11(1)Subject to the provisions of this paragraph, an employed earner shall be entitled to reduced earnings allowance if—E+W+S
(a)he is entitled to a disablement pension or would be so entitled if that pension were payable where disablement is assessed at not less than 1 per cent.; and
(b)as a result of the relevant loss of faculty, he is either—
(i)incapable, and likely to remain permanently incapable, of following his regular occupation; and
(ii)incapable of following employment of an equivalent standard which is suitable in his case,
or is, and has at all times since the end of the period of 90 days referred to in section 103(6) above been, incapable of following that occupation or any such employment;
but a person shall not be entitled to reduced earnings allowance to the extent that the M1relevant loss of faculty results from an accident happening on or after 1st October 1990 (the day on which section 3 of the Social Security Act 1990 came into force) [F1and a person shall not be entitled to reduced earnings allowance—
(i)in relation to a disease prescribed on or after 10th October 1994 under section 108(2) above; or
(ii)in relation to a disease prescribed before 10th October 1994 whose prescription is extended on or after that date under section 108(2) above but only in so far as the prescription has been so extended].
(2)A person—
(a)who immediately before that date is entitled to reduced earnings allowance in consequence of the relevant accident; but
(b)who subsequently ceases to be entitled to that allowance for one or more days,
shall not again be entitled to reduced earnings allowance in consequence of that accident; but this sub-paragraph does not prevent the making at any time of a claim for, or an award of, reduced earnings allowance in consequence of that accident for a period which commences not later than the day after that on which the claimant was last entitled to that allowance in consequence of that accident.
(3)For the purposes of sub-paragraph (2) above—
(a)a person who, apart from section 103(6) above, would have been entitled to reduced earnings allowance immediately before 1st October 1990 shall be treated as entitled to that allowance on any day (including a Sunday) on which he would have been entitled to it apart from that provision;
(b)regulations may prescribe other circumstances in which a person is to be treated as entitled, or as having been entitled, to reduced earnings allowance on any prescribed day.
(4)The Secretary of State may by regulations provide that in prescribed circumstances employed earner’s employment in which a claimant was engaged when the relevant accident took place but which was not his regular occupation is to be treated as if it had been his regular occupation.
(5)In sub-paragraph (1) above—
(a)references to a person’s regular occupation are to be taken as not including any subsidiary occupation, except to the extent that they fall to be treated as including such an occupation by virtue of regulations under sub-paragraph (4) above; and
(b)employment of an equivalent standard is to be taken as not including employment other than employed earner’s employment;
and in assessing the standard of remuneration in any employment, including a person’s regular occupation, regard is to be had to his reasonable prospect of advancement.
(6)For the purposes of this Part of this Schedule a person’s regular occupation is to be treated as extending to and including employment in the capacities to which the persons in that occupation (or a class or description of them to which he belonged at the time of the relevant accident) are in the normal course advanced, and to which, if he had continued to follow that occupation without having suffered the relevant loss of faculty, he would have had at least the normal prospects of advancement; and so long as he is, as a result of the relevant loss of faculty, deprived in whole or in part of those prospects, he is to be treated as incapable of following that occupation.
(7)Regulations may for the purposes of this Part of this Schedule provide that a person is not to be treated as capable of following an occupation or employment merely because of his working thereat during a period of trial or for purposes of rehabilitation or training or in other prescribed circumstances.
(8)Reduced earnings allowance shall be awarded—
(a)for such period as may be determined at the time of the award; and
(b)if at the end of that period the beneficiary submits a fresh claim for the allowance, for such further period, commencing as mentioned in sub-paragraph (2) above, as may be determined.
(9)The award may not be for a period longer than the period to be taken into account under paragraph 4 or 6 of Schedule 6 to this Act.
(10)Reduced earnings allowance shall be payable at a rate determined by reference to the beneficiary’s probable standard of remuneration during the period for which it is granted in any employed earner’s employments which are suitable in his case and which he is likely to be capable of following as compared with that in the relevant occupation, but in no case at a rate higher than 40 per cent. of the maximum rate of a disablement pension or at a rate such that the aggregate of disablement pension (not including increases in disablement pension under any provision of this Act) and reduced earnings allowance awarded to the beneficiary exceeds 140 per cent. of the maximum rate of a disablement pension.
(11)Sub-paragraph (10) above shall have effect in the case of a person who retired from regular employment before 6th April 1987 with the substitution for “140 per cent." of “ 100 per cent. ”.
(12)In sub-paragraph (10) above “the relevant occupation” means—
(a)in relation to a person who is entitled to reduced earnings allowance by virtue of regulations under sub-paragraph (4) above, the occupation in which he was engaged when the relevant accident took place; and
(b)in relation to any other person who is entitled to reduced earnings allowance, his regular occupation within the meaning of sub-paragraph (1) above.
[F2(12A)The reference in sub-paragraph (11) above to a person who has retired from regular employment includes a reference—
(a)to a person who under subsection (3) of section 27 of the 1975 Act was treated for the purposes of that Act as having retired from regular employment; and
(b)to a person who under subsection (5) of that section was deemed for those purposes to have retired from it.]
(13)On any award except the first the probable standard of his remuneration shall be determined in such manner as may be prescribed; and, without prejudice to the generality of this sub-paragraph, regulations may provide in prescribed circumstances for the probable standard of remuneration to be determined by reference—
(a)to the standard determined at the time of the last previous award of reduced earnings allowance; and
(b)to scales or indices of earnings in a particular industry or description of industries or any other data relating to such earnings.
(14)In this paragraph “maximum rate of a disablement pension” means the rate specified in the first entry in column (2) of Schedule 4, Part V, paragraph 1 and does not include increases in disablement pension under any provision of this Act.
Textual Amendments
F1Words in Sch. 7 para. 11(1) added by SI 1985/967 reg. 14A (as inserted) (10.10.1994) by The Social Security (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 1994 (S.I. 1994/2343), regs. 1(1), 3
F2Sch. 7 para. 11(12A) inserted (temp.) (1.7.1992) by Social Security (Consequential Provisions) Act 1992 (c. 6), ss. 6, 7(2), Sch. 4 paras. 1, 10
Marginal Citations