 to 58 of that Act (compensation) apply.”.

(9) In regulation 21(2) (information required for determining capability for work) for “will” substitute “must”.

(10) In regulation 22 (failure to provide information in relation to limited capability for work)—

(a) for paragraph (2)(a) substitute—

“(a) the claimant was sent a further request at least three weeks after the date of the first request;”; and

(b) in paragraph (2)(b) omit from “the claimant” to “request, and”.

(11) In regulation 23 (claimant called for a medical examination)—

(a) in paragraph (2) for “listed” substitute “mentioned”; and

(b) for paragraph (3) substitute—

“(3) Paragraph (2) does not apply unless—

(a) written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b) that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.”.

(12) In regulation 26(1) (claimants receiving certain regular treatment) after “engaged in” insert “receiving”.

(13) After regulation 29(3) (exceptional circumstances) insert—

“(4) In this regulation “medical evidence” means—

(a) evidence from a health care professional approved by the Secretary of State; and

(b) evidence (if any) from any health care professional or a hospital or similar institution,

or such part of such evidence as constitutes the most reliable evidence available in the circumstances.”.

(14) In regulation 30 (conditions for treating a claimant as having limited capability for work)—

(a) in paragraph (2)(b)—

(i) after “claim” insert “for employment and support allowance”; and

(ii) for “unless” to the end substitute “unless paragraph (4) applies.”;

(b) omit paragraph (2)(c); and

(c) after paragraph (3) insert—

“(4) This paragraph applies where—

(a) the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering at the time of that determination;

(b) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or

(c) in the case of a claimant who was treated as not having limited capability for work under regulation 22 (failure to provide information), the claimant has since provided the information requested under that regulation.”.

(15) In regulation 32(1) (certain claimants to be treated as not having limited capability for work) omit “for Defence”.

(16) In regulation 32A(1) (period covered by medical evidence) omit “then”.

(17) In regulation 34 (determination of limited capability for work-related activity)—

(a) in paragraph (1)—

(i) for “claimant’s”, the second time it occurs, substitute “claimant has limited”;

(ii) omit “will be limited”; and

(iii) after “limitation” for “will” substitute “must”;

(b) omit paragraph (3A); and

(c) after paragraph (5) insert—

“(6) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 3, it is a condition that the claimant’s incapability to perform the action arises—

(a) in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—

(i) from a specific bodily disease or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(b) in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—

(i) from a specific mental illness or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.”.

(18) In regulation 36(2) (information required for determining capability for work-related activity) for “will” substitute “must”.

(19) In regulation 37(2) (failure to provide information in relation to work-related activity)—

(a) for sub-paragraph (a) substitute—

“(a) the claimant was sent a further request at least three weeks after the date of the first request;”; and

(b) in sub-paragraph (b) omit from “the claimant” to “, and”.

(20) In regulation 38 (claimant may be called for a medical examination)—

(a) in paragraph (2) for “listed” substitute “mentioned”; and

(b) for paragraph (3) substitute—

“(3) Paragraph (2) does not apply unless—

(a) written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b) the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.”.

(21) In regulation 40(2)(d) (claimant who works) after “earnings)” insert “or”.

(22) For regulation 43(1)(e)(i), (ii) and (iii) (circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work) substitute—

“(i) a part-time fire-fighter employed by a fire and rescue authority under the Fire and Rescue Services Act 2004 or by the Scottish Fire and Rescue Service established under section 1A of the Fire (Scotland) Act 2005;”.

(23) In regulation 45 (exempt work) —

(a) for paragraph (4)(b) and (c) substitute—

“(b) is done by a claimant who has or is treated as having limited capability for work-related activity.”; and

(b) after paragraph (4)(b) insert—

“(4A) For the purposes of paragraph (4)(a), a period of specified work begins on the first day on which any specified work is undertaken and continues for a period of 52 weeks, whether or not any further specified work is undertaken during that period.”.

(24) In regulation 70(4) (special cases: supplemental – persons from abroad)—

(a) for sub-paragraph (h) substitute—

“(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is—

(i) discretionary leave to enter or remain in the United Kingdom;

(ii) leave to remain under the Destitution Domestic Violence concession(2); or

(iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005(3);”;

(b) at the end of sub-paragraph (i) add “or”; and

(c) omit sub-paragraph (k) and (l).

(25) In regulation 76(1) (deductions for councillor’s allowance) for “person” substitute “claimant”.

(26) In regulation 95 (earnings of employed earners)—

(a) in paragraph (2)(f) for “claimant’s participation in a service user group” substitute “claimant participating as a service user”; and

(b) in paragraph (4)(b) for “(e)” substitute “(f)”.

(27) In regulation 104 (calculation of income other earnings) insert after paragraph (9)—

“(10) Where a claimant is a member of a couple and the claimant’s partner is receiving a contributory allowance, and that benefit has been reduced under regulation 63 or section 11J of the Act, the amount of the benefit to be taken into account is the amount as if it had not been so reduced.

(11) Where a claimant is a husband or wife by virtue of a polygamous marriage and the other party to the marriage or any spouse additional to the marriage is receiving a contributory allowance, and that benefit has been reduced under regulation 63 or section 11J of the Act(4), the amount of the benefit to be taken into account is the amount as if it had not been so reduced.”.

(28) In regulation 106(9) (notional income – deprivation and income on application) for “claimant’s participation in a service user group” substitute “claimant participating as a service user”.

(29) In regulation 107(8) (notional income due to be paid) for “claimant’s participation in a service user group” substitute “claimant participating as a service user”.

(30) In regulation 108(5) (notional income – other income) for “claimant’s participation in a service user group” substitute “claimant participating as a service user”.

(31) For regulation 168 (reduction in certain cases) substitute—

“Reduction in certain cases

168.— (1) Where a disqualification is to be made in accordance with regulation 157 in respect of a part-week, the amount referred to in paragraph (2) is to be payable by way of an employment and support allowance in respect of that part-week.

(2) The amount mentioned in paragraph (1) is—

(a) one seventh of the employment and support allowance which would have been paid for the part-week if—

(i) there was no disqualification under regulation 157; and

(ii) it was not a part-week; multiplied by

(b) the number of days in the part-week in respect of which no disqualification is to be made in accordance with regulation 157.”.

(32) In Part 1 (physical disabilities) of Schedule 2 (assessment of whether a claimant has limited capability for work)—

(a) in column 2, opposite the entry for paragraph 1 in column 1 (activity),—

(i) in paragraphs 1(a), (c) and (d) after “cannot” insert “unaided by another person”;

(ii) in paragraph 1(b)—

(aa) after “cannot” insert “unaided by another person”; and

(bb) after “steps” omit “unaided by another person”; and

(iii) in paragraph 1(e) for “apply” substitute “applies”;

(b) in column 2, opposite the entry for paragraph 5 in column 1,—

(i) for paragraph 5(a) substitute—

“(a) Cannot press a button (such as a telephone keypad) with either hand or cannot turn the pages of a book with either hand.”;

(ii) in paragraph 5(c) after “mark” insert “with either hand”; and

(iii) in paragraph 5(e) for “apply” substitute “applies”;

(c) in column 2, opposite the entry for paragraph 7 in column 1,—

(i) in paragraph 7(a)—

(aa) after “message” insert “, such as the location of a fire escape,”; and

(bb) after “impairment,” omit the words to the end of the sentence;

(ii) in paragraph 7(d) for “apply” substitute “applies”; and

(d) in column 2, opposite the entry for paragraph 9 in column 1, in paragraph 9(c) for “none of the above apply” substitute “neither of the above applies”.

(33) In Part 2 (mental, cognitive and intellectual function assessment) of Schedule 2 (assessment of whether a claimant has limited capability for work)—

(a) in column 2, opposite the entry for paragraph 12 in column 1,—

(i) in paragraph 12(a) for “they require” substitute “the claimant requires”;

(ii) in paragraph 12(b) for “they frequently require” substitute “the claimant frequently requires”; and

(iii) in paragraph 12(c) for “they occasionally require” substitute “the claimant occasionally requires”;

(b) in column 2, opposite the entry for paragraph 13 in column 1,—

(i) in paragraph 13(b) after “2” insert “sequential”;

(ii) in paragraph 13(c) after “2” insert “sequential”; and

(iii) in paragraph 13(d) for “apply” substitute “applies”; and

(c) in column 2, opposite the entry for paragraph 16 in column 1,—

(i) in paragraph 16(a), (b) and (c) for “individual” substitute “claimant”; and

(ii) in paragraph 16(d) for “apply” substitute “applies”.

(34) In Schedule 3 (assessment of whether a claimant has limited capability for work-related activity)—

(a) in column 2, opposite the entry for paragraph 5 in column 1, for paragraph 5 substitute—

“5.   Cannot press a button (such as a telephone keypad) with either hand or cannot turn the pages of a book with either hand.”;

(b) in column 2, opposite the entry for paragraph 7 in column 1,—

(i) after “message” insert “, such as the location of a fire escape,”; and

(ii) after “impairment” omit the words to the end of the sentence;

(c) in column 2, opposite the entry for paragraph 10 in column 1, for “they require” substitute “the claimant requires”;

(d) in column 2, opposite the entry for paragraph 13 in column 1, for “individual” substitute “claimant”; and

(e) in column 2, opposite the entry for paragraph 15 in column 1, in paragraph 15(b) for “stopping,” substitute “stopping or”.

(35) In column 1 of paragraph 13 of Part 2 of Schedule 5 (prescribed amounts in special cases) for “the other” substitute “each”.

(36) In paragraph 19 of Schedule 6 (Housing Costs)—

(a) sub-paragraph (7)(i) shall stand as sub-paragraph (7ZA); and

(b) in sub-paragraph (7ZA) for “in sub-paragraph (b)” substitute “For the purposes of sub-paragraph (7)(b)”.

(37) In paragraph 2A of Schedule 8 (sums to be disregarded in the calculation of income) for “claimant’s participation in a service user group” substitute “claimant participating as a service user”.

(1)

S.I. 2008/794; relevant amending instruments are S.I. 2008/2428, 2009/362 and 2655, 2010/442, 671 and 840, 2011/228, 674 and 2425, 2012/919 and 3096 and 2013/235. Regulation 43(1)(e) is modified by S.I. 2013/602.

(2)

The Destitution Domestic Violence concession is published by the Home Office at: http://www.ukba.homeoffice.gov.uk/.

(3)

S.I. 2005/1379, amended by S.I. 2013/630; there are other amending instruments but none is relevant.

(4)

Section 11J was inserted by section 57(1) and (2) of the Welfare Reform Act 2012 (c. 5).