The Employment and Support Allowance Regulations (Northern Ireland) 2008

PART 2 N.I. THE ASSESSMENT PHASE

The end of the assessment phase N.I.

4.—(1) Subject to [F1 paragraphs (2) and (3)] and [F2 regulation 5] , the assessment phase in relation to a claimant ends on the last day of [F3 the relevant period] beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.

[F4 (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 [F5 the relevant period] —

(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).]

[F6 (4) In this regulation “the relevant period” means the period of 13 weeks beginning with and including—

(a) the first day of the assessment phase as determined under section 24(2)(a) of the Act; or

(b) where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.]

(5) In paragraph (4) “extended period of sickness” means a period in which the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (extended period of sickness).

Textual Amendments

F1 Words in reg. 4(1) substituted (29.10.2013) by The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 (S.R. 2013/246), regs. 1(1), 11(3)(a)

F2 Words in reg. 4(1) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(3)

F3 Words in reg. 4(1) substituted (30.3.2015) by The Jobseeker’s Allowance (Extended Period of Sickness) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/138), regs. 1(1), 4(2)(a)

F4 Reg. 4(2)(3) substituted for reg. 4(2) (29.10.2013) by The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 (S.R. 2013/246), regs. 1(1), 11(3)(b)

F5 Words in reg. 4(3) substituted (30.3.2015) by The Jobseeker’s Allowance (Extended Period of Sickness) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/138), regs. 1(1), 4(2)(b)

F6 Reg. 4(4)(5) added (30.3.2015) by The Jobseeker’s Allowance (Extended Period of Sickness) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/138), regs. 1(1), 4(2)(c)

Commencement Information

I1 Reg. 4 in operation at 27.10.2008, see reg. 1(1)

The assessment phase – previous claimants N.I.

5.—(1) Where the circumstances in paragraph (2) apply in relation to a claimant the assessment phase—

(a) begins on the first day of the period for which the claimant was previously entitled to an employment and support allowance; and

(b) subject to [F7 paragraphs (3), (3A) and (4)] , ends on the day when the sum of the period for which the claimant was previously entitled to an employment and support allowance and the period for which the claimant is currently entitled to such an allowance is 13 weeks.

[F8 (1A) For the purposes of paragraph (1), any period when the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (extended period of sickness),

is to be treated as a period when the claimant was previously entitled to an employment and support allowance.]

(2) The circumstances are that—

(a) (i) the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) or (2),

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work, F9 ...

(iii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; [F10 and]

[F11 (iv) the period for which the claimant was previously entitled was no more than 13 weeks; or]

(b) (i) regulation 145(3) or (5) applies to the claimant, F12 ...

(ii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance [F13 and

(iii) the period for which the claimant was previously entitled was no more than 13 weeks.]

[F14 (c) (i) the claimant’s current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) or (2),

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii) the previous period of limited capability for work was terminated by virtue of a determination that the claimant did not have limited capability for work,

(iv) the period for which the claimant was previously entitled was no more than 13 weeks, and

(v) a determination is made in relation to the current period of limited capability for work that the claimant has or is treated as having limited capability for work, other than under regulation 30; or

(d) (i) the claimant’s current period of limited capability for work is to be treated as a condition of an earlier period of limited capability for work under regulation 145(1) or (2),

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii) in relation to the previous award of an employment and support allowance, a determination was made that the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv) the period for which the claimant was previously entitled was no more than 13 weeks.]

[F15 (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).]

[F16 (4) Where a person has made and is pursuing an appeal against a decision of the Department that embodies a determination that the claimant does not have limited capability for work—

(a) [F17 paragraphs (3) and (3A) do] not apply; and

(b) paragraph (1) does not apply to any period of limited capability for work to which regulation 147A(2) applies until a determination of limited capability for work has been made following the determination of the appeal by the appeal tribunal.]

Textual Amendments

F7 Words in reg. 5(1)(b) substituted (29.10.2013) by The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 (S.R. 2013/246), regs. 1(1), 11(4)(a)

F8 Reg. 5(1A) inserted (30.3.2015) by The Jobseeker’s Allowance (Extended Period of Sickness) (Amendment) Regulations (Northern Ireland) 2015 (S.R. 2015/138), regs. 1(1), 4(3)

F9 Word in reg. 5(2)(a)(ii) omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(b)(i)

F10 Word in reg. 5(2)(a)(iii) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(b)(ii)

F11 Reg. 5(2)(a)(iv) inserted (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(b)(iii)

F12 Word in reg. 5(2)(b)(i) omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(b)(iv)

F13 Reg. 5(2)(b)(iii) and word added (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(b)(v)

F14 Reg. 5(2)(c)(d) inserted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations (Northern Ireland) 2012 (S.R. 2012/160), regs. 1, 2(2)

F15 Reg. 5(3)(3A) substituted for reg. 5(3) (29.10.2013) by The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 (S.R. 2013/246), regs. 1(1), 11(4)(b)

F16 Reg. 5(4) added (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(4)(c)

F17 Words in reg. 5(4)(a) substituted (29.10.2013) by The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 (S.R. 2013/246), regs. 1(1), 11(4)(c)

Commencement Information

I2 Reg. 5 in operation at 27.10.2008, see reg. 1(1)

The assessment phase – claimants appealing against a decision N.I.

F18 6.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F18 Reg. 6 omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(5)

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 N.I.

7.—(1) Subject to paragraph (2), sections 2(2)(a) and (3)(a) and 4(4)(a) and (5)(a) of the Act do not apply where—

(a) a claimant is terminally ill and has either—

(i) made a claim expressly on the ground of being terminally ill, or

(ii) made an application for supersession or revision in accordance with the Decisions and Appeals Regulations which contains an express statement that the claimant is terminally ill; F19 ...

[F20 (b) the case is a relevant linked case;]

(c) (i) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support coming to an end;

(ii) in relation to that entitlement to income support, immediately before it ended the claimant’s applicable amount included the disability premium by virtue of satisfying the conditions in paragraphs 11 and 12 of Schedule 2 to the Income Support Regulations, and

(iii) that entitlement to income support ended solely by virtue of the coming into operation, in relation to the claimant, of the Social Security (Lone Parents and Miscellaneous Amendments) Regulations (Northern Ireland) 2008.

[F21 (1A) For the purposes of paragraph (1)(b) a relevant linked case is a case mentioned in paragraph (1B) where a period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 145(1) or (2).

(1B) Paragraph (1A) applies to the following cases—

(a) case 1 is where—

(i) the claimant was entitled to an employment and support allowance (including entitlement to a component under sections 2(2), 2(3), 4(4) or 4(5) of the Act) in the earlier period of limited capability for work, and

(ii) the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by virtue of a determination that the claimant did not have limited capability for work;

(b) case 2 is where—

(i) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii) the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of a determination that the claimant did not have, or was treated as not having, limited capability for work, and

(iv) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30;

(c) case 3 is where—

(i) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii) the previous period for which the claimant was entitled to an employment and support allowance was terminated before it could be determined whether the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30; and

(d) case 4 is where—

(i) the claimant was entitled to an employment and support allowance (including entitlement to a component under sections 2(2), 2(3), 4(4) or 4(5) of the Act) in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was terminated because it was determined that the claimant did not have limited capability for work or was treated as not having limited capability for work, and

(iii) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30.]

(2) Paragraph (1)(b) does not apply [F22 to any period of limited capability for work to which regulation 147A(2) applies until the determination of limited capability for work has been made following the determination of the appeal by the appeal tribunal] .

Textual Amendments

F19 Word in reg. 7(1)(a) omitted (2.12.2008) by virtue of The Social Security (Lone Parents and Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/478), regs. 1(1), 12(a)

F20 Reg. 7(1)(b) substituted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations (Northern Ireland) 2012 (S.R. 2012/160), regs. 1, 2(3)(a)

F21 Reg. 7(1A)(1B) inserted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations (Northern Ireland) 2012 (S.R. 2012/160), regs. 1, 2(3)(b)

F22 Words in reg. 7(2) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010 (S.R. 2010/200), regs. 1, 9(6)(b)

Commencement Information

I3 Reg. 7 in operation at 27.10.2008, see reg. 1(1)