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PART 11E+W+SSUPPLEMENTARY PROVISIONS

CHAPTER 1E+W+SMiscellaneous

Waiting daysE+W+S

144.—(1) A claimant is not entitled to an employment and support allowance in respect of [F17] days at the beginning of a period of limited capability for work.

(2) Paragraph (1) does not apply where—

(a)the claimant's entitlement to an employment and support allowance commences within 12 weeks of the claimant's entitlement to income support, [F2incapacity benefit, severe disablement allowance,] state pension credit, a jobseeker's allowance, a carer's allowance [F3, carer support payment] [F4, statutory sick pay or a maternity allowance] coming to an end;

(b)the claimant is terminally ill and has—

(i)made a claim expressly on the ground of being terminally ill; or

(ii)made an application for supersession or revision in accordance with the Social Security and Child Support (Decisions and Appeals) Regulations 1999 F5 which contains an express statement of being terminally ill; or

(c)the claimant has been discharged from being a member of Her Majesty's forces and 3 or more days immediately before that discharge were days of sickness absence from duty, which are recorded by the Secretary of State for Defence[F6, or

(d)the claimant is the other member of a couple to whom regulation 4I(2) of the Social Security (Claims and Payments) Regulations 1987 applies and the former claimant was not entitled to an employment and support allowance in respect of [F77] days at the beginning of the period of limited capability for work which relates to the former claimant’s entitlement][F8; or]

[F8(e)the claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).]

Textual Amendments

Linking rulesE+W+S

145.—(1) Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.

F9(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F9(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Modifications etc. (not altering text)

C1S. 145(1) applied by SSI 2012/303 Sch. 1 para. 27(1)(c) (as amended (S.) (18.3.2013) by The Council Tax Reduction (Scotland) Amendment Regulations2013 (S.S.I. 2013/48), regs. 1, 14(l)(ii))

C2Reg. 145(1) applied by SI 2006/215 Sch. 1 para. 29(1)(c) (as substituted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations 2012 (S.I. 2012/919), regs. 1(2), 4(d))

C3Reg. 145(1) applied by SI 2006/213 Sch. 3 para. 29(1)(c) (as substituted (1.5.2012) by The Employment and Support Allowance (Amendment of Linking Rules) Regulations 2012 (S.I. 2012/919), regs. 1(2), 3(d))

Advance awardsE+W+S

146.—(1) Where section 5 of the Act (advance award of income-related allowance) applies to a claim and the claimant satisfies the conditions in paragraph (3)—

(a)the claim is to be treated as if made for a period from the relevant day; and

(b)the Secretary of State may award an employment and support allowance from the relevant day.

(2) In this regulation the “relevant day” is the day after the end of a period of 13 weeks beginning on the first day on which the claimant would be entitled to an income-related allowance if the claimant satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act.

(3) The conditions are that—

(a)the Secretary of State is of the opinion that unless there is a change of circumstances the claimant will satisfy the conditions set out in section 1(3)(b) to (f) of, and Part 2 of Schedule 1 to, the Act when an income-related allowance becomes payable under the award; and

(b)the claimant is treated as having limited capability for work under regulation 20, 25, 26, [F1030] or 33(2) (conditions for treating a person as having limited capability for work) for the period before an income-related allowance becomes payable under the award.

(4) Where an award is made under paragraph (1)—

(a)the award for an employment and support allowance will become payable on the date on which the claimant would have been entitled to a main phase employment and support allowance if the claimant had satisfied the condition in paragraph 6(1)(a) of Schedule 1 to the Act before the relevant day;

(b)sections 4(4)(a) and 4(5)(a) of the Act do not apply to that award.

Textual Amendments

Recovery ordersE+W+S

147.—(1) Where an award of income-related allowance has been made to a claimant, the Secretary of State may apply to the court for a recovery order against the claimant's partner.

(2) On making a recovery order the court may order the partner to pay such amount at such intervals as it considers appropriate, having regard to all the circumstances of the partner and, in particular, the partner's income.

(3) Except in Scotland, a recovery order is to be treated for all purposes as if it were a maintenance order within the meaning of section 150(1) of the Magistrates Courts Act 1980 F11.

(4) Where a recovery order requires the partner to make payments to the Secretary of State, the Secretary of State may, by giving notice in writing to the court which made the order, the liable person and the claimant, transfer to the claimant the right to receive payments under the order and to exercise the relevant rights in relation to the order.

(5) In paragraph 4, “the relevant rights” means, in relation to a recovery order, the right to bring any proceedings, take any steps or do any other thing under or in relation to the order.

Textual Amendments

F111980 c. 43. The definition in section 150(1) was inserted by the Family Law Reform Act 1987 (c. 42), section 33(1) and Schedule 2, paragraph 88.

[F12Claimants appealing a decisionE+W+S

147A.—[F13(1) This regulation applies where a claimant has made and is pursuing an appeal against a relevant decision of the Secretary of State as defined in regulation 30.]

[F14(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 Secretary of State under regulation 19 shall not be made until the appeal is determined by the First-tier 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 Secretary of State 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[F15, struck out or has been discontinued in accordance with the provisions of regulation 33(10) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (notice of appeal)]

the claimant is to be treated as not having limited capability for work [F16with effect from the day specified in paragraph (5A).]

[F17(5A) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Secretary of State F18...—

(a)receives the First-tier Tribunal’s notification that the appeal is dismissed, withdrawn or struck out, F19...

F19(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .]

(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 First-tier Tribunal or on which the First-tier Tribunal’s decision is based shall be conclusive for the purposes of the decision of the Secretary of State, 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 Secretary of State is satisfied that it is no longer appropriate to rely on such finding or determination.]

Textual Amendments

F13Reg. 147A(1) substituted (with application in accordance with reg. 2 of the amending S.I.) by The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015 (S.I. 2015/437), regs. 1, 3(3)

CHAPTER 2E+W+SWork or training beneficiaries

Work or training beneficiariesE+W+S

F20148.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Linking rules – limited capability for workE+W+S

F21149.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Linking rules – limited capability for work-related activityE+W+S

F22150.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

CHAPTER 3E+W+STemporary absence from Great Britain

Absence from Great BritainE+W+S

151.—(1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary absence from Great Britain only in accordance with this Chapter.

(2) A claimant who continues to be entitled to a contributory allowance during a period of temporary absence will not be disqualified for receiving that allowance during that period under section 18(4) of the Act.

Short absenceE+W+S

152.  A claimant is to continue to be entitled to an employment and support allowance during the first 4 weeks of a temporary absence from Great Britain if—

(a)the period of absence is unlikely to exceed 52 weeks; and

(b)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance.

Absence to receive medical treatmentE+W+S

153.—(1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence from Great Britain if—

(a)the period of absence is unlikely to exceed 52 weeks;

(b)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(c)the claimant is absent from Great Britain solely—

(i)in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant's limited capability for work which commenced before leaving Great Britain; or

(ii)because the claimant is accompanying a dependent child in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement;

(d)those arrangements relate to treatment—

(i)outside Great Britain;

(ii)during the period whilst the claimant is temporarily absent from Great Britain; and

(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment; and

F23(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In paragraph (1)(d)(iii), “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.

Textual Amendments

Absence in order to receive NHS treatmentE+W+S

154.  A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Great Britain if—

(a)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(b)that period of temporary absence is for the purpose of the claimant receiving treatment at a hospital or other institution outside Great Britain where the treatment is being provided—

(i)under section 6(2) of the Health Service Act (Performance of functions outside England) or section 6(2) of the Health Service (Wales) Act (Performance of functions outside Wales);

(ii)pursuant to arrangements made under section 12(1) of the Health Service Act (Secretary of State's arrangements with other bodies), section 10(1) of the Health Service (Wales) Act (Welsh Ministers' arrangements with other bodies), paragraph 18 of Schedule 4 to the Health Service Act (Joint exercise of functions) or paragraph 18 of Schedule 3 to the Health Service (Wales) Act (Joint exercise of functions); or

(iii)under any equivalent provision in Scotland or pursuant to arrangements made under such provision; F24...

F24(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Absence of member of family of member of Her Majesty's forcesE+W+S

155.—(1) A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Great Britain if—

(a)the claimant is a member of the family of a member of Her Majesty's forces and temporarily absent from Great Britain by reason only of the fact that the claimant is living with that member; F25...

F25(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) In this regulation “member of the family of a member of Her Majesty's forces” means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law or step-mother of such a member.

Textual Amendments

CHAPTER 4E+W+SMembership of household

Circumstances in which a person is to be treated as being or not being a member of the householdE+W+S

156.—(1) Subject to the following provisions of this regulation—

(a)the claimant and the claimant's partner; and

(b)where the claimant or the claimant's partner is responsible for a child or young person, that child or young person and any child of that child or young person,

are to be treated as being members of the same household.

(2) Paragraph (1) applies even where any of them is temporarily living away from the other members of the family.

(3) Paragraph (1) does not apply to a person who is living away from the other members of the family where—

(a)that person does not intend to resume living with the other members of the family; or

(b)that person's absence from the other members of the family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of absence), and the absence is unlikely to be substantially more than 52 weeks.

(4) Paragraph (1) does not apply in respect of any member of a couple or of a polygamous marriage where—

(a)one, both or all of them are patients detained in a hospital provided under section 4 of the Health Service Act (high security psychiatric services), section 4 of the Health Service (Wales) Act (high security psychiatric services) or section 102 of the National Health Service (Scotland) Act 1978 F26 (state hospitals);

(b)one, both or all of them are—

(i)detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(ii)on temporary release in accordance with the provisions of [F27the Prison Act 1952 F28 or] the Prisons (Scotland) Act 1989 F29;

(c)the claimant is abroad and does not satisfy the conditions of Chapter 4 of this Part (temporary absence from Great Britain); or

(d)any one of them is permanently residing in a care home, an Abbeyfield Home or an independent hospital.

(5) A child or young person is not to be treated as a member of the claimant's household where that child or young person is—

(a)placed with the claimant or the claimant's partner by a local authority under [F30section 22C(2)] of the Children Act 1989 F31 or by a voluntary organisation under section 59(1)(a) of that Act F32;

[F33(aa)placed with the claimant or the claimant’s partner by a local authority under section 81(2) of the Social Services and Well-being (Wales) Act 2014;]

(b)placed with the claimant or the claimant's partner prior to adoption;

(c)in accordance with a relevant enactment, boarded out with the claimant or the claimant's partner, whether or not with a view to adoption; or

(d)placed for adoption with the claimant or the claimant's partner pursuant to a decision under the [F34Adoption and Children Act 2002] or [F35the Adoption Agencies (Scotland) Regulations 2009].

(6) Subject to paragraphs (7) and (8), paragraph (1) does not apply to a child or young person who is not living with the claimant and who—

(a)in a case which does not fall within sub-paragraph (b), has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i)where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim;

(ii)in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(b)where regulation 153 (absence to receive medical treatment) applies, has been continuously absent from Great Britain for a period of more than 26 weeks, that period commencing––

(i)where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim;

(ii)in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(c)has been an in-patient or in accommodation for a continuous period of more than 12 weeks commencing—

(i)where that child or young person became an in-patient or, as the case may be, entered that accommodation, before the date of the claim for an employment and support allowance, with that date; or

(ii)in any other case, with the date on which that child or young person became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant's household;

(d)is being looked after by, or in the care of, a local authority under a relevant enactment;

(e)has been placed with a person other than the claimant prior to adoption;

(f)has been boarded out under a relevant enactment with a person other than the claimant prior to adoption;

(g)has been placed for adoption pursuant to a decision under the [F36Adoption and Children Act 2002] or [F37the Adoption Agencies (Scotland) Regulations 2009]; or

(h)is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

(7) Sub-paragraphs (a)(i), (b)(i) and (c)(i) of paragraph (6) do not apply in a case where immediately before the date of claim for an employment and support allowance the claimant was entitled to an income-based jobseeker's allowance or income support.

(8) A child or young person to whom any of the circumstances mentioned in sub-paragraphs (d) or (h) of paragraph (6) applies is to be treated as being a member of the claimant's household only for that part of any benefit week where that child or young person lives with the claimant.

(9) In this regulation—

“accommodation” means accommodation provided by a local authority in a home owned or managed by that local authority—

(a)

under sections 21 to 24 of the National Assistance Act 1948 F38 (provision of accommodation);

(aa)

[F39under Part 1 of the Care Act 2014 (care and support);]

(b)

in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968 F40 (provision of residential or other establishment); F41...

(ba)

[F42in Wales, under section 35 or 36 of the Social Services and Well-being (Wales) Act 2014; or]

(c)

under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003 F43 (care and support services etc.),

where the accommodation is provided for a person whose stay in that accommodation has become other than temporary; and

“voluntary organisation” has the meaning assigned to it in the Children Act 1989, or in Scotland, by section 94 of the Social Work (Scotland) Act 1968.

(10) For the purposes of these Regulations a person is responsible for a child or young person if that child or young person usually lives with that person.

Textual Amendments

F27Words in reg. 156(4)(b)(ii) omitted (temp.) (8.4.2020) by virtue of The Social Security (Coronavirus) (Prisoners) Regulations 2020 (S.I. 2020/409), regs. 1, 3(1)(c) (with reg. 6(2))

F311989 c. 41. Section 23(2)(a) was amended by section 49(3) of the Children Act 2004 (c. 31).

F32Section 59(1)(a) was amended by section 49(4) of the Children Act 2004 (c. 31).