The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations (Northern Ireland) 2015

Statutory Rules of Northern Ireland

2015 No. 185

Social Security

The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations (Northern Ireland) 2015

Made

26th March 2015

Coming into operation

30th March 2015

The Department for Social Development makes the following Regulations in exercise of the powers conferred by sections 1(1), 165(1) and (4) of the Social Security Administration (Northern Ireland) Act 1992(1), and now vested in it(2), and sections 8(1), (5) and (6), 22, 25(2) and 29 of, and paragraph 1 of Schedule 2, and paragraphs 1, 7 and 8 of Schedule 4 to, the Welfare Reform Act (Northern Ireland) 2007(3).

Citation, commencement and interpretation

1.—(1) These Regulations may be cited as the Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations (Northern Ireland) 2015 and shall come into operation on 30th March 2015.

(2) The Interpretation Act (Northern Ireland) 1954(4) shall apply to these Regulations as it applies to an Act of the Assembly.

Application

2.—(1) These Regulations apply to a person who falls within paragraph (2).

(2) A person falls within this paragraph where that person—

(a) makes or is treated as making a claim for an employment and support allowance on or after 30 March 2015; or

(b) makes and is pursuing an appeal against a decision of the Department that embodies a determination that the person does not have limited capability for work, and that decision was made in respect of a claim made, or treated as made, on or after 30 March 2015.

(3) For the purposes of paragraph (2) “employment and support allowance” means an allowance under Part 1 of the Welfare Reform Act (Northern Ireland) 2007.

Amendment of the Employment and Support Allowance Regulations

3.—(1) The Employment and Support Allowance Regulations (Northern Ireland) 2008(5) are amended in accordance with paragraphs (2) and (3).

(2) 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)—

(a) for paragraph (2)(b)(6) substitute—

“(b) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined—

(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work, or

(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23,

unless paragraph (4) applies.”;

(b) for paragraph (3) substitute—

“(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a relevant decision of the Department, and that appeal has not yet been determined by an appeal tribunal.”; and

(c) after paragraph (4)(7) add—

“(5) In this regulation a “relevant decision” means—

(a) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work; or

(b) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work since a previous determination by the Department or appellate authority that the claimant does have limited capability for work.

(6) In this regulation “appellate authority” means an appeal tribunal, a Commissioner (as defined in section 167 of the Social Security Administration (Northern Ireland) 1992), the Court of Appeal or the Supreme Court.”.

(3) For regulation 147A(1)(8) (claimants appealing a decision) substitute—

“(1) This regulation applies where a claimant has made and is pursuing an appeal against a relevant decision of the Department as defined in regulation 30.”.

Amendment of the Claims and Payments Regulations

4.  Renumber regulation 3 of the Claims and Payments Regulations (Northern Ireland) 1987(9) (claims not required for entitlement to benefit in certain cases) as paragraph (1) of that regulation and in the renumbered paragraph (1)—

(a) for sub-paragraph (j)(10) substitute—

“(j) in the case of an employment and support allowance where—

(i) the beneficiary has made and is pursuing an appeal against a relevant decision of the Department, and

(ii) that appeal relates to a decision to terminate or not to award a benefit for which a claim was made.”; and

(b) after paragraph (1) add—

“(2) In this regulation—

“appellate authority” means an appeal tribunal, a Commissioner, the Court of Appeal or the Supreme Court; and

“relevant decision” means—

(a)

a decision that embodies the first determination by the Department that the claimant does not have limited capability for work; or

(b)

a decision that embodies the first determination by the Department that the claimant does not have limited capability for work since a previous determination by the Department or appellate authority that the claimant does have limited capability for work.”.

Amendment of the Employment and Support Allowance Existing Awards Regulations

5.  For paragraph 4(d) of Schedule 2 to the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010(11) (modification of the Employment and Support Allowance Regulations) substitute—

“(d) regulation 30 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made) is to be read as if, for paragraph (3), there was substituted—

“(3) Paragraph 2(b) does not apply where a claimant has made and is pursuing an appeal against a conversion decision that embodies a determination that the claimant does not have limited capability for work and that appeal has not yet been determined by an appeal tribunal.”.”.

Revocations

6.  Regulation 3 of the Social Security (Miscellaneous Amendments No. 4) Regulations (Northern Ireland) 2010(12) and regulation 11(13)(a) of the Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013(13) are revoked.

Sealed with the Official Seal of the Department for Social Development on 26th March 2015

(L.S.)

Anne McCleary

A senior officer of the Department for Social Development

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make amendments to the Employment and Support Allowance Regulations (Northern Ireland) 2008 (“the Employment and Support Allowance Regulations”) concerning the circumstances when a claimant is treated as having limited capability for work pending an assessment of limited capability for work and the payment of pending appeal awards in respect of second or consecutive claims. Consequential amendments are also made to related provisions within the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 (“the Claims and Payments Regulations”) and the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010 (the Employment and Support Allowance Existing Awards Regulations”).

Regulation 1 contains general provisions.

Regulation 2 sets out to whom these Regulations apply. The amendments apply to a person who falls within paragraph (2) of that regulation. Paragraph (2) provides that a person falls within that paragraph where they make, or are treated as making, a claim after these Regulations come into operation, or have made and are pursuing an appeal against a decision that was made in respect of a claim made, or treated as made, after these Regulations come into operation.

Regulation 3 amends 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). First, it extends the period which prevents a claimant who is making a new claim for an employment and support allowance (“ESA”) from being treated as having limited capability for work pending a work capability assessment where their last work capability assessment outcome (if indeed there was one) was that they did not have limited capability for work (they have been found fit for work). Second, for claimants who have been treated as not having limited capability for work following a failure to return information or attend for or submit to a medical examination the current rules remain the same (they are prevented from being treated as having limited capability for work pending a work capability assessment where within 6 months preceding the date of claim they have been treated as not having limited capability for work for a failure to return information or attend for or submit to a medical examination). On a second or consecutive claim, a claimant would still be treated as having limited capability for work pending an assessment of limited capability for work where since the last determination, the claimant is suffering from a new condition or their pre-existing condition has significantly worsened.

Regulation 4 makes consequential amendments to regulation 3 of the Claims and Payments Regulations (claims not required for entitlement to benefit in certain cases). It amends the circumstances in which claims are not required for an award of ESA and limits that to circumstances where a claimant is pursuing an appeal against the first decision that embodies a determination that they do not have limited capability for work, or the first decision following a period of limited capability for work.

Regulation 5 amends the Employment and Support Allowance Existing Awards Regulations in so far as those Regulations make modifications to the Employment and Support Allowance Regulations. These amendments are necessary to ensure that the modifications set out in the Employment and Support Allowance Existing Awards Regulations continue to work effectively in light of the amendments which are being made to the Employment and Support Allowance Regulations by regulation 3.

Regulation 6 makes consequential revocations.

These Regulations make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, the Social Security Administration (Northern Ireland) Act 1992, are not subject to the requirement of section 149(2) of that Act for prior reference to the Social Security Advisory Committee.

(1)

1992 c. 8; section 165(1) was amended by paragraph 49(2) of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671) and section 18(5) of the National Insurance Contributions Act 2014 (c. 7)

(2)

See Article 8(b) of S.R. 1999 No. 481

(3)

2007 c. 2 (N.I.)

(4)

1954 c.33 (N.I.)

(5)

S.R. 2008 No. 280; relevant amending Regulations are S.R. 2010 No. 200 and S.R. 2013 No. 246

(6)

Paragraph (2)(b) was amended by regulation 11(13)(a) of S.R. 2013 No. 246

(7)

Paragraph (4) was added by regulation 11(13)(c) of S.R. 2013 No.246

(8)

Regulation 147A(1) was inserted by regulation 9(15) of S.R. 2010 No. 200

(9)

S.R. 1987 No. 465; relevant amending Regulation is S.R. 2010 No. 200

(10)

Sub-paragraph (j) was substituted by regulation 3 of S.R. 2010 No. 200

(11)

S.R. 2010 No. 312

(12)

S.R. 2010 No. 200

(13)

S.R. 2013 No. 246