Amendment of the Employment and Support Allowance Regulations
2.—(1) The Employment and Support Regulations (Northern Ireland) 2008(1) are amended in accordance with paragraphs (2) to (4).
(2) After regulation 5(2)(b)(2) (the assessment phase – previous claimants) insert—
“(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.”.
(3) 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)—
(a)for paragraph (1)(b)(3) substitute—
“(b)the case is a relevant linked case;”; and
(b)after paragraph (1) insert—
“(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.”.
(4) After regulation 35 (certain claimants to be treated as having limited capability for work-related activity) insert—
“Relevant linked cases – limited capability for work-related activity
35A. A claimant is to be treated as having limited capability for work-related activity where—
(a)they fall within case 1, as defined in regulation 7(1B)(a)(4); and
(b)in respect of the earlier period of limited capability for work referred to in regulation 7(1B)(a)(i), they had been entitled to a support component under sections 2(2) or 4(4) of the Act.”.
S.R. 2008 No. 280; relevant amending Regulations are S.R. 2008 No. 478 and S.R. 2010 No. 200
Regulation 5 was amended by regulation 9(4) of S.R. 2010 No. 200
Sub-paragraph (b) was amended by regulation 9(6)(a) of S.R. 2010 No. 200
Paragraph (1B) is inserted by regulation 2(3)(b) of these Regulations