Regulation 16(1)

SCHEDULE 2N.I.Modification of statutory provisions: after the conversion phase

PART 1N.I.MODIFICATION OF PART 1 OF THE ACT

1.  Part 1 of the Act is to be read as if—N.I.

(a)any reference to a claimant were a reference to a person in relation to whom a conversion decision has been made under these Regulations;

(b)in section 1—

[F1(i)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 Existing Awards Regulations, 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 (Northern Ireland) 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]

(ii)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 Existing Awards Regulations 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 Existing Awards Regulations which was based on an award of income support to which the person was entitled.”;

(c)in section 2—

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

(ii)except for the purposes of applying regulation 147A of the Employment and Support Allowance Regulations(1) (claimants appealing a decision) in subsections (2)(a) and (3)(a), references to the assessment phase were references to the conversion phase;

(d)in section 4(4)(a) and (5)(a), except for the purposes of applying regulation 147A of the Employment and Support Allowance Regulations as modified by paragraph 4(i) of this Schedule, references to the assessment phase were to the conversion phase.

[F2(e)in section 24(1) after the definition of “entitled” there were inserted—

““the Existing Awards Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;”;

(f)in Schedule 1, 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 Existing Awards Regulations to an employment and support allowance which is attributable to an income-related allowance.

(1B) In determining for the purposes of sub-paragraph (1)(a) whether P’s income exceeds the applicable amount, the amount of any transitional addition to which P is entitled under the Existing Awards 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 Existing Awards 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

Commencement Information

I1Sch. 2 para. 1 in operation at 1.10.2010, see reg. 1

PART 2N.I.MODIFICATION OF OTHER ACT AND ORDER

The Social Security Contributions and Benefits (Northern Ireland) ActN.I.

2.  Section 44B of the Contributions and Benefits Act(2) (deemed earnings factors: 2010-11 onwards) is to be read as if, after subsection (5), there were inserted—N.I.

“(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 and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010, any entitlement arising by virtue of regulation 5A(2)(ba) of the Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations (Northern Ireland) 2001(3) (earnings factor credits eligibility for pensioners to whom employment and support allowance was payable).”.

Commencement Information

I2Sch. 2 para. 2 in operation at 1.10.2010, see reg. 1

The Social Security (Northern Ireland) OrderN.I.

3.  Schedule 3 to the Social Security (Northern Ireland) Order 1998(4) (decisions against which an appeal lies) is to be read as if, after paragraph 8D, there were inserted—N.I.

“Conversion of certain existing awards into awards of an employment and support allowanceN.I.

8E.  A conversion decision within the meaning of the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010.”.

Commencement Information

I3Sch. 2 para. 3 in operation at 1.10.2010, see reg. 1

PART 3N.I.MODIFICATION OF THE EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS

4.  The Employment and Support Allowance Regulations are to be read as if—N.I.

(a)any reference to a claimant were a reference to a person in relation to whom a conversion decision has been made under these Regulations;

(b)Part 2 (the assessment phase) does not apply, except for the purposes of applying regulation 147A of those Regulations;

(c)Part 3 (conditions of entitlement – contributory allowance) does not apply;

(d)in regulation 30(3) (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made), 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, for “a decision” there were substituted “a conversion decision”;

(e)in regulation 45 (exempt work) for the definition of “specified work” in paragraph (10), there were substituted—

““specified work” means—

(a)

work done in accordance with paragraph (4); or

(b)

work done in accordance with regulation 17(4)(a) of the Social Security (Incapacity for Work) (General) Regulations (Northern Ireland) 1995(5).”;

(f)in regulation 67 (prescribed amounts)—

(i)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 and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010.”,

(ii)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 and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010.”;

(g)in regulation 68(1) (polygamous marriages), 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 and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010.”;

(h)regulation 75 (payments treated as not being payments to which section 3 of the Act applies) were subject to the same modifications as are specified in paragraph 2(d) of Schedule 1;

(i)for regulation 147A (claimants appealing a decision), 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, 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.

[F3(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 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 [F4with effect from the day specified in paragraph (5A).]

[F5(5A) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Department either—

(a)receives the notification from the clerk to the appeal tribunal that the appeal is dismissed, withdrawn or struck out, or

(b)discontinues action on an appeal in the circumstances to which regulation 33(9) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (making of appeals and application) applies.]

(6) Where a claimant’s appeal is successful, any entitlement to which this regulation applies shall terminate [F6from the first day of the benefit week following the date on which the Department receives the appeal tribunal’s notification of that decision] .”;

(j)in Schedule 5 (special cases) any reference to the amount—

(i)applicable to a person under regulation 67(1)(a), or

(ii)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) as added by the modification in sub-paragraph (f)(i).

Textual Amendments

Commencement Information

I4Sch. 2 para. 4 in operation at 1.10.2010, see reg. 1

PART 4N.I.MODIFICATION OF OTHER SUBORDINATE LEGISLATION

The Social Security (Claims and Payments) RegulationsN.I.

5.  The Claims and Payments Regulations are to be read as if—N.I.

(a)in regulation 2(1) after the definition of “employment officer”(6) there were inserted—

“the Existing Awards Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;”;

(b)in regulation 3 (claims not required for entitlement to benefit in certain cases) after paragraph (j)(7) there were added—

“(k)the beneficiary—

(i)has made and is pursuing an appeal against a conversion decision made by virtue of the Existing Awards Regulations 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 Existing Awards Regulations 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;

(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 Existing Awards Regulations.”;

(c)in regulation 26C(8) (employment and support allowance) any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under the Existing Awards Regulations;

(d)in regulation 32(1B)(9) (information to be given and changes to be notified)—

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

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

“(ab)the amount of any transitional addition to which the beneficiary is entitled under the Existing Awards Regulations; or”;

(e)in Schedule 8A(10) (deductions from benefits and direct payment to third parties) in paragraph 1 (interpretation)—

(i)in sub-paragraph (1) in the definition of “applicable amount”(11), after “Employment and Support Allowance Regulations;” there were inserted “in the case of an income-related employment and support allowance by virtue of the Existing Awards Regulations it means the aggregate of the amounts for the family as determined under regulation 67(1)(a), (b) and (d) or 68(1)(a) to (c) and (e) of the Employment and Support Allowance Regulations as modified by paragraph 4(f) and (g) of Schedule 2 to the Existing Awards Regulations and”,

(ii)in sub-paragraph (2)(12) after ““employment and support allowance” means”, there were inserted “(subject to sub-paragraph (3))”, and

(iii)after sub-paragraph (2) there were added—

“(3) In the application of sub-paragraph (2) to a beneficiary whose award of an employment and support allowance is by virtue of the Existing Awards Regulations, any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under those Regulations.

(4) Where a specified benefit awarded to a beneficiary is subject to conversion under the Existing Awards 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 Existing Awards Regulations,

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

(f)in Schedule 8C(13) (deductions from benefit in respect of child support maintenance and payment to persons with care)—

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

(ii)after that sub-paragraph 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 Existing Awards 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 Existing Awards 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 Existing Awards Regulations,

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

Commencement Information

I5Sch. 2 para. 5 in operation at 1.10.2010, see reg. 1

[F7The Social Security and Child Support (Decisions and Appeals) RegulationsN.I.

Textual Amendments

5A.  The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 are to be read as if—N.I.

(a)in regulation 1(2) (interpretation), after the definition of “the Employment and Support Allowance Regulations” there were inserted—

““the Existing Awards Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;”;

(b)in regulation 3 (revision of decisions)—

(i)in paragraph (1)(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 Existing Awards Regulations (conversion decision that existing award does not qualify for conversion), the words “within one month of the date of notification of the original decision” were omitted,

(ii)in paragraph (9), in the case of a conversion decision where there has been a change of circumstances to which regulation 12(4) of the Existing Awards Regulations (regulations 10 and 11: supplementary) applies, sub-paragraph (a) were omitted, and

(iii)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 Existing Awards Regulations”;

(c)in regulation 6(2)(a)(i) (supersession of decisions) 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 Existing Awards Regulations”.]

Textual Amendments

The Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) RegulationsN.I.

6.  Regulation 5A(2) of the Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations (Northern Ireland) 2001(14) (earnings factor credits eligibility for pensioners to whom employment and support allowance was payable) is to be read as if—N.I.

(a)the word “or” after sub-paragraph (b) were omitted; and

(b)after that sub-paragraph 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 and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 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”.

Commencement Information

I6Sch. 2 para. 6 in operation at 1.10.2010, see reg. 1

[F8Social Security (Habitual Residence) Amendment RegulationN.I.

Textual Amendments

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

(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 Existing Awards Regulations, 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 Existing Awards Regulations 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, and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;”.]

(1)

Regulation 147A was inserted by regulation 9(15) of S.R. 2010 No. 200

(2)

Section 44B was inserted by section 7(1) of the Pensions Act (Northern Ireland) 2008 (c. 1 (N.I.))

(3)

S.R. 2001 No. 440; regulation 5A was inserted by regulation 4(5) of S.R. 2010 No. 56 and the reference to regulation 5A(2)(ba) is to the modification made by paragraph 6 of this Schedule

(4)

S.I. 1998/1506(N.I. 10); paragraph 8D was inserted by paragraph 12 of Schedule 1 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.))

(5)

S.R. 1995 No. 41; regulation 17 was substituted by regulation 2(4) of S.R. 2006 No. 150 and paragraph (4) was amended by regulation 4 of S.R. 2009 No. 318 and regulation 6(4)(b) of S.R. 2010 No. 200

(6)

The definition of “employment officer” was inserted by regulation 2(2)(a) of S.R. 2000 No. 365

(7)

Paragraph (j) was substituted by regulation 3 of S.R. 2010 No. 200

(8)

Regulation 26C was inserted by regulation 13(13) of S.R. 2008 No. 286

(9)

Paragraph (1B) was inserted by regulation 2 of S.R. 2003 No. 224 and substituted by regulation 2 of S.R. 2003 No. 527

(10)

Schedule 8A was inserted by regulation 2(3) of S.R. 1988 No. 67

(11)

The definition of “applicable amount” was amended by regulation 2(26)(a)(i) of S.R. 1996 No. 354 and regulation 13(18)(a)(i) of S.R. 2008 No. 286

(12)

Sub-paragraph (2) was added by regulation 7(a)(ii) of S.R. 2008 No. 413

(13)

Schedule 8C was inserted by regulation 2(3) of S.R. 2001 No. 22

(14)

S.R. 2001 No. 440; regulation 5A was inserted by regulation 4(5) of S.R. 2010 No. 56