The Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010

Person to be treated as capable of work at the end of the period covered by medical evidence16A

Where the Department is satisfied that it is appropriate in the circumstances of the case then a person may be treated as being capable of work if—

a

the person has supplied medical evidence in accordance with regulation 28(2)(a);

b

the period for which medical evidence was supplied has ended;

c

the Department has requested further medical evidence; and

d

the person has not, before whichever is the later of either the end of the period of six weeks beginning with the date of the Department’s request or the end of six weeks beginning with the day after the end of the period for which medical evidence was supplied—

i

supplied further medical evidence, or

ii

otherwise made contact with the Department to indicate a wish to have the question of incapacity for work determined.

5E

A decision under Article 9 or 11 awarding an employment and support allowance may be revised if—

a

the decision of the Department awarding an employment and support allowance was made on the basis that the claimant had made and was pursuing an appeal against a decision of the Department that the claimant did not have limited capability for work (“the original decision”); and

b

the appeal to the appeal tribunal in relation to the original decision is successful.

5F

A decision under Article 9 or 11 awarding an employment and support allowance may be revised if—

a

the person’s current period of limited capability for work is treated as a continuation of another such period under regulation 145(1) and (2) of the Employment and Support Allowance Regulations; and

b

regulation 7(1)(b) of those Regulations applies.

q

is an employment and support allowance decision where, since the decision was made, the Department has—

i

received medical evidence from a health care professional approved by the Department, or

ii

made a determination that the claimant is to be treated as having limited capability for work in accordance with regulation 20, 25, 26 or 33(2) of the Employment and Support Allowance Regulations.

Modification of the relevant benefit year13

1

Where paragraph (2) applies, paragraph 3(1)(f) of Schedule 1 to the Act has effect as if “relevant benefit year” is any benefit year which includes all or part of the period of limited capability for work which includes the relevant benefit week.

2

This paragraph applies where a claimant has made a claim to employment and support allowance but does not satisfy—

a

the first contribution condition;

b

the second contribution condition; or

c

both contribution conditions,

but would satisfy those conditions if the modified definition of “relevant benefit year” provided in paragraph (1) applied.

or

c

that it has not, within the 6 months preceding the date of claim, been determined, in relation to the claimant’s entitlement to any benefit, allowance or advantage, which is dependent upon the claimant being incapable of work, that the claimant is capable of work, or is to be treated as capable of work under regulation 7 or 8 of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 199523 (“the 1995 Regulations”), unless—

i

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,

ii

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

iii

in the case of a claimant who was treated as capable of work under regulation 7 of the 1995 Regulations (failure to provide information), the claimant has since provided the information requested by the Department under that regulation.

Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidence32A

Where the Department is satisfied that it is appropriate in the circumstances of the case then a claimant may be treated as not having limited capability for work if—

a

the claimant has supplied medical evidence in accordance with regulation 30(2)(a);

b

the period for which medical evidence was supplied has ended;

c

the Department has requested further medical evidence; and

d

the claimant has not, before whichever is the later of either the end of the period of 6 weeks beginning with the date of the Department’s request or the end of 6 weeks beginning with the day after the end of the period for which medical evidence was supplied—

i

supplied further medical evidence, or

ii

otherwise made contact with the Department to indicate a wish to have the question of limited capability for work determined.

3

A claimant may be required to take part in a work-focused health-related assessment either by attendance in person or by telephone.

Claimants appealing a decision147A

1

This regulation applies where a claimant 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.

2

Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Department under regulation 19 shall not be made until the appeal is determined by the appeal 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 Department 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 or struck out,

the claimant is to be treated as not having limited capability for work with effect from the beginning of the first day of the benefit week following the date on which the Department was notified by the appeal tribunal that the appeal is dismissed, withdrawn or struck out.

6

Where a claimant’s appeal is successful, subject to paragraph (7), any finding of fact or other determination embodied in or necessary to the decision of the appeal tribunal or on which the appeal tribunal’s decision is based shall be conclusive for the purposes of the decision of the Department, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.

7

Paragraph (6) does not apply where, due to a change of circumstances after entitlement to which this regulation applies began, the Department is satisfied that it is no longer appropriate to rely on such finding or determination.

5A

In the case of a claimant who receives a payment to which regulation 92(2) applies, £20, except where regulation 45(2) to (4) applies to the claimant, in which case the amounts specified in paragraph 6 shall apply, but only up to a maximum of £20.