The Employment and Support Allowance Regulations 2008

CHAPTER 3E+W+SReduction of employment and support allowance

Reduction of employment and support allowanceE+W+S

63.—[F1(1) Where the Secretary of State has determined—

(a)that a claimant who was required to take part in a work-focused interview has failed to do so and has failed to show good cause for that failure in accordance with regulation 61; or

(b)that a claimant who was required to undertake work-related activity has failed to do so and has failed to show good cause for that failure in accordance with regulation 8 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011,

(“a failure determination”) the amount of the employment and support allowance payable to the claimant is to be reduced in accordance with this regulation.]

[F2(2) Subject to paragraph (3), the amount of the reduction in relation to each failure determination is 100% of the prescribed amount for a single claimant as set out in paragraph (1)(a) of Part 1 of Schedule 4.]

(3) In any benefit week, the amount of an employment and support allowance payable to a claimant is not, by virtue of this regulation, to be reduced—

(a)below 10 pence;

(b)in relation to more than—

(i)one failure determination relating to [F3work-related activity]; and

(ii)one failure determination relating to a work-focused interview; and

(c)by more than 100% of the [F4prescribed amount for a single claimant as set out in paragraph 1(a) of Part 1] of Schedule 4 in any circumstances.

(4) Where a claimant is entitled to both a contributory allowance and an income-related allowance, any reduction in the claimant's allowance must first be applied to the part of that allowance treated as attributable to the claimant's contributory allowance and only if there is any amount outstanding is it to be applied to the part of that allowance treated as attributable to the claimant's income-related allowance.

(5) For the purposes of determining the amount of any income-related allowance payable, a claimant is to be treated as receiving the amount of any contributory allowance [F5including new style ESA] which would have been payable but for any reduction made in accordance with this regulation [F6or section 11J of the Act respectively].

[F7(6) Subject to paragraph (10), the reduction is to have effect for—

(a)one week for each 7 day period during which the claimant fails to meet a compliance condition; and

(b)a further fixed period determined in accordance with paragraph (7).

(7) The length of the fixed period is—

(a)1 week, where there has been no previous failure by the claimant which falls within paragraph (8);

(b)2 weeks, where there has been only one previous failure by the claimant which falls within paragraph (8); or

(c)4 weeks, where there have been two or more previous failures by the claimant and the most recent of those failures—

(i)falls within paragraph (8), and

(ii)resulted in a reduction that has effect for 2 weeks under sub-paragraph (b) or 4 weeks under this sub-paragraph, or would have done but for paragraph (3).

(8) A previous failure falls within this paragraph if—

(a)it relates to a failure for which a reduction was imposed under this regulation, or would have been but for paragraph (3);

(b)that failure occurred on or after 3rd December 2012; and

(c)the date of that failure is within 52 weeks but not within 2 weeks of the date of the current failure.

(9) This paragraph applies where the claimant meets a compliance condition before the end of the period of one week after the date of the failure to which the failure determination relates.

(10) Where paragraph (9) applies, the claimant’s employment and support allowance is reduced only for the fixed period set out in paragraph (7) applicable to the claimant.

(11) In this regulation—

“compliance condition” means—

(a)

where the failure by the claimant relates to a requirement to take part in a work-focused interview, either—

(i)

taking part in a work-focused interview, or

(ii)

making an agreement with the Secretary of State to take part in a work-focused interview at an agreed date;

(b)

where the failure by the claimant relates to a requirement to undertake work-related activity, either—

(i)

undertaking the activity specified in the action plan, or

(ii)

where so notified by the Secretary of State, undertaking an alternative activity, or

(iii)

making an agreement with the Secretary of State to undertake the activity referred to in sub-paragraph (i) or (ii) at an agreed date;

“current failure” means a failure which may lead to a reduction under this regulation in relation to which the Secretary of State has not yet determined whether the amount of the employment and support allowance payable to the claimant is to be reduced in accordance with this regulation.]

Textual Amendments

Cessation of reductionE+W+S

64.—[F8(1) Any reduction imposed as a result of a failure determination which resulted from a failure to undertake work-related activity in accordance with the Employment and Support Allowance (Work-Related Activity) Regulations 2011 ceases to have effect if—

F9(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the claimant subsequently ceases to be subject to a requirement to undertake work-related activity; or

(c)the Secretary of State decides it is no longer appropriate to require the person to undertake work-related activity at that time.]

[F10(1A) The Secretary of State must notify the person in writing—

F11(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)of any decision under paragraph (1)(c).]

(2) Any reduction imposed as a result of a failure determination which resulted from a failure to take part in a work-focused interview ceases to have effect if—

F12(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)the claimant subsequently ceases to meet the requirements set out in regulation 54(2).

Textual Amendments

[F13Hardship paymentsE+W+S

64A.  The Secretary of State must make a hardship payment to a claimant only where—

(a)the Secretary of State is satisfied that the claimant is or will be in hardship unless a hardship payment is made;

(b)the claimant’s employment and support allowance has been reduced in accordance with regulation 63;

(c)the claimant meets the conditions of entitlement to an income-related employment and support allowance;

(d)the claimant completes and submits an application —

(i)approved for the purpose by the Secretary of State, or in such other form as the Secretary of State accepts as sufficient, and

(ii)in such manner as the Secretary of State determines; and

(e)the claimant provides such information or evidence as the Secretary of State may require, in such manner as the Secretary of State determines.

Textual Amendments

Circumstances in which a claimant is to be treated as being in hardshipE+W+S

64B.  A claimant is to be treated as being in hardship if the claimant’s partner, or a child or qualifying young person for whom the claimant or the claimant’s partner is responsible, is or will be in hardship unless a hardship payment is made.

Textual Amendments

Matters to be taken into account in determining hardshipE+W+S

64C.—(1) The Secretary of State must take the following matters into account in determining hardship—

(a)whether the claimant’s partner or a person in the claimant’s family satisfies the requirements for a disability premium specified in paragraphs 6 and 7 of Schedule 4, or an element of child tax credit in respect of a child or young person who is disabled or severely disabled within the meaning of regulation 8 of the Child Tax Credit Regulations 2002;

(b)the resources which are likely to be available to the household without a hardship payment, including resources from persons who are not members of the household, but excluding any payment referred to in paragraph (2);

(c)the difference between the resources referred to in sub-paragraph (b) and the amount of the hardship payment that the claimant would receive;

(d)whether there is substantial risk that the household will not have access to essential items (including food, clothing, heating and accommodation), or will have access to such essential items at considerably reduced levels, without a hardship payment; and

(e)the length of time that the factors set out in sub-paragraphs (b) to (d) are likely to continue.

(2) The payments to be excluded from the resources referred to in paragraph (1)(b) are payments made under paragraph 7 (1) or (2) of Schedule 8 (sums to be disregarded in the calculation of income other than earnings: child tax credit and child benefit) to the claimant or the claimant’s partner in respect of a child or young person who is a member of the claimant’s household or family.

Textual Amendments

The amount of a hardship paymentE+W+S

64D.—(1) A hardship payment is 60 per cent of the prescribed amount for a single claimant as set out in paragraph (1)(a) of Part 1 of Schedule 4.

(2) A payment calculated in accordance with paragraph (1) shall, if it is not a multiple of 5p, be rounded to the nearest such multiple or, if it is a multiple of 2.5p but not of 5p, to the next lower multiple of 5p.]

Textual Amendments