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The Social Security (Miscellaneous Amendments) (No. 5) Regulations 2010

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Statutory Instruments

2010 No. 2429

Social Security

The Social Security (Miscellaneous Amendments) (No. 5) Regulations 2010

Made

4th October 2010

Laid before Parliament

11th October 2010

Coming into force

1st November 2010

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by—

  • sections 123(1)(a), (d) and (e), 124(1)(e), 136(3) and (5)(b), 136A(3), 137(1) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 1992(1),

  • sections 2A(1), (3)(e), (4)(b) and (5), 15A(2)(a) and (4), 189(1), (4) and (5) and 191 of the Social Security Administration Act 1992(2),

  • sections 12(1) and (4)(b), 35(1) and 36(2) and (4)(a) of, and paragraph 8A(1) of Schedule 1 to, the Jobseekers Act 1995(3),

  • section 16 of the Employment Tribunals Act 1996(4),

  • sections 15(3) and (6)(b) and 17(1) of the State Pension Credit Act 2002(5), and

  • sections 17(1) and (3)(a) and (b), 24(1) and 25(3), (4) and (5)(a) of the Welfare Reform Act 2007(6).

The Social Security Advisory Committee have agreed that the proposals in respect of these Regulations should not be referred to it(7).

In respect of the provisions in these Regulations relating to housing benefit and council tax benefit, the Secretary of State has consulted the organisations appearing to him to be representative of the authorities concerned(8).

Citation and commencement

1.—(1) These Regulations may be cited as the Social Security (Miscellaneous Amendments) (No. 5) Regulations 2010.

(2) Subject to paragraph (3), these Regulations come into force on 1st November 2010.

(3) Regulations 2(3)(a), 3 and 4(5)(a), so far as they relate to a particular beneficiary, come into force on the first day of the first benefit week to commence for that beneficiary on or after 1st November 2010.

(4) In this regulation “benefit week” has the same meaning—

(a)for income support, as in regulation 2(1) (interpretation) of the Income Support (General) Regulations 1987(9);

(b)for jobseeker’s allowance, as in regulation 1(3) (citation, commencement and interpretation) of the Jobseeker’s Allowance Regulations 1996(10); and

(c)for employment and support allowance, as in regulation 2(1) (interpretation) of the Employment and Support Allowance Regulations 2008(11).

Amendments to the Income Support (General) Regulations 1987

2.—(1) The Income Support (General) Regulations 1987 are amended as follows.

(2) In Schedule 1B(12) (prescribed categories of person)—

(a)in paragraph 7(c)(13), for “that Act” substitute “the Contributions and Benefits Act”;

(b)in paragraph 14(b)(14), omit “seven weeks after the date on which her pregnancy ends where the expected week of confinement begins prior to 6th April 2003 or” and “where the expected week of confinement begins on or after 6th April 2003”.

(3) In Schedule 9 (sums to be disregarded in the calculation of income other than earnings)—

(a)in paragraph 5B(15), after sub-paragraph (2) add—

(3) Any increase in respect of a dependent child or dependent young person under section 80 or 90(16) of the Contributions and Benefits Act where—

(a)the claimant has a child or young person who is a member of the claimant’s family for the purposes of the claimant’s claim for income support, and

(b)the claimant, or that claimant’s partner, has been awarded a child tax credit.;

(b)for paragraph 26(17), substitute—

26.  Any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(a)by a local authority under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after),

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009(18) (fostering and kinship care allowances and fostering allowances); or

(b)by a voluntary organisation under section 59(1)(a) of the Children Act 1989 (provision of accommodation by voluntary organisations).;

(c)in paragraph 28(19)—

(i)in sub-paragraph (1)(c), after “section” insert “22, ”;

(ii)in sub-paragraph (2), before “29” insert “22 or”.

Amendment to the Social Security (Claims and Payments) Regulations 1987

3.  In paragraph 1 of Schedule 9A (deductions of mortgage interest from benefit and payment to qualifying lenders) to the Social Security (Claims and Payments) Regulations 1987(20), in the definition of “relevant benefits”(21)—

(a)after paragraph (c), insert—

(ca)contribution-based jobseeker’s allowance where—

(i)both income-based jobseeker’s allowance and contribution-based jobseeker’s allowance are in payment, and

(ii)the income-based jobseeker’s allowance alone is insufficient for the purposes of this Schedule;;

(b)after paragraph (e), insert—

(f)contributory employment and support allowance where—

(i)both income-related employment and support allowance and contributory employment and support allowance are in payment, and

(ii)the income-related employment and support allowance alone is insufficient for the purposes of this Schedule;.

Amendments to the Jobseeker’s Allowance Regulations 1996

4.—(1) The Jobseeker’s Allowance Regulations 1996 are amended as follows.

(2) In Schedule A1(22) (categories of members of a joint-claim couple who are not required to satisfy the conditions in section 1(2B)(b)), subject to paragraph (3) below—

(a)the following provisions are revoked—

(i)paragraph 6(a) and (b) (member incapable of work),

(ii)paragraph 9 (disabled students),

(iii)paragraph 10 (deaf students), and

(iv)paragraph 11 (blind members);

(b)for the heading preceding paragraph 6 substitute “Member treated as capable of work, or member entitled to statutory sick pay”;

(c)in paragraph 6(c), for “that Act”, substitute “the Benefits Act”.

(3) A provision revoked or amended by paragraph (2) continues to have effect in relation to a joint-claim couple as if that revocation or amendment had not been made where, immediately before 1st November 2010—

(a)the couple were entitled to a jobseeker’s allowance, and

(b)that provision applied to a member of that couple.

(4) Paragraph (3) ceases to apply to a joint-claim couple upon termination of the jobseeker’s allowance award that they were entitled to immediately before 1st November 2010.

(5) In Schedule 7 (sums to be disregarded in the calculation of income other than earnings)—

(a)in paragraph 6B(23), after sub-paragraph (2) add—

(3) Any increase in respect of a dependent child or dependent young person under section 80 or 90(24) of the Benefits Act where—

(a)the claimant has a child or young person who is a member of the claimant’s family for the purposes of the claimant’s claim for income-based jobseeker’s allowance, and

(b)the claimant, or that claimant’s partner, has been awarded a child tax credit.;

(b)for paragraph 27(25), substitute—

27.  Any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(a)by a local authority under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after),

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances); or

(b)by a voluntary organisation under section 59(1)(a) of the Children Act 1989 (provision of accommodation by voluntary organisations).;

(c)in paragraph 29(26)—

(i)in sub-paragraph (1)(c), after “section” insert “22, ”;

(ii)in sub-paragraph (2), before “29” insert “22 or”.

Amendments to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996

5.  In the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996(27) in—

(a)regulation 2(1) (interpretation) in the definition of “recoupable benefit”;

(b)regulation 4(1) and (8) (duties of the employment tribunals and of the secretary of the tribunals in respect of monetary awards)(28);

(c)regulation 8(1), (2)(b) and (3)(b) (recoupment of benefit); and

(d)regulation 10(1) and (2)(29) (provisions relating to determination of amount paid by way of or paid as on account of benefit),

after “allowance” insert “, income-related employment and support allowance”.

Amendment to the State Pension Credit Regulations 2002

6.  In regulation 17B(4)(b)(30) (earnings of self-employed earners) of the State Pension Credit Regulations 2002(31)—

(a)for “for paragraph (2), the following provision shall have effect” substitute “the following paragraph shall be added after paragraph (1)”.

(b)for sub-paragraph (b) of the new paragraph (2) to be added to regulation 12 (earnings of self-employed earners) of the Social Security Benefits (Computation of Earnings) Regulations 1996(32), substitute—

(b)any payment made by a local authority to a claimant with whom a person is accommodated by virtue of arrangements made under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after),

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances);.

Amendments to the Housing Benefit Regulations 2006

7.—(1) The Housing Benefit Regulations 2006(33) are amended as follows.

(2) In regulation 28(8)(k)(34) (treatment of child care charges)—

(a)after “by a foster parent” insert “or kinship carer”;

(b)for “Fostering of Children (Scotland) Regulations 1996” substitute “Looked After Children (Scotland) Regulations 2009”;

(c)after “is fostering” insert “or kinship carer is looking after”.

(3) In Schedule 5 (sums to be disregarded in the calculation of income other than earnings) for paragraph 26(35) substitute—

26.  Any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(a)by a local authority under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after),

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances); or

(b)by a voluntary organisation under section 59(1)(a) of the Children Act 1989 (provision of accommodation by voluntary organisations)..

(4) In Schedule 5, paragraph 28(36) and Schedule 6 (capital to be disregarded), paragraph 19(37) before “29” insert “22,”.

Amendments to the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006

8.—(1) The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006(38) are amended as follows.

(2) In regulation 31(8)(k)(39) (treatment of child care charges)—

(a)after “by a foster parent” insert “or kinship carer”;

(b)for “Fostering of Children (Scotland) Regulations 1996” substitute “Looked After Children (Scotland) Regulations 2009”;

(c)after “is fostering” insert “or kinship carer is looking after”.

(3) For regulation 38(2)(b)(ii) (earnings of self-employed earners), substitute—

(ii)with whom a local authority foster a child under the Looked After Children (Scotland) Regulations 2009 or who is a kinship carer under those Regulations; .

Amendments to the Council Tax Benefit Regulations 2006

9.—(1) The Council Tax Benefit Regulations 2006(40) are amended as follows.

(2) In regulation 18(8)(k)(41) (treatment of child care charges)—

(a)after “by a foster parent” insert “or kinship carer”;

(b)for “Fostering of Children (Scotland) Regulations 1996” substitute “Looked After Children (Scotland) Regulations 2009”;

(c)after “is fostering” insert “or kinship carer is looking after”.

(3) In Schedule 4 (sums to be disregarded in the calculation of income other than earnings) for paragraph 27(42) substitute—

27.  Any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(a)by a local authority under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after),

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances); or

(b)by a voluntary organisation under section 59(1)(a) of the Children Act 1989 (provision of accommodation by voluntary organisations)..

(4) In Schedule 4, paragraph 29(43) and Schedule 5 (capital to be disregarded), paragraph 19(44) before “29” insert “22,”.

Amendments to the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006

10.—(1) The Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006(45) are amended as follows.

(2) In regulation 21(8)(k)(46) (treatment of child care charges)—

(a)after “by a foster parent” insert “or kinship carer”;

(b)for “Fostering of Children (Scotland) Regulations 1996” substitute “Looked After Children (Scotland) Regulations 2009”;

(c)after “is fostering” insert “or kinship carer is looking after”.

(3) For regulation 28(2)(b)(ii) (earnings of self-employed earners), substitute—

(ii)with whom a local authority foster a child under the Looked After Children (Scotland) Regulations 2009 or who is a kinship carer under those Regulations;.

Amendments to the Employment and Support Allowance Regulations 2008

11.—(1) The Employment and Support Allowance Regulations 2008(47) are amended as follows.

(2) In regulation 106 (notional income – deprivation and income on application), after paragraph (2)(ga)(48) insert—

(gb)any sum to which regulation 137(4A) (treatment of student loans) applies;.

(3) In regulation 137 (treatment of student loans)—

(a)in paragraph (4)(b), before “the student” insert “subject to paragraph (4A)”;

(b)after paragraph (4) insert—

(4A) A student is not to be treated as possessing any part of a student loan which has not been paid to that student in respect of an academic year where the educational institution at which the student was attending a course has confirmed in writing that the student has suspended attendance at the course due to a health condition or disability that renders the student incapable of continuing that course..

(4) In Schedule 8 (sums to be disregarded in the calculation of income other than earnings)—

(a)for paragraph 28 substitute—

28.  Any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—

(a)by a local authority under—

(i)section 23(2)(a) of the Children Act 1989 (provision of accommodation and maintenance for a child whom they are looking after), or

(ii)section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked after by local authority), or

(iii)regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship care allowances and fostering allowances); or

(b)by a voluntary organisation under section 59(1)(a) of the 1989 Act (provision of accommodation by voluntary organisations).;

(b)in paragraph 30(1)(c) before “29” insert “22,”;

(c)in paragraph 30(2) before “29” insert “22 or”.

Amendment to the Social Security (Incapacity Benefit Work-focused Interviews) Regulations 2008

12.  In regulation 9 (consequences of failure to take part in a work-focused interview) of the Social Security (Incapacity Benefit Work-focused Interviews) Regulations 2008(49)—

(a)in paragraph (1)(a), before “50%”; and

(b)in paragraph (1)(b) and (12)(c), after “by”,

insert “an amount equivalent to”.

Signed by authority of the Secretary of State for Work and Pensions.

Chris Grayling

Minister of State

Department for Work and Pensions

4th October 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations amend a number of different regulations relating to social security.

Regulation 2 amends the Income Support (General) Regulations 1987 (“the Income Support Regulations”) to make it clear that a particular reference to an Act is a reference to the Social Security Contributions and Benefits Act 1992.

Regulations 2 and 4 amend the Income Support Regulations and the Jobseeker’s Allowance Regulations 1996 (“the Jobseeker’s Allowance Regulations”) to provide that Child Dependency Increases paid to income support and jobseeker’s allowance claimants are disregarded for the purposes of income support or jobseeker’s allowance.

Regulations 2, 4, 6 to 11 amend income and capital disregard provisions in the Income Support Regulations, the Jobseeker’s Allowance Regulations, the State Pension Credit Regulations 2002, the Housing Benefit Regulations 2006 (“the Housing Benefit Regulations”), the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (“the Housing Benefit (SPC) Regulations”), the Council Tax Benefit Regulations 2006 (“the Council Tax Benefit Regulations”), the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 (“the Council Tax Benefit (SPC) Regulations”) and the Employment and Support Allowance Regulations 2008 (“the Employment and Support Allowance Regulations”) to replace references to the Fostering of Children (Scotland) Regulations 1996 with references to the Looked After Children (Scotland) Regulations 2009.

Regulations 2, 4, 7, 9 and 11 amend income disregard provisions in the Income Support Regulations, the Jobseeker’s Allowance Regulations, the Housing Benefit Regulations, the Council Tax Benefit Regulations and the Employment and Support Allowance Regulations to include payments made under section 22 (promotion of welfare of children in need) of the Children (Scotland) Act 1995 .

Regulation 3 amends the Social Security (Claims and Payments) Regulations 1987 to provide that contributory jobseeker’s allowance and contributory employment and support allowance, where both income-based and contributory elements of those allowances are in payment at the same time, are relevant benefits for the purpose of making mortgage interest payments direct to lenders where the income-based elements of those benefits alone is insufficient for this purpose.

Regulation 4 amends the Jobseeker’s Allowance Regulations to revoke, subject to savings, provisions specifying that members of a joint-claim couple who are incapable of work due to health issues, being blind, or because they are disabled or deaf students do not have to satisfy the conditions of section 1(2B)(b) (joint-claim couples qualifying conditions for Jobseeker’s Allowance) of the Jobseekers Act 1995.

Regulation 5 amends the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 to provide for the recoupment of income-related employment and support allowance payments where an employment tribunal makes an award in favour of a claimant.

Regulations 7 to 10 amend the Housing Benefit Regulations, the Housing Benefit (SPC) Regulations, the Council Tax Benefit Regulations and the Council Tax Benefit (SPC) Regulations to insert references to kinship carers.

Regulation 11 amends the Employment and Support Allowance Regulations to provide that any part of a student loan which has not be taken up will not be treated as deemed income for benefit calculation purposes where a student has suspended his or her studies due to incapacitating illness.

Regulation 12 amends the Social Security (Incapacity Benefit Work-focused Interviews) Regulations 2008 to clarify that the amount of benefit by which claimants may have their benefit reduced is an amount equivalent to the work-related activity component provided for in the Employment and Support Allowance Regulations.

A full impact assessment has not been published for this instrument as it has no impact on the private and voluntary sectors.

(1)

1992 c. 4. Section 123(1)(e) was substituted by paragraph 1(1) of Schedule 9 to the Local Government Finance Act 1992 (c. 14). Section 124(1)(e) was inserted by paragraph 30 of Schedule 2 to the Jobseekers Act 1995 (c. 18) and was amended by Schedule 3 to the State Pension Credit Act 2002 (c. 16). Section 136A was inserted by paragraphs 1 and 3 of Schedule 2 to the State Pension Credit Act 2002. Section 137(1) is an interpretation provision and is cited because of the meaning given to the word “prescribed”. Section 175(1) and (4) was amended by paragraph 29 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999 (c. 2).

(2)

1992 c. 5. Section 2A was inserted by section 57 of the Welfare Reform and Pensions Act 1999 (c. 30). Section 15A was inserted by paragraph 1 of the Schedule to the Social Security (Mortgage Interest Payments) Act 1992 (c. 33). Section 15A(4) is an interpretation provision and is cited because of the meaning given to the phrase “relevant benefits” and this definition was amended by paragraph 40 of Schedule 2 to the Jobseekers Act 1995, paragraphs 8 and 9 of Schedule 2 to the State Pension Credit Act 2002 and paragraph 10 of Schedule 2 to the Welfare Reform Act 2007 (c. 5). Section 189(1), (4) and (5) was amended by paragraph 109 of Schedule 7 and by Schedule 8 to the Social Security Act 1998 (c. 14). Section 189(1) was also amended by paragraph 57(1) and (2) of Schedule 3 to the Social Security (Transfer of Functions, etc.) Act 1999 and Schedule 6 to the Tax Credits Act 2002 (c. 21). Section 191 is an interpretation provision and is cited because of the meaning given to the word “prescribe”.

(3)

1995 c. 18. Section 35(1) is an interpretation provision and is cited because of the meaning given to the words “prescribed” and “regulations”. Section 36(4) was amended by paragraph 63 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) Act 1999. Paragraph 8A of Schedule 1 was inserted by paragraph 16 of Schedule 7 to the Welfare Reform and Pensions Act 1999.

(4)

1996 c. 17. The title of this Act was amended by the Employment Rights (Dispute Resolution) Act 1998 (c. 8). Section 16 was amended by section 1(2) of the Employment Rights (Dispute Resolution) Act 1998, paragraph 147 of Schedule 7 and Schedule 8 to the Social Security Act 1998, paragraph 15 of Schedule 3 to the Welfare Reform Act 2007, paragraph 137 of Schedule 3 to S.I. 2008/2833 and regulation 17 of S.I. 2010/493.

(5)

2002 c. 16. Section 17(1) is an interpretation provision and is cited because of the meaning given to the words “prescribed” and “regulations”.

(6)

2007 c. 5. Section 24(1) is an interpretation provision and is cited because of the meaning given to the words “prescribed” and “regulations”.

(7)

See sections 172(1) and 173(1)(b) of the Social Security Administration Act 1992 (c. 5).

(8)

See section 176(1) of the Social Security Administration Act 1992.

(12)

Inserted by S.I. 1996/206.

(13)

Paragraph 7 was amended by S.I. 2009/3152.

(14)

Relevant amending instrument is S.I. 2002/2689.

(15)

Inserted by S.I. 2003/455.

(16)

Section 80 was repealed by Schedule 6 to the Tax Credits Act 2002, with savings under article 3 of S.I. 2003/938 and section 90 was repealed by Part 2 of Schedule 7 to the Welfare Reform Act 2009 (c. 24), with transitional provisions under section 15(2) and (3) of that Act.

(17)

Relevant amending instruments are S.I. 1992/468, 2004/1141 and 2006/2378. The new paragraph 26 also substitutes the paragraph saved under S.I. 1992/468 in relation to Scotland.

(19)

Substituted by S.I. 2008/698.

(20)

S.I. 1987/1968. Schedule 9A was inserted by S.I. 1992/1026.

(21)

Definition substituted by S.I. 1996/672. Relevant amending instruments are S.I. 1996/1460 and 3195, 1997/454, 2002/2441, 2005/777 and 2008/1554.

(22)

Inserted by S.I. 2000/1978.

(23)

Inserted by S.I. 2003/455.

(24)

Section 80 was repealed by Schedule 6 to the Tax Credits Act 2002, with savings under article 3 of S.I. 2003/938 and section 90 was repealed by Part 2 of Schedule 7 to the Welfare Reform Act 2009 (c. 24), with transitional provisions under section 15(2) and (3) of that Act.

(25)

Relevant amending instruments are S.I. 2004/1141 and 2006/2378.

(26)

Substituted by S.I. 2008/698.

(28)

Heading amended by S.I. 1998/1658.

(29)

Substituted by S.I. 1999/3178.

(30)

Inserted by S.I. 2002/3019.

(32)

S.I. 1996/2745. Regulation 12(2) of S.I. 1996/2745 was revoked for the purposes of those regulations by S.I. 2007/2613.

(34)

Inserted by S.I. 2009/1848.

(35)

Relevant amending instrument is S.I. 2006/2378.

(36)

Relevant amending instrument is S.I. 2008/2767.

(37)

Relevant amending instrument is S.I. 2008/2767.

(39)

Inserted by S.I. 2009/1848.

(41)

Inserted by S.I. 2009/1848.

(42)

Relevant amending instrument is S.I. 2006/2378.

(43)

Relevant amending instrument is S.I. 2008/2767.

(44)

Relevant amending instrument is S.I. 2008/2767.

(46)

Inserted by S.I. 2009/1848.

(48)

Inserted by S.I. 2009/2655.

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