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

Changes over time for: Section 11

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Changes to legislation:

There are outstanding changes not yet made by the legislation.gov.uk editorial team to The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013. Any changes that have already been made by the team appear in the content and are referenced with annotations.

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Changes and effects yet to be applied to Article 11:

art. 9-22 applied by S.I. 2015/101 art. 5
art. 9-22 applied by S.I. 2015/1537 art. 6
art. 9-22 applied by S.I. 2015/1930 art. 5
art. 9-22 applied by S.I. 2015/33 art. 5
art. 9-22 applied by S.I. 2015/634 art. 6
art. 9-22 applied by S.I. 2016/33 art. 5
art. 9-22 applied by S.I. 2016/407 art. 5
art. 9-22 applied by S.I. 2019/167 art. 4(12)
art. 11(2)(c) words omitted by S.I. 2017/204 Sch. 1 para. 9(3)

Changes and effects yet to be applied to the whole Instrument associated Parts and Chapters:

Order amended by S.I. 2015/634 art. 8(1)(3)

Whole provisions yet to be inserted into this Instrument (including any effects on those provisions):

Sch. 5 para. 7(e) amended by S.I. 2015/1537 art. 5(1)art. 5(2)(a)
Sch. 5 para. 3 amended by S.I. 2015/32 art. 3(1) 4(5)(a)
Sch. 5 para. 4 amended by S.I. 2015/32 art. 3(3) 5(a)
Sch. 5 para. 6 amended by S.I. 2015/32 art. 3(1) 4(5)(b)
Sch. 5 para. 7 amended by S.I. 2015/32 art. 3(3) 5(b)
Sch. 5 amended by S.I. 2018/138 art. 3(1)art. 3(2)(k)
Sch. 5 modified by S.I. 2015/101 art. 2(2)-(4)
art. 3A amended by S.I. 2018/138 art. 3(1)art. 3(2)(d)-(f)
art. 3A applied by S.I. 2015/101 art. 3(5)
art. 3A applied by S.I. 2015/1537 art. 3(5)
art. 3A applied by S.I. 2015/1930 art. 3(5)
art. 3A applied by S.I. 2015/33 art. 3(5)
art. 3A applied by S.I. 2015/634 art. 3(5)
art. 3A applied by S.I. 2016/33 art. 3(5)
art. 3A applied by S.I. 2016/407 art. 3(5)
art. 5(8) applied by S.I. 2019/167 art. 4(9)
art. 5A amended by S.I. 2015/634 art. 8(4)(5)
art. 5A revoked by S.I. 2022/752 Sch. para. 2(2)
art. 5A(1) words inserted by S.I. 2017/483 art. 2(2)
art. 5A(1) words inserted by S.I. 2019/10 reg. 3(1)
art. 5A(1) words inserted by S.I. 2019/167 art. 5(2)(a)
art. 5A(1) words omitted by S.I. 2019/27 reg. 4(1)
art. 5A(1) words omitted by S.I. 2022/302 Sch. para. 1(2)
art. 6(1)(e)(ii) and word omitted by S.I. 2022/752 Sch. para. 2(3)
art. 6(1)(e)(ii) words inserted by S.I. 2017/483 art. 2(3)
art. 6(1)(e)(ii) words omitted by S.I. 2022/302 Sch. para. 1(3)
art. 6(1)(e)(ii) words substituted by S.I. 2019/167 art. 5(2)(b)

[F1Transition from new style ESA]

11.—[F2(1) This article applies where a person—

(a)makes, or is treated as making, a claim for an employment and support allowance and Part 1 of the 2007 Act, as it has effect apart from the provisions of Schedule 3, and Part 1 of Schedule 14, to the Act that remove references to an income-related allowance, applies in relation to the claim; or

(b)has a new style ESA award and article 6(2) applies in relation to the award (which award therefore continues as an old style ESA award),

and, in the case of sub-paragraph (a), the condition referred to in paragraph (1A) is satisfied.

(1A) The condition is that—

(a)the person previously made, or was treated as having made, a claim for an employment and support allowance and, under article 4, Part 1 of the 2007 Act, as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the Act that remove references to an income-related allowance, applied in relation to the claim;

(b)a notice was issued to the person under regulation 4 of the 2010 Transitional Regulations and, under article 4, Part 1 of the 2007 Act, as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the Act that remove references to an income-related allowance, applied in relation to the notice; or

(c)the person previously—

(i)had an old style ESA award immediately before the appointed day in relation to a case of a claim for universal credit referred to in article 4(2)(a) to (d) (and any award made in respect of the claim), or an award of universal credit referred to in article 4(2)(e) or (f); and

(ii)the old style ESA award consisted of or included a contributory employment and support allowance (which allowance therefore continued as a new style ESA award).]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii)in [F3paragraph (4)(c)], the reference to regulation 22 included a reference to regulation 18 of the ESA Regulations 2013;

(g)in regulation 34(4) (determination of limited capability for work-related activity), the reference to a determination about whether a claimant has, or is to be treated as having or not having, limited capability for work-related activity included such a determination that was made under Part 5 of the ESA Regulations 2013; F4...

[F5(ga)in regulation 45(10) (exempt work), the reference to an employment and support allowance included a reference to a new style ESA award;

(gb)in regulation 144(2)(a) (waiting days), where the claimant was entitled to a new style ESA award with effect from the first day of a period of limited capability for work by virtue of regulation 85(2)(a) of the ESA Regulations 2013 and, with effect from [F6a day between the second and the seventh day of that period (including the second and the seventh day)], that award continued as an old style ESA award in the circumstances referred to in paragraph (1)(c) of this article, the reference to an employment and support allowance included a reference to the new style ESA award;]

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

[F7(i)in regulation 152 (short absence), where—

(i)a claimant had a new style ESA award in the circumstances referred to in paragraph (1)(b) of this article;

(ii)a temporary absence from Great Britain commenced when regulation 89 of the ESA Regulations 2013 applied to the claimant; and

(iii)the first 4 weeks of the temporary absence had not ended immediately before the first day of entitlement to the old style ESA award,

the initial words of regulation 152 included a reference to the claimant being entitled to the old style ESA award during the remainder of the first 4 weeks of the temporary absence that commenced when regulation 89 of the ESA Regulations 2013 applied to the claimant;

(j)in regulation 153 (absence to receive medical treatment)—

(i)a claimant had a new style ESA award in the circumstances referred to in paragraph (1)(b) of this article;

(ii)a temporary absence from Great Britain commenced when regulation 90 of the ESA Regulations 2013 applied to the claimant; and

(iii)the first 26 weeks of the temporary absence had not ended immediately before the first day of entitlement to the old style ESA award,

the initial words of paragraph (1) of regulation 153 included a reference to the claimant being entitled to the old style ESA award during the remainder of the first 26 weeks of the temporary absence that commenced when regulation 90 of the ESA Regulations 2013 applied to the claimant;

(k)in regulation 157 (disqualification for misconduct etc)—

(i)in paragraph (3), for “Paragraph (2) does” there were substituted “ Paragraphs (2) and (4) do ”; and

(ii)after paragraph (3) there were inserted—

“(4) Subject to paragraph (3), a claimant is to be disqualified for receiving an employment and support allowance for any period determined by the Secretary of State under regulation 93(2) of the Employment and Support Allowance Regulations 2013 less any days during that period on which those Regulations applied to the claimant.

(5) Where paragraph (4) applies to a claimant, paragraph (2) is not to apply to that claimant with respect to any matter referred to in paragraph (1) that formed the basis for the claimant's disqualification under regulation 93(2) of the Employment and Support Allowance Regulations 2013.”; F8...

(l)in regulation 159 (treating a claimant as not having limited capability for work), the existing words became paragraph (1) and—

(i)at the beginning of paragraph (1), there were inserted “Subject to paragraph (2),”; and

(ii)after paragraph (1), there were inserted—

“(2) A claimant is to be treated as not having limited capability for work if—

(a)under Part 1 of the Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the Welfare Reform Act 2012 that remove references to an income-related allowance (“the former law”), the claimant was disqualified for receiving an employment and support allowance during a period of imprisonment or detention in legal custody;

(b)Part 1 of the Act as it has effect apart from the amendments made by Schedule 3, and Part 1 of Schedule 14, to the Welfare Reform Act 2012 that remove references to an income-related allowance (“the current law”) applied to the claimant with effect from a day that occurred during the period of imprisonment or detention in legal custody referred to in sub-paragraph (a) and during the period of six weeks with effect from the day on which the claimant was first disqualified as referred to in sub-paragraph (a); and

(c)the total of—

(i)the period for which the claimant was disqualified for receiving an employment and support allowance during the period of imprisonment or detention in legal custody when the former law applied to the claimant; and

(ii)the period for which the claimant was disqualified for receiving a contributory employment and support allowance during the period of imprisonment or detention in legal custody when the current law applied to the claimant,

amounts to more than six weeks.”][F9; and

(m)in Schedule 6 (housing costs), in paragraphs 8(1) and 9(1), each reference to an employment and support allowance included a reference to new style ESA.]

[F10(3) Subject to paragraph (4), where this article applies, the 2007 Act is to be read as though—

(a)the reference to a contributory allowance in section (1A)(1) and (4) to (6);

(b)the first reference to a contributory allowance in section (1A)(3); and

(c)the first reference to a contributory allowance in section 1B,

included a reference to a new style ESA award.

(4) Where this article applies and the 2010 Transitional Regulations apply to a person, paragraph (3)(c) becomes paragraph (3)(b) and, for paragraph (3)(a) and (b), there is substituted—

“(a)in section 1A as substituted by the 2010 Transitional Regulations—

(i)the reference to a contributory allowance in section 1A(1), (4) and (5); and

(ii)the first reference to a contributory allowance in section 1A(3); and”.

(5) Where this article applies and a claimant—

(a)had a new style ESA award in the circumstances referred to in paragraph (1)(b); and

(b)the new style ESA award had not been preceded by an old style ESA award in the circumstances referred to in paragraph (1A)(c),

section 24(2) of the 2007 Act is to be read as if the beginning of the assessment phase (subject to section 24(3)) was the first day of the period for which the claimant was entitled to the new style ESA award.]

Textual Amendments

F1Art. 11 heading substituted (with application in accordance with art. 9(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(a)

F2Art. 11(1)(1A) substituted for art. 11(1) (with application in accordance with art. 9(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(b)

F3Words in art. 11(2)(f)(ii) substituted (29.10.2013) by The Welfare Reform Act 2012 (Commencement No. 13 and Transitional and Transitory Provisions) Order 2013 (S.I. 2013/2657), art. 5(a)

F4Word in art. 11(2)(g) omitted (with application in accordance with art. 9(1) of the amending S.I.) by virtue of The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(c)

F5Art. 11(2)(ga)(gb) inserted (with application in accordance with art. 9(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(c)

F6Words in art. 11(2)(gb) substituted (24.11.2014) by The Welfare Reform Act 2012 (Commencement No. 9, 11, 13 14, 16, 17 and 19 and Transitional and Transitory Provisions (Amendment)) Order 2014 (S.I. 2014/3067), art. 7(a)

F7Art. 11(2)(i)-(l) inserted (with application in accordance with art. 9(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(d)

F8Word in art. 11(2)(k) omitted (16.6.2014 for specified purposes) by virtue of The Welfare Reform Act 2012 (Commencement No. 9, 11, 13, 14 and 16 and Transitional and Transitory Provisions (Amendment)) Order 2014 (S.I. 2014/1452), art. 11(1)(2)

F9Art. 11(2)(m) and word inserted (16.6.2014 for specified purposes) by The Welfare Reform Act 2012 (Commencement No. 9, 11, 13, 14 and 16 and Transitional and Transitory Provisions (Amendment)) Order 2014 (S.I. 2014/1452), art. 11(1)(2)

F10Art. 11(3)-(5) inserted (with application in accordance with art. 9(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9(2)(e)

Modifications etc. (not altering text)