The Employment and Support Allowance (Repeat Assessments and Pending Appeal Awards) (Amendment) Regulations 2015

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make amendments to the Employment and Support Allowance Regulations 2008 (“ESA Regulations 2008”) and the Employment and Support Allowance Regulations 2013 (“ESA Regulations 2013”) concerning the circumstances when a claimant is treated as having limited capability for work pending an assessment of limited capability for work and the payment of pending appeal awards in respect of second or consecutive claims. Consequential amendments are also made to related provisions within the Social Security (Claims and Payments) Regulations 1987 (“Claims and Payments Regulations 1987”) and the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 (“Claims and Payments Regulations 2013”) and the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“Existing Awards Regulations 2010”).

Regulation 1 contains general provisions.

Regulation 2 sets out to whom these Regulations apply. The amendments apply to a person who falls within paragraph (2) of that regulation. Paragraph (2) provides that a person falls within that paragraph where they make, or are treated as making, a claim after these Regulations come into force, or have made and are pursuing an appeal against a decision that was made in respect of a claim made, or treated as made, after these Regulations come into force.

Regulation 3 amends regulation 30 of the ESA Regulations 2008 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made). First, it extends the period which prevents a claimant who is making a new claim for ESA from being treated as having limited capability for work pending a work capability assessment where their last work capability assessment outcome (if indeed there was one) was that they did not have limited capability for work (they have been found fit for work). Second, for claimants who have been treated as not having limited capability for work following a failure to return information or attend for or submit to a medical examination the current rules remain the same (they are prevented from being treated as having limited capability for work pending a work capability assessment where within six months preceding the date of claim they have been treated as not having limited capability for work for a failure to return information or attend for or submit to a medical examination). On a second or consecutive claim, a claimant would still be treated as having limited capability for work pending an assessment of limited capability for work where since the last determination, the claimant is suffering from a new condition or their pre-existing condition has significantly worsened.

Regulation 4 amends the ESA Regulations 2013 in a similar fashion.

Regulation 5 makes consequential amendments to regulation 3 of the Claims and Payments Regulations 1987 (claims not required for entitlement to benefit in certain cases). It amends the circumstances in which claims are not required for an award of an employment and support allowance and limits that to circumstances where a claimant is pursuing an appeal against the first decision that embodies a determination that they do not have limited capability for work, or the first such decision following a period of limited capability for work.

Regulation 6 makes consequential amendments to the Claims and Payments Regulations 2013 in a similar fashion.

Regulation 7 amends the Existing Awards Regulations 2010 in so far as those Regulations make modifications to the ESA Regulations 2008. These amendments are necessary to ensure that the modifications set out in the Existing Awards Regulations 2010 continue to work effectively in light of the amendments which are made to the ESA Regulations 2008 by regulation 3.

The report of the Social Security Advisory Committee dated 12th December 2014 in relation to the Secretary of State’s proposals to make these Regulations, together with a statement showing the extent to which these Regulations give effect to the recommendations of the Committee and, in so far as they do not give effect to them, the reasons why not, are contained in an Act Paper published by The Stationary Office Ltd.

An impact assessment has not been produced for this instrument as it has no impact on business and only a negligible impact on civil society organisations and the public sector.