The Employment and Support Allowance Regulations 2008

PART 2 E+W+S THE ASSESSMENT PHASE

The end of the assessment phase E+W+S

4.—(1) Subject to paragraph (2) and [F1 regulation 5], the assessment phase in relation to a claimant ends on the last day of a period of 13 weeks beginning on the first day of the assessment phase as determined under section 24(2)(a) of the Act.

(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet been determined whether the claimant has limited capability for work—

(a) the claimant having been assessed in accordance with a limited capability for work assessment; or

(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),

the assessment phase will end when the limited capability for work determination is made.

Textual Amendments

F1 Words in reg. 4(1) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(3)

The assessment phase – previous claimants E+W+S

5.—(1) Where the circumstances in paragraph (2) apply in relation to a claimant the assessment phase —

(a) begins on the first day of the period for which the claimant was previously entitled to an employment and support allowance; and

(b) subject to paragraph (3) and [F2 (4)], ends on the day when the sum of the period for which the claimant was previously entitled to an employment and support allowance and the period for which the claimant is currently entitled to such an allowance is 13 weeks.

(2) The circumstances are that—

(a) (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; F3 ...

(iii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; [F4 and]

[F5 (iv) the period for which the claimant was previously entitled was no more than 13 weeks; or]

(b) (i) paragraph (3) or (5) of regulation 145 applies to the claimant; F6 ...

(ii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; [F7 and]

[F8 (iii) the period for which the claimant was previously entitled was no more than 13 weeks;]

(3) If, on the day referred to in paragraph (1)(b), it has not yet been determined whether the claimant has limited capability for work—

(a) the claimant having been assessed in accordance with a limited capability for work assessment; or

(b) as a result of the claimant being treated as having limited capability for work in accordance with regulation 20, 25, 26, 29 or regulation 33(2) (persons to be treated as having limited capability for work),

the assessment phase will end when the limited capability for work determination is made.

[F9 (4) Where a person has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work—

(a) paragraph (3) does not apply; and

(b) paragraph (1) does not apply to any period of limited capability for work to which regulation 147A(2) applies until a determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal.]

Textual Amendments

F2 Words in reg. 5(1)(b) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(a)

F3 Word in reg. 5(2)(a)(ii) omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(b)

F4 Word in reg. 5(2)(a)(iii) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(c)

F5 Reg. 5(2)(a)(iv) inserted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(d)

F6 Word in reg. 5(2)(b)(i) omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(e)

F7 Word in reg. 5(2)(b)(ii) added (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(f)

F8 Reg. 5(2)(b)(iii) inserted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(g)

F9 Reg. 5(4) added (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(4)(h)

The assessment phase – claimants appealing against a decision E+W+S

F10 6.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F10 Reg. 6 omitted (28.6.2010) by virtue of The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(5)

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 E+W+S

7.—(1) Subject to paragraph (2), sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a) of the Act do not apply where—

(a) a claimant is terminally ill and has either—

(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 F11 which contains an express statement that the claimant is terminally ill; F12 ...

(b) (i) 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);

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work; and

(iii) the assessment phase had ended in the previous period for which the claimant was entitled to an employment and support allowance [F13 or that period was more than 13 weeks;] [F14 or

(c) (i) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support coming to an end;

(ii) in relation to that entitlement to income support, immediately before it ended the claimant’s applicable amount included the disability premium by virtue of satisfying the conditions in paragraphs 11 and 12 of Schedule 2 to the Income Support Regulations; and

(iii) that entitlement to income support ended solely by virtue of the coming into force, in relation to the claimant, of the Social Security (Lone Parents and Miscellaneous Amendments) Regulations 2008.]

(2) Paragraph (1)(b) does not apply [F15 to any period of limited capability for work to which regulation 147A(2) applies until the determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal].

Textual Amendments

F11 S.I. 1999/991.

F12 Word in reg. 7(1)(a) omitted (24.11.2008) by virtue of The Social Security (Lone Parents and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/3051), regs. 1(2), 12(2)(a) (with reg. 13)

F13 Words in reg. 7(1)(b)(iii) inserted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(6)(a)

F14 Reg. 7(1)(c) and word inserted (24.11.2008) by The Social Security (Lone Parents and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/3051), regs. 1(2), 12(2)(b) (with reg. 13)

F15 Words in reg. 7(2) substituted (28.6.2010) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2010 (S.I. 2010/840), regs. 1, 9(6)(b)