The Employment and Support Allowance Regulations 2008

Reduction of employment and support allowance E+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 [F3 work-related activity]; and

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

(c) by more than 100% of the [F4 prescribed 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 [F5 including new style ESA] which would have been payable but for any reduction made in accordance with this regulation [F6 or 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 3^rd 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

F1 Reg. 63(1) substituted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 17(2)

F2 Reg. 63(2) substituted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(2) (with reg. 1(2))

F3 Words in reg. 63(3)(b)(i) substituted (1.6.2011) by The Employment and Support Allowance (Work-Related Activity) Regulations 2011 (S.I. 2011/1349), regs. 1, 17(3)

F4 Words in reg. 63(3)(c) substituted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(3) (with reg. 1(2))

F5 Words in reg. 63(5) inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(4)(a)

F6 Words in reg. 63(5) inserted (29.4.2013) by The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 (S.I. 2013/630), regs. 1(2), 37(4)(b)

F7 Reg. 63(6)-(11) inserted (3.12.2012) by The Employment and Support Allowance (Sanctions) (Amendment) Regulations 2012 (S.I. 2012/2756), regs. 1(1), 4(4) (with reg. 1(2))