# The Employment and Support Allowance Regulations 2013

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Statutory Instruments

# 2013 No. 379

Social Security

# The Employment and Support Allowance Regulations 2013

Made

25th February 2013

Coming into force

29th April 2013

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections                           2(1)(a) and (c) and (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3)                           and (4)(a) and (b), 11A(5), 11B(2) and (3), 11D(2)(d), 11E(1), 11H(5) and (6), 11J(3), (4) and (8), 17(1), (2) and (3)(a)                           and (b), 18(1), (2) and (4), 20(2) to (7), 24(1), (2)(b) and (3) and 25(2) to (5) of, and paragraphs 1(3) and (4), 3(2) and                           4(1)(a) and (c), (3) and (4) of Schedule 1 and paragraphs 1 to 4A, 5, 6, 9 and 10 of Schedule 2 to, the Welfare Reform Act                           2007 F1, sections 5(1A), 189(4) to (6) and 191 of the Social Security Administration Act 1992 F2, section 21(1)(a) of the Social Security Act 1998 F3 and paragraphs 2(3) and 3 of Schedule 5 to the Welfare Reform Act 2012 F4.                        

The Social Security Advisory Committee has agreed that the proposals in respect of these Regulations should not be referred                           to it F5.                        

A draft of these Regulations has been laid before Parliament in accordance with section 26(1) of the Welfare Reform Act 2007                           F6 and approved by a resolution of each House of Parliament.                        

F12007 c.5. Section 2(1) was amended by paragraph 24 of Schedule 3 and paragraph 6(2) of Schedule 5 to the Welfare Reform Act 2012 (c.5). Section 3(2)(d) was amended by paragraph 26(c) of Schedule 3 to the Welfare Reform Act 2012. Sections 11A to 11J were inserted                              by section 57(2) of the Welfare Reform Act 2012. Section 18(4) was amended by paragraph 26(d) of Schedule 3 to the Welfare                              Reform Act 2012. Section 20(2) to (7) was amended by paragraph 26(e) of Schedule 3 to the Welfare Reform Act 2012. Paragraph                              1(3) of Schedule 1 was substituted by section 13(4) of the Welfare Reform Act 2009 (c.24) and paragraph 1(4) was amended by section 13(5) of that Act. Paragraph 3(2) of Schedule 1 was amended by paragraph 26(f)                              of Schedule 3 to the Welfare Reform Act 2012. Paragraph 4A of Schedule 2 was inserted by section 54(6) of the Welfare Reform                              Act 2012 and paragraph 6 was amended by paragraph 26(g) of Schedule 3 to the Welfare Reform Act 2012. Section 24(1) is cited                              for the meaning it gives to “prescribed” and “regulations”.

F21992 c.4. Section 5(1A) was inserted by section 99(3) of the Welfare Reform Act 2012.

F31998 c.14.

F42012 c.5.

F5*See* sections 172(1) and 173(1)(b) of the Social Security Administration Act 1992.

F6Section 26(1) was amended by paragraph 8(4) of Schedule 3 to the Welfare Reform Act 2008 and section 57(6) of, and Schedule 14 to, the                              Welfare Reform Act 2012.

Modifications etc. (not altering text)

C1Regulations modified (24.4.2013) by The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions                              and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013 (S.I. 2013/983), {art. 10} (with application in accordance with art. 10(1))

## **PART 1**E+W+SGeneral

### Citation, commencement and applicationE+W+S

1.—(1) These Regulations may be cited as the Employment and Support Allowance Regulations 2013.                  

(2) They come into force on 29th April 2013.

(3) They apply in relation to a particular case on any day on which section 33(1)(b) of the Welfare Reform Act 2012 F7 (abolition of income-related employment and support allowance) is in force and applies in relation to that case.                  

F72012 c.5.

### InterpretationE+W+S

2.  In these Regulations—                  

“the Act” means the Welfare Reform Act 2007;                  

“advanced education” means education for the purposes of—                  

a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma                              of the Business and Technology Education Council or the Scottish Qualifications Authority, or a teaching qualification; or                           

any other course which is of a standard above ordinary national diploma, a diploma of the Business and Technology Education                              Council or a higher or advanced higher national certificate of the Scottish Qualifications Authority or a general certificate                              of education (advanced level);                           

“benefit week” means a period of seven days ending on such day as the Secretary of State may direct, but for the purposes of calculating                     any payment of income “benefit week” means the period of seven days ending on—                  

the day before the first day of the first period of seven days which—

ends on such day as the Secretary of State may direct; and

follows the date of claim for an employment and support allowance; or

the last day on which an employment and support allowance is paid if it is in payment for less than a week;

“carer's allowance” means an allowance under section 70 of the Contributions and Benefits Act F8;                  

“child” means a person under the age of 16;                  

“Claims and Payments Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims                     and Payments) Regulations 2013 F9;                  

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother,                     sister or, if any of the preceding persons is one member of a couple, the other member of that couple;                  

“confinement” has the meaning given to it by section 171(1) of the Contributions and Benefits Act F10;                  

“councillor” means—                  

in relation to England and Wales, a member of a London borough council, a county council, a county borough council, a district                              council, a parish or community council, the Common Council of the City of London or the Council of the Isles of Scilly; and                           

in relation to Scotland, a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 F11;                           

“councillor's allowance” means—                  

in England, an allowance under or by virtue of—

section 173 or 177 of the Local Government Act 1972 F12; or                                    

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 F13,                                    

other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972;

in Wales, an allowance under or by virtue of a scheme made by virtue of section 18 of the Local Government and Housing Act                              1989 other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972; or                           

in Scotland, an allowance or remuneration under or by virtue of—

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989; or

section 11 of the Local Governance (Scotland) Act 2004 F14;                                    

“couple” means—                  

a man and woman who are married to each other and are members of the same household;

a man and woman who are not married to each other but are living together as husband and wife;

two people of the same sex who are civil partners of each other and are members of the same household; or

two people of the same sex who are not civil partners of each other but are living together as if they were civil partners,

and for the purposes of paragraph (d), two people of the same sex are to be regarded as living together as if they were civil                     partners only if they would be regarded as living together as husband and wife were they instead two people of the opposite                     sex;                  

“Decisions and Appeals Regulations 1999” means the Social Security and Child Support (Decisions and Appeals) Regulations 1999 F15;                  

“Decisions and Appeals Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions                     and Appeals) Regulations 2013 F16;                  

“descriptor” means, in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which                     describes a person's ability to perform that activity;                  

“employed earner” is to be construed in accordance with section 2(1)(a) of the Contributions and Benefits Act F17;                  

“employment” includes any trade, business, profession, office or vocation; and “employed” has a corresponding meaning;                  

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament or the National Assembly                     of Wales;                  

“family” means—                  

a couple;

a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young                              person;                           

a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is                              a child or a young person;                           

“first contribution condition” means the condition set out in paragraph 1(1) of Schedule 1 to the Act F18;                  

“First-tier Tribunal” has the meaning given by section 3(1) of the Tribunals, Courts and Enforcement Act 2007 F19;                  

“health care professional” means—                  

a registered medical practitioner;

a registered nurse; or

an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section                              60 of the Health Act 1999 F20;                           

“Health Service Act” means the National Health Service Act 2006 F21;                  

“Health Service (Wales) Act” means the National Health Service (Wales) Act 2006 F22;                  

“Income Support Regulations” means the Income Support (General) Regulations 1987 F23;                  

“limited capability for work assessment” means the assessment described in regulation 15(2) and in Schedule 2;                  

“Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations 1976 F24;                  

“medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a                     person receiving or submitting to medical treatment are to be construed accordingly;                  

“member of Her Majesty's forces” means a person, other than one mentioned in Part 2 of Schedule 1, who is—                  

over 16 years of age; and

a member of an establishment or organisation specified in Part 1 of that Schedule,

but does not include any such person while absent on desertion;

“National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 F25 (rate of the national minimum wage);                  

“net earnings” means such earnings as are calculated in accordance with regulation 81;                  

“occupational pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993 F26;                  

“part-time employment” means, if the claimant were entitled to income support, employment in which the claimant is not to be treated as engaged                     in remunerative work under regulation 5 or 6(1) and (4) of the Income Support Regulations (persons treated, or not treated,                     as engaged in remunerative work) F27;                  

“partner” means—                  

where a claimant is a member of a couple, the other member of that couple; or

where a claimant is a husband or wife by virtue of a polygamous marriage, the other party to the marriage or any spouse additional                              to either party to the marriage;                           

“payment” includes a part of a payment;                  

“pay period” means the period in respect of which a claimant is, or expects to be, normally paid by the claimant's employer, being a                     week, a fortnight, four weeks, a month or other shorter or longer period as the case may be;                  

“period of limited capability for work” means, except in regulation 3(2), a period throughout which a person has, or is treated as having, limited capability for                     work under these Regulations, and does not include a period which is outside the prescribed time for claiming as specified                     in regulation 28 of the Claims and Payments Regulations 2013;                  

“permanent health insurance payment” means any periodical payment arranged by an employer under an insurance policy providing benefits in connection with physical                     or mental illness or disability, in relation to a former employee on the termination of that person's employment;                  

“personal pension scheme” means—                  

a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993 F28;                           

an annuity contract, trust scheme or substituted contract which is treated as having become a registered pension scheme by                              virtue of paragraph 1(1)(f) of Schedule 36 to the Finance Act 2004 F29;                           

a personal pension scheme which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(g) of                              Schedule 36 to the Finance Act 2004;                           

“polygamous marriage” means any marriage entered into under a law which permits polygamy where—                  

either party has for the time being any spouse additional to the other party; and

the claimant, the other party to the marriage and the additional spouse are members of the same household;

“qualifying young person” has the meaning given by section 142 of the Contributions and Benefits Act (child and qualifying young person) F30;                  

“relative” means close relative, grand-parent, grand-child, uncle, aunt, nephew or niece;                  

“second contribution condition” means the condition set out in paragraph 2(1) of Schedule 1 to the Act;                  

“self-employed earner” is to be construed in accordance with section 2(1)(b) of the Contributions and Benefits Act;                  

“state pension credit” means a state pension credit under the State Pension Credit Act 2002 F31;                  

“Tax Credits Act” means the Tax Credits Act 2002 F32;                  

“terminally ill”, in relation to a claimant, means the claimant is suffering from a progressive disease and death in consequence of that                     disease can reasonably be expected within six months;                  

“training” means—                  

training in pursuance of arrangements made under section 2(1) of the Employment and Training Act 1973 F33 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990 F34; or                           

any training received on a course which a person attends for 16 hours or more a week, the primary purpose of which is the                              teaching of occupational or vocational skills;                           

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—                  

out of public funds by a Government department or by or on behalf of the Secretary of State, Skills Development Scotland,                              Scottish Enterprise, Highlands and Islands Enterprise, the Chief Executive of Skills Funding or the Welsh Ministers;                           

to a person for that person's maintenance or in respect of a member of that person's family; and

for the period, or part of the period, during which the person is following a course of training or instruction provided by,                              or in pursuance of arrangements made with, that department or approved by that department in relation to that person or provided                              or approved by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise, Highlands and Islands                              Enterprise, or the Welsh Ministers,                           

but does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that                     that person is following a course of full-time education, other than under arrangements made under section 2 of the Employment                     and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990, or is training as a teacher;                  

“voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;                  

“week” means a period of seven days except in relation to regulation 22;                  

“working tax credit” means a working tax credit under section 10 of the Tax Credits Act;                  

“young person” is a person who, except where section 6 of the Children (Leaving Care) Act 2000 F35 (exclusion from benefits) applies, falls within the definition of qualifying young person in section 142 of the Contributions                     and Benefits Act (child and qualifying young person).                  

F8Section 70 was amended by S.I.s 1994/2556, 2002/1457 and 2011/2426.

F9S.I. 2013/380.

F10The definition of “confinement” in section 171(1) of the Contributions and Benefits Act was amended by section 4(2) of the                              Still-Birth (Definition) Act 1992.

F111994 c.39. Section 2 was amended by section 232(1) of the Environment Act 1995 (c.25).

F121972 c.70. Section 173 and 177 were repealed by the Local Government (Wales) Measure 2011. Section 173 was amended by paragraph 26                              of Schedule 11 to the Local Government and Housing Act 1989 (c.42), **section 24** of the Local Government, Planning and Land Act 1980 (c.42) and S.I. 1977/1710. Section 173 was modified by S.I. 2002/2899. Section 177 was amended by paragraph 28 of Schedule 11 to the Local Government and Housing Act 1989, paragraph 3 of Schedule                              30 to the School Standards and Framework Act 1998 (c.31), **paragraph 1** of Schedule 21 to the Education Act 2002 (c.32), **paragraph 1** of Schedule 3 to the Education and Inspections Act 2006 (c.40), **paragraph 42** of Schedule 1 and Schedule 2 to the Education and Skills Act 2002 (c.25) and paragraph 1 of Schedule 1 to the Education Act 2011 (c.21). Section 177 was modified by S.I.s 1985/1884, 1996/1243 and 2005/421.

F131989 c.42. Parts of section 18 were repealed and amended by the Local Government (Wales) Measure 2011. Section 18 was amended by section                              99 of the Local Government Act 2000 (c.22), **paragraph 37** of Schedule 4 to the Police and Magistrates' Court Act 1994 (c.29) and paragraph 97 of Schedule 37 to the Education Act 1996 (c.56). Section 18 was modified by paragraph 11 of Schedule 7 to the Environment Act 1995 (c.25).

F142004 asp 9.

F15S.I. 1999/991.

F16S.I. 2013/381.

F17Section 2(1) was amended by paragraph 171 of Schedule 6 to the Income Tax (Earnings and Pensions) Act 2003 (c.1).

F18Paragraph 1(1) of Schedule 1 was amended by section 13(1) of the Welfare Reform Act 2009 (c.24)

F192007 c.15.

F201998 c.8. Section 60 was amended by section 26(9) of the National Health Service Reform and Health Care Professions Act 2002 (c.17), **paragraph 1** of Schedule 8 and paragraph 10 of Schedule 10 to the Health and Social Care Act 2008 (c.14), **sections 209**, 210 and 213 of, and paragraphs 60 and 72 of Schedule 15 to, the Health and Social Care Act 2012 (c.7) and S.I.s 2002/253 and 243 and 2010/231.

F212006 c.41.

F222006 c.42.

F23S.I. 1987/1967.

F24S.I. 1976/615.

F25S.I. 1999/584. Relevant amendments were made by S.I. 2012/2397.

F261993 c.48. Relevant amendments were made by section 239 of the Pensions Act 2004 and S.I. 2007/3014.

F27Regulation 5 was amended by S.I.s 1988/1445 and 2022, 1989/1323, 1990/547, 1991/1559, 1993/2119, 1995/516, 1996/1944, 1998/663, 1999/2556                              and 3178, 2000/681, 2001/488, 2002/2689 and 2007/2618. Regulation 6(1) and (4) was amended by S.I.s 1988/1445, 1991/1559,                              1992/468 and 2155, 1994/2139, 1995/516, 1999/2165, 2556 and 3156, 2000/681, 2004/963, 2009/3228 and 2010/641.

F28Relevant amendments were made by section 239 of the Pensions Act 2004 and paragraph 23 of Schedule 20 to the Finance Act 2007 (c.11).

F292007 c.11.

F30Section 142 was substituted by section 1 of the Child Benefit Act 1995 (c.6).

F312002 c.16.

F322002 c.21.

F331973 c.50. Section 2 was substituted by section 25 of the Employment Act 1988 (c.19).

F341990 c.35. Section 2(3) was amended by section 47 of, and Schedule 10 to, the Trade Union Reform and Employment Rights Act 1993 (c.19).

F352000 c.35. Section 6 was amended by Schedule 7 to the Welfare Reform Act 2009.

### Further interpretationE+W+S

3.—(1) In these Regulations, any reference to the claimant's family is to be construed as if it included in relation to a polygamous                     marriage a reference to any partner and any child or young person who is a member of the claimant's household.                  

(2) For the purposes of paragraph 4 of Schedule 1 to the Act (condition relating to youth), “period of limited capability for work” means a period throughout which a person has, or is treated as having, limited capability for work.                  

(3) For the purposes of paragraph 5 of Schedule 1 to the Act, “week” means a period of seven days.                  

### Rounding of fractionsE+W+S

4.  For the purposes of these Regulations—                  

(a)where any calculation under these Regulations results in a fraction of a penny, that fraction is, if it would be to the claimant's                        advantage, to be treated as a penny, but otherwise it must be disregarded;                  

(b)where an employment and support allowance is awarded for a period which is not a complete benefit week and the applicable                        amount in respect of the period results in an amount which includes a fraction of a penny, that fraction is to be treated                        as a penny.                  

## **PART 2**E+W+SThe assessment phase

### The end of the assessment phaseE+W+S

5.—(1) Subject to paragraphs (2) and (3) and regulation 6, 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) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability                     for work.                  

(3) This paragraph applies where, at the end of the 13 week period referred to in paragraph (1)—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and                  

(b)the claimant has not been treated as having limited capability for work in accordance with regulation 16, 21, 22 or 25.                  

### The assessment phase – previous claimantsE+W+S

6.—(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 paragraphs (3), (4) and (5), 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)all of the following apply—                  

(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 86;                  

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

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

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

(b)all of the following apply—                  

(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 86;                  

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

(iii)the previous period of limited capability for work was terminated by virtue of a determination that the claimant did not have                        limited capability for work;                  

(iv)the period for which the claimant was previously entitled was no more than 13 weeks; and                  

(v)a determination is made in relation to the current period of limited capability for work that the claimant has or is treated,                        other than under regulation 26, as having limited capability for work; or                  

(c)all of the following apply—                  

(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 86;                  

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

(iii)in relation to the previous award of an employment and support allowance, a determination was made that the claimant had limited                        capability for work or was treated, other than under regulation 26, as having limited capability for work; and                  

(iv)the period for which the claimant was previously entitled was no more than 13 weeks.                  

(3) Where paragraph (4) applies, the assessment phase is to end when it is determined whether the claimant has limited capability                     for work.                  

(4) This paragraph applies where, on the day referred to in paragraph (1)(b)—

(a)the claimant has not been assessed in accordance with a limited capability for work assessment; and                  

(b)the claimant has not been treated as having limited capability for work in accordance with regulation 16, 21, 22 or 25.                  

(5) 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)paragraphs (3) and (4) do not apply; and                  

(b)paragraph (1) does not apply to any period of limited capability for work to which regulation 87(2) applies until a determination                        of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal.                  

### 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 applyE+W+S

7.—(1) Subject to paragraph (4), section 2(2)(a) and (3)(a) of the Act does 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 Decisions and Appeals Regulations 1999 or the Decisions                        and Appeals Regulations 2013 which contains an express statement that the claimant is terminally ill;                  

(b)the case is a relevant linked case;                  

(c)the case is one where—                  

(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 their satisfying the conditions in paragraphs 11 and 12 of Schedule 2 to the Income Support                        Regulations F36; and                  

(iii)that entitlement to income support ended only by virtue of the coming into force, in relation to the claimant, of the Social                        Security (Lone Parents and Miscellaneous Amendments) Regulations 2008 F37; or                  

(d)a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after                        time-limiting) F38.                  

(2) For the purposes of paragraph (1)(b) a relevant linked case is a case mentioned in paragraph (3) where 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                     86.                  

(3) For the purposes of paragraph (2), the cases are as follows—

(a)case 1 is where—                  

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under section 2(2)                        or (3) of the Act) in the earlier period of limited capability for work; and                  

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by                        virtue of a determination that the claimant did not have limited capability for work;                  

(b)case 2 is where—                  

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

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer;                  

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of                        a determination that the claimant did not have, or was treated as not having, limited capability for work; and                  

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability                        for work or is treated, other than under regulation 26, as having limited capability for work;                  

(c)case 3 is where—                  

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

(ii)the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer;                  

(iii)the previous period for which the claimant was entitled to an employment and support allowance was terminated before it could                        be determined whether the claimant had limited capability for work or was treated, other than under regulation 26, as having                        limited capability for work; and                  

(iv)it is determined in relation to the current period of limited capability for work that the claimant has limited capability                        for work or is treated, other than under regulation 26, as having limited capability for work; and                  

(d)case 4 is where—                  

(i)the claimant was entitled to an employment and support allowance (including entitlement to a component under section 2(2)                        or (3) of the Act) in the earlier period of limited capability for work;                  

(ii)the previous period for which the claimant was entitled to an employment and support allowance was terminated because it was                        determined that the claimant did not have limited capability for work or was treated as not having limited capability for                        work; and                  

(iii)it is determined in relation to the current period of limited capability for work that the claimant has limited capability                        for work or is treated, other than under regulation 26, as having limited capability for work.                  

(4) Paragraph (1)(b) does not apply to any period of limited capability for work to which regulation 87(2) applies until the determination                     of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal.                  

F36Paragraph 11 was amended by S.I.s 2002/3019, 2003/2379, 2007/719 and 2009/1488. Paragraph 12 was amended by S.I.s 1988/663 and 2022, 1989/1678,                              1991/2742, 1994/2139, 1995/482 and 2303, 1998/2231, 1999/2556, 2002/3019, 2003/455, 1589 and 2379, 2004/1141, 2005/3360, 2006/2378,                              2007/719 and 2010/1907.

F37S.I. 2008/3051.

F38Section 1B was inserted by section 52 of the Welfare Reform Act 2012.

## **PART 3**E+W+SConditions of entitlement

### Conditions relating to national insurance and relevant earningsE+W+S

8.—(1) A claimant's relevant earnings for the purposes of paragraph 1(2)(a) of Schedule 1 to the Act (employment and support allowance:                     conditions relating to national insurance) F39 are the total amount of the claimant's earnings equal to the lower earnings limit for the base tax year.                  

(2) For the purposes of paragraph (1), earnings which exceed the lower earnings limit are to be disregarded.

F39Paragraph 1(2) was substituted by section 13 of the Welfare Reform Act 2009.

### Relaxation of the first contribution conditionE+W+S

9.—(1) A claimant who satisfies any of the conditions in paragraph (2) is to be taken to satisfy the first contribution condition                     if—                  

(a)the claimant paid Class 1 or Class 2 contributions before the relevant benefit week in respect of any one tax year; and                  

(b)the claimant has—                  

(i)earnings equal to the lower earnings limit in that tax year on which primary Class 1 contributions have been paid or treated                        as paid which in total, and disregarding any earnings which exceed the lower earnings limit for that year, are not less than                        that limit multiplied by 26; or                  

(ii)earnings factors in that tax year derived from Class 2 contributions multiplied by 26.                  

(2) The conditions referred to in paragraph (1) are that the claimant—

(a)was entitled to a carer's allowance in the last complete tax year immediately preceding the relevant benefit year;                  

(b)had been—                  

(i)engaged in qualifying remunerative work (which has the meaning given by Part 1 of the Tax Credits Act) for a period of more                        than two years immediately before the first day of the period of limited capability for work; and                  

(ii)entitled to working tax credit where the disability element or the severe disability element of working tax credit specified                        in regulation 20(1)(b) or (f) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 F40 was included in the award;                  

(c)in respect of any week in any tax year preceding the relevant benefit year—                  

(i)is entitled to be credited with earnings or contributions in accordance with regulation 9D of the Social Security (Credits)                        Regulations 1975 (credits for certain periods of imprisonment or detention in legal custody) F41; or                  

(ii)would have been so entitled had an application to the Secretary of State been made for the purpose of that regulation; or                  

(d)in respect of any week in the last complete tax year preceding the relevant benefit year, is entitled to be credited with                        earnings in accordance with regulation 9E of the Social Security (Credits) Regulations 1975 (credits for certain spouses and                        civil partners of members of Her Majesty's forces) F42.                  

F40S.I. 2002/2005.

F41S.I. 1975/556. Regulation 9D was inserted by S.I. 2001/573.

F42Regulation 9E was inserted by S.I. 2010/385.

### Condition relating to youth – claimants aged 20 or over but under 25E+W+S

10.—(1) For the purposes of paragraph 4(1)(a) of Schedule 1 to the Act, a claimant who satisfies the conditions specified in paragraph                     (2) falls within a prescribed case.                  

(2) The conditions are that the claimant—

(a)registered on a course of—                  

(i)full-time advanced or secondary education; or                  

(ii)training,                  

at least three months before attaining the age of 20; and

(b)not more than one academic term immediately after registration attended one or more such courses in respect of a period referred                        to in paragraph (3).                  

(3) The period mentioned in paragraph (2)(b) is a period which—

(a)began on or before a day at least three months before the day the claimant attained the age of 20; and                  

(b)ended no earlier than the beginning of the last two complete tax years before the relevant benefit year which would have applied                        if the claimant was entitled to an employment and support allowance having satisfied the first contribution condition and                        the second contribution condition.                  

(4) For the purposes of this regulation a claimant is to be treated as attending a course on any day on which the course is interrupted                     by an illness or domestic emergency.                  

(5) In this regulation—

“full-time” includes part-time where the person's disability prevents attendance at a full-time course;                  

“secondary education” means a course of education below a course of advanced education by attendance—                  

at an establishment recognised by the Secretary of State—

as being a university, college or school; or

as comparable to a university, college or school;

at an establishment that is not mentioned in paragraph (a) where the Secretary of State is satisfied that the education is                              equivalent to that given in an establishment recognised—                           

as being a university, college or school; or

as comparable to a university, college or school.

(6) A claimant is to be treated as not having limited capability for work on a day which is not, for the purposes of paragraph                     4(1)(d)(ii) of Schedule 1 to the Act (period of 196 consecutive days preceding the relevant period of limited capability for                     work), part of a period of consecutive days of limited capability for work.                  

### Condition relating to youth – previous claimantsE+W+S

11.—(1) Paragraph 4(1)(a) of Schedule 1 to the Act does not apply to a claimant—                  

(a)who has previously ceased to be entitled to an employment and support allowance to which the claimant was entitled by virtue                        of satisfying the condition set out in paragraph 4(1) of Schedule 1 to the Act;                  

(b)whose previous entitlement had not been ended by a decision which embodied a determination (other than a determination in                        the circumstances applicable to a claimant under paragraph (2)(a)) that the claimant did not have limited capability for work;                  

(c)in relation to whom regulation 86 (linking rules) does not apply;                  

(d)who is aged 20 or over or, where regulation 10 would otherwise apply to the person, aged 25 or over; and                  

(e)to whom paragraph (2) applies.                  

(2) This paragraph applies to a claimant—

(a)whose previous entitlement to an employment and support allowance ended only with a view to that person taking up employment                        or training;                  

(b)whose earnings factor from an employment or series of employments pursued in the period from the end of the previous entitlement                        to the beginning of the period of limited capability for work, was below the lower earnings limit multiplied by 25 in any                        of the last three complete tax years before the beginning of the relevant benefit year; and                  

(c)who—                  

(i)in respect of the last two complete tax years before the beginning of the relevant benefit year has either paid or been credited                        with earnings equivalent in each of those years to the year's lower earnings limit multiplied by 50, of which at least one                        such payment or credit, in the last complete tax year, was in respect of the disability element or severe disability element                        of working tax credit; or                  

(ii)makes a claim for an employment and support allowance within the period of 12 weeks after the day on which the last employment                        referred to in sub-paragraph (b) ceased.                  

### Condition relating to youth – residence or presenceE+W+S

12.—(1) The conditions prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Act as to residence and presence in Great                     Britain are that the claimant—                  

(a)is ordinarily resident in Great Britain;                  

(b)is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999                        F43 or is a person to whom paragraph (3) applies;                  

(c)is present in Great Britain; and                  

(d)has been present in Great Britain for a period of, or for periods amounting in aggregate to, not less than 26 weeks in the                        52 weeks immediately preceding the relevant benefit week.                  

(2) For the purposes of paragraph (1), a claimant is to be treated as being resident and present in Great Britain where the claimant                     is absent from Great Britain by reason only of being—                  

(a)the spouse, civil partner, son, daughter, father, father-in-law, mother or mother-in-law of, and living with, a member of                        Her Majesty's forces who is abroad in that capacity;                  

(b)in employment prescribed for the purposes of paragraph 7(1)(c) of Schedule 2 to the Act F44 in connection with continental shelf operations; or                  

(c)abroad in the capacity of being an aircraft worker or mariner.                  

(3) This paragraph applies where a person is—

(a)a member of a family of a national of an European Economic Area state;                  

(b)a person who is lawfully working in Great Britain and is a national of a State with which the European Union has concluded                        an agreement under Article 217 of the Treaty on the Functioning of the European Union providing, in the field of social security,                        for the equal treatment of workers who are nationals of the signatory State and their families;                  

(c)a person who is a member of a family of, and living with, a person specified in sub-paragraph (b); or                  

(d)a person who has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking                        by another person or persons pursuant to the immigration rules within the meaning of the Immigration Act 1971 F45 to be responsible for that person's maintenance and accommodation.                  

(4) A person is to be treated as having satisfied the residence or presence conditions in paragraph (1) throughout a period of                     limited capability for work where those conditions are satisfied on the first day of that period of limited capability for                     work.                  

(5) In this regulation—

“aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other                     member of the crew of any aircraft, or in any other capacity on board any aircraft where—                  

the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mail                              carried on that aircraft; and                           

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft                              is in flight,                           

but does not include a person who is in employment as a member of Her Majesty's forces;

“mariner” means a person who is, or has been, in employment under a contract of service either as a master or other member of the                     crew of any ship or vessel, or in any other capacity on board any ship or vessel where—                  

the employment in that other capacity is for the purposes of that ship or vessel or its crew or any passengers or cargo or                              mail carried by the ship or vessel; and                           

the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or                              vessel is on its voyage,                           

but does not include a person who is in employment as a member of Her Majesty's forces.

(6) In the definition of “mariner” in paragraph (5), “passenger” means any person carried on a ship or vessel except—                  

(a)a person employed or engaged in any capacity on board the ship or vessel on the business of the ship or vessel; or                  

(b)a person on board the ship or vessel either in pursuance of an obligation to carry shipwrecked, distressed or other persons,                        or by reason of any circumstance that neither the master nor the owner nor the charterer (if any) could have prevented or                        forestalled.                  

F431999 c.33.

F44Paragraph 7 was amended by paragraph 26 of Schedule 3 and Schedule 14 to the Welfare Reform Act 2012.

F451971 c.77.

### Condition relating to youth – full-time educationE+W+S

13.—(1) For the purposes of paragraph 4(1)(b) of Schedule 1 to the Act, a claimant is to be treated as receiving full-time education                     for any period during which the claimant—                  

(a)is at least 16 years old but under the age of 19; and                  

(b)attends a course of education for 21 hours or more a week.                  

(2) For the purposes of paragraph (1)(b), in calculating the number of hours a week during which a claimant attends a course,                     no account is to be taken of any instruction or tuition which is, in the opinion of the Secretary of State, not suitable for                     persons of the same age who do not have a disability.                  

(3) In determining the duration of a period of full-time education under paragraph (1) any temporary interruption of that education                     may be disregarded.                  

(4) A claimant who is 19 years of age or over is not to be treated for the purposes of paragraph 4(1)(b) of Schedule 1 to the                     Act as receiving full-time education.                  

### Modification of the relevant benefit yearE+W+S

14.—(1) Where paragraph (2) applies, paragraph 3(1)(f) of Schedule 1 to the Act has effect as if the “relevant benefit year” were                     any benefit year which includes all or part of the period of limited capability for work which includes the relevant benefit                     week.                  

(2) This paragraph applies where a claimant has made a claim for employment and support allowance but does not satisfy—

(a)the first contribution condition;                  

(b)the second contribution condition; or                  

(c)either contribution condition,                  

but would satisfy both of those conditions if the modified definition of “relevant benefit year” provided in paragraph (1)                     applied.                  

## **PART 4**E+W+SLimited Capability for Work

### Determination of limited capability for workE+W+S

15.—(1) For the purposes of Part 1 of the Act, whether a claimant's capability for work is limited by the claimant's physical or mental                     condition and, if it is, whether the limitation is such that it is not reasonable to require the claimant to work is to be                     determined on the basis of a limited capability for work assessment of the claimant in accordance with this Part.                  

(2) The limited capability for work assessment is an assessment of the extent to which a claimant who has some specific disease                     or bodily or mental disablement is capable of performing the activities prescribed in Schedule 2 or is incapable by reason                     of such disease or bodily or mental disablement of performing those activities.                  

(3) Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has limited capability for work if, by adding the                     points listed in column (3) of Schedule 2 against each descriptor listed in that Schedule which applies in the claimant's                     case, the claimant obtains a total score of at least—                  

(a)15 points whether singly or by a combination of descriptors specified in Part 1 of that Schedule;                  

(b)15 points whether singly or by a combination of descriptors specified in Part 2 of that Schedule; or                  

(c)15 points by a combination of descriptors specified in Parts 1 and 2 of that Schedule.                  

(4) In assessing the extent of a claimant's capability to perform any activity listed in Part 1 of Schedule 2, the claimant is                     to be assessed as if—                  

(a)fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,                  

(b)wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.                  

(5) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 2, it is a condition that the                     claimant's incapability to perform the activity arises—                  

(a)in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;                  

(b)in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or                  

(c)in respect of any descriptor or descriptors listed in—                  

(i)Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical                        disease or disablement; or                  

(ii)Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental                        illness or disablement.                  

(6) Where more than one descriptor specified for an activity applies to a claimant, only the descriptor with the highest score                     in respect of each activity which applies is to be counted.                  

(7) Where a claimant—

(a)has been determined to have limited capability for work; or                  

(b)is to be treated as having limited capability for work under regulation 16, 21, 22 or 25,                  

the Secretary of State may, if paragraph (8) applies, determine afresh whether the claimant has or is to be treated as having                     limited capability for work.                  

(8) This paragraph applies where—

(a)the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant's                        physical or mental condition;                  

(b)the Secretary of State wishes to determine whether the previous determination of limited capability for work or that the claimant                        is to be treated as having limited capability for work, was made in ignorance of, or was based on a mistake as to, some material                        fact; or                  

(c)at least three months have passed since the date on which the claimant was determined to have limited capability for work                        or to be treated as having limited capability for work.                  

### Certain claimants to be treated as having limited capability for workE+W+S

16.—(1) A claimant is to be treated as having limited capability for work if—                  

(a)the claimant is terminally ill;                  

(b)the claimant is—                  

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;                  

(ii)likely to receive such treatment within six months after the date of the determination of capability for work; or                  

(iii)recovering from such treatment,                  

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work;

(c)the claimant is—                  

(i)excluded or abstains from work pursuant to a request or notice in writing lawfully made or given under an enactment; or                  

(ii)otherwise prevented from working pursuant to an enactment,                  

by reason of it being known or reasonably suspected that the claimant is infected or contaminated by, or has been in contact                     with a case of, a relevant infection or contamination;                  

(d)in the case of a pregnant woman, there is a serious risk of damage to her health or to the health of her unborn child if she                        does not refrain from work;                  

(e)in the case of a pregnant woman, she—                  

(i)is within the maternity allowance period (which has the meaning it has in section 35(2) of the Contributions and Benefits                        Act); and                  

(ii)is entitled to a maternity allowance under section 35(1) of the Contributions and Benefits Act F46;                  

(f)in the case of a pregnant woman whose expected or actual date of confinement has been certified in accordance with the Medical                        Evidence Regulations, on any day in the period—                  

(i)beginning with the first date of the 6th week before the expected week of her confinement or the actual date of her confinement,                        whichever is earlier; and                  

(ii)ending on the 14th day after the actual date of her confinement,                  

if she would have no entitlement to a maternity allowance or statutory maternity pay were she to make a claim in respect of                     that period;                  

(g)the claimant meets any of the descriptors at paragraph 15 or 16 of Schedule 3 in accordance with regulation 30(2), (3) and                        (6) where applicable; or                  

(h)the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability                        for work on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013 F47.                  

(2) In this regulation, “relevant infection or contamination” means—                  

(a)in England and Wales—                  

(i)any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control                        of Disease) Act 1984 F48 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing,                        protecting against, controlling or providing a public health response to, such incidence or spread; or                  

(ii)tuberculosis or any infectious disease to which regulation 9 of the Public Health (Aircraft) Regulations 1979 (powers in respect                        of persons leaving aircraft) F49 applies or to which regulation 10 of the Public Health (Ships) Regulations 1979 (powers in respect of certain persons on                        ships) F50 applies; and                  

(b)in Scotland, any—                  

(i)infectious disease within the meaning of section 1(5) of the Public Health etc (Scotland) Act 2008 F51, or exposure to an organism causing that disease; or                  

(ii)contamination within the meaning of section 1(5) of that Act, or exposure to a contaminant,                  

to which sections 56 to 58 of that Act (compensation) apply.

F46Section 35(1) was substituted by section 53 of the Welfare Reform and Pensions Act 1999 (c.30) and amended by paragraph 4 of Schedule 7 to the Employment Act 2002 (c.22) and section 63 of the Welfare Reform Act 2012.

F47S.I. 2013/376

F481984 c.22. Section 45A and Part 2A were inserted by section 129 of the Health Act 2008 (c.14).

F49S.I. 1979/1434.

F50S.I. 1979/1435. Regulation 10 was amended by S.I.s 2007/1446 and 1901.

F512008 asp 5.

### Information required for determining capability for workE+W+S

17.—(1) Subject to paragraphs (2) and (3), the information or evidence required to determine whether a claimant has limited capability                     for work is—                  

(a)evidence of limited capability for work in accordance with the Medical Evidence Regulations (which prescribe the form of doctor's                        statement or other evidence required in each case);                  

(b)any information relating to a claimant's capability to perform the activities referred to in Schedule 2 as may be requested                        in the form of a questionnaire; and                  

(c)any such additional information as may be requested.                  

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited                     capability for work without the information specified in paragraph (1)(b), that information must not be required for the purposes                     of making the determination.                  

(3) Paragraph (1) does not apply in relation to a determination whether a claimant is to be treated as having limited capability                     for work under any of regulations 16 (certain claimants to be treated as having limited capability for work), 21 (hospital                     in-patients) and 22 (claimants receiving certain treatment).                  

### Failure to provide information in relation to limited capability for workE+W+S

18.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 17(1)(b), that claimant is,                     subject to paragraph (2), to be treated as not having limited capability for work.                  

(2) Paragraph (1) does not apply unless—

(a)the claimant was sent a further request at least three weeks after the date of the first request; and                  

(b)at least one week has passed since the further request was sent.                  

### Claimant may be called for a medical examination to determine whether the claimant has limited capability for workE+W+S

19.—(1) Where it falls to be determined whether a claimant has limited capability for work, that claimant may be called by or on behalf                     of a health care professional approved by the Secretary of State to attend for a medical examination.                  

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned                     in paragraph (1), the claimant is to be treated as not having limited capability for work.                  

(3) Paragraph (2) does not apply unless—

(a)written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or                  

(b)that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.                  

### Matters to be taken into account in determining good cause in relation to regulations 18 or 19E+W+S

20.  The matters to be taken into account in determining whether a claimant has good cause under regulation 18 (failure to provide                     information in relation to limited capability for work) or 19 (failure to attend a medical examination to determine limited                     capability for work) include—                  

(a)whether the claimant was outside Great Britain at the relevant time;                  

(b)the claimant's state of health at the relevant time; and                  

(c)the nature of any disability the claimant has.                  

### Hospital patientsE+W+S

21.—(1) A claimant is to be treated as having limited capability for work on any day on which that claimant is undergoing medical                     or other treatment as a patient in a hospital or similar institution, or which is a day of recovery from that treatment.                  

(2) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where                     the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.                  

(3) For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar                     institution only if that claimant has been advised by a health care professional to stay overnight or for a longer period                     following medical or other treatment.                  

(4) For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution as referred                     to in paragraph (1) and the Secretary of State is satisfied that the claimant should be treated as having limited capability                     for work on that day.                  

### Claimants receiving certain treatmentE+W+S

22.—(1) Subject to paragraph (2), a claimant receiving—                  

(a)regular weekly treatment by way of haemodialysis for chronic renal failure;                  

(b)treatment by way of plasmapheresis; or                  

(c)regular weekly treatment by way of total parenteral nutrition for gross impairment of enteric function,                  

is to be treated as having limited capability for work during any week in which that claimant is engaged in receiving that                     treatment or has a day of recovery from that treatment.                  

(2) A claimant who receives the treatment referred to in paragraph (1) is only to be treated as having limited capability for                     work from the first week of treatment in which the claimant undergoes no fewer than—                  

(a)two days of treatment;                  

(b)two days of recovery from any of the forms of treatment listed in paragraph (1)(a) to (c); or                  

(c)one day of treatment and one day of recovery from that treatment,                  

but the days of treatment or recovery from that treatment or both need not be consecutive.

(3) For the purpose of this regulation “day of recovery” means a day on which a claimant is recovering from any of the forms of treatment listed in paragraph (1)(a) to (c) and the                     Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.                  

### Claimant to be treated as having limited capability for work throughout a dayE+W+S

23.  A claimant who, at the commencement of any day has, or after that develops, limited capability for work as determined in accordance                     with the limited capability for work assessment is to be treated as having limited capability for work on that day.                  

### Night workersE+W+S

24.—(1) Where a claimant works for a continuous period which extends over midnight into the following day, that claimant is to be                     treated as having limited capability for work on the day on which the lesser part of that period falls if that claimant had                     limited capability for work for the remainder of that day.                  

(2) Where, in relation to a period referred to in paragraph (1), the number of hours worked before and after midnight is equal—

(a)if the days in question fall at the beginning of a period of limited capability for work, the claimant is to be treated as                        having limited capability on the second day; and                  

(b)if the days in question fall at the end of a period of limited capability for work, the claimant is to be treated as having                        limited capability for work on the first day.                  

### Exceptional circumstancesE+W+S

25.—(1) A claimant who does not have limited capability for work as determined in accordance with the limited capability for work                     assessment is to be treated as having limited capability for work if paragraph (2) applies to the claimant.                  

(2) Subject to paragraph (3), this paragraph applies if—

(a)the claimant is suffering from a life-threatening disease in relation to which—                  

(i)there is medical evidence that the disease is uncontrollable, or uncontrolled, by a recognised therapeutic procedure; and                  

(ii)in the case of a disease that is uncontrolled, there is a reasonable cause for it not to be controlled by a recognised therapeutic                        procedure; or                  

(b)the claimant suffers from some specific disease or bodily or mental disablement and, by reason of such disease or disablement,                        there would be a substantial risk to the mental or physical health of any person if the claimant were found not to have limited                        capability for work.                  

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a)reasonable adjustments being made in the claimant's workplace; or                  

(b)the claimant taking medication to manage the claimant's condition where such medication has been prescribed for the claimant                        by a registered medical practitioner treating the claimant.                  

(4) In this regulation “medical evidence” means—                  

(a)evidence from a health care professional approved by the Secretary of State; and                  

(b)evidence (if any) from any health care professional or a hospital or similar institution,                  

or such part of such evidence as constitutes the most reliable evidence available in the circumstances.

### Conditions for treating a claimant as having limited capability for work until a determination about limited capability for                     work has been madeE+W+S

26.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be treated as having limited capability for work until                     such time as it is determined—                  

(a)whether or not the claimant has limited capability for work;                  

(b)whether or not the claimant is to be treated as having limited capability for work otherwise than in accordance with this                        regulation; or                  

(c)whether the claimant falls to be treated as not having limited capability for work in accordance with regulation 18 (failure                        to provide information in relation to limited capability for work) or 19 (failure to attend a medical examination to determine                        limited capability for work).                  

(2) The conditions are—

(a)that the claimant provides evidence of limited capability for work in accordance with the Medical Evidence Regulations; and                  

(b)that it has not, within the six months preceding the date of claim for employment and support allowance, been determined,                        in relation to the claimant's entitlement to any benefit, allowance or advantage which is dependent on the claimant having                        limited capability for work, that the claimant does not have limited capability for work or is to be treated as not having                        limited capability for work under regulation 18 or 19 unless paragraph (4) applies.                  

(3) Paragraph (2)(b) does not apply where a claimant has made and is pursuing an appeal against a decision that embodies a determination                     that the claimant does not have limited capability for work and that appeal has not yet been determined by the First-tier                     Tribunal.                  

(4) This paragraph applies where—

(a)the claimant is suffering from some specific disease or bodily or mental disablement from which the claimant was not suffering                        at the time of that determination;                  

(b)a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly                        worsened; or                  

(c)in the case of a claimant who was treated as not having limited capability for work under regulation 18 (failure to provide                        information), the claimant has since provided the information requested under that regulation.                  

### Certain claimants to be treated as not having limited capability for workE+W+S

27.—(1) A claimant who is or has been a member of Her Majesty's forces is to be treated as not having limited capability for work                     on any day which is recorded by the Secretary of State as a day of sickness absence from duty.                  

(2) A claimant is to be treated as not having limited capability for work on any day on which the claimant attends a training                     course in respect of which the claimant is paid a training allowance or premium pursuant to arrangements made under section                     2 of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990.                  

(3) Paragraph (2) is not to apply—

(a)for the purposes of any claim to an employment and support allowance for a period commencing after the claimant ceased attending                        the training course in question; or                  

(b)where any training allowance or premium paid to the claimant is paid for the sole purpose of travelling or meal expenses incurred                        or to be incurred under the arrangements made under section 2 of the Employment and Training Act 1973 or section 2(3) of the                        Enterprise and New Towns (Scotland) Act 1990.                  

(4) A claimant is to be treated as not having limited capability for work where—

(a)it has previously been determined, within the six months preceding the date of claim for employment and support allowance,                        on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013, that the claimant does not have limited                        capability for work; and                  

(b)it appears to the Secretary of State that—                  

(i)the determination was not based on ignorance of, or mistake as to, a material fact; and                  

(ii)there has been no relevant change of circumstances in relation to the claimant's physical or mental condition since the determination.                  

### Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidenceE+W+S

28.—(1) Where the Secretary of State is satisfied that it is appropriate in the circumstances of the case, a claimant may be treated                     as not having limited capability for work if—                  

(a)the claimant has supplied medical evidence;                  

(b)the period for which medical evidence was supplied has ended;                  

(c)the Secretary of State has requested further medical evidence; and                  

(d)the claimant has not, before whichever is the later of either the end of the period of six weeks beginning with the date of                        the Secretary of State's request or the end of six weeks beginning with the day after the end of the period for which medical                        evidence was supplied—                  

(i)supplied further medical evidence; or                  

(ii)otherwise made contact with the Secretary of State to indicate that they wish to have the question of limited capability for                        work determined.                  

(2) In this regulation “medical evidence” means evidence provided under regulation 2 or 5 of the Medical Evidence Regulations.                  

### Additional circumstances where claimants are to be treated as having limited capability for workE+W+S

29.  For the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act, a claimant is to be treated as having limited capability                     for work on any day in respect of which that claimant is entitled to statutory sick pay.                  

## **PART 5**E+W+SLimited Capability for Work-related Activity

### Determination of limited capability for work-related activityE+W+S

30.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant's physical or mental condition, at least one of the                     descriptors set out in Schedule 3 applies to the claimant, the claimant has limited capability for work-related activity and                     the limitation must be such that it is not reasonable to require that claimant to undertake such activity.                  

(2) A descriptor applies to a claimant if that descriptor applies to the claimant for the majority of the time or, as the case                     may be, on the majority of the occasions on which the claimant undertakes or attempts to undertake the activity described                     by that descriptor.                  

(3) In determining whether a descriptor applies to a claimant, the claimant is to be assessed as if—

(a)the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or,                        as the case may be                  

(b)wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.                  

(4) Where a determination has been made about whether a claimant—

(a)has limited capability for work-related activity;                  

(b)is to be treated as having limited capability for work-related activity; or                  

(c)is to be treated as not having limited capability for work-related activity,                  

the Secretary of State may, if paragraph (5) applies, determine afresh whether the claimant has or is to be treated as having                     limited capability for work-related activity.                  

(5) This paragraph applies where—

(a)the Secretary of State wishes to determine whether there has been a relevant change of circumstances in relation to the claimant's                        physical or mental condition;                  

(b)the Secretary of State wishes to determine whether the previous determination about limited capability for work-related activity                        or about treating the claimant as having or as not having limited capability for work-related activity, was made in ignorance                        of, or was based on a mistake as to, some material fact; or                  

(c)at least three months have passed since the date of the previous determination about limited capability for work-related activity                        or about treating the claimant as having or as not having limited capability for work-related activity.                  

(6) In assessing the extent of a claimant's capability to perform any activity listed in Schedule 3, it is a condition that the                     claimant's incapability to perform the activity arises—                  

(a)in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—                  

(i)from a specific bodily disease or disablement; or                  

(ii)as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement;                        or                  

(b)in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—                  

(i)from a specific mental illness or disablement; or                  

(ii)as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.                  

### Certain claimants to be treated as having, or not having, limited capability for work-related activityE+W+S

31.—(1) A claimant is to be treated as having limited capability for work-related activity if—                  

(a)the claimant is terminally ill;                  

(b)the claimant is—                  

(i)receiving treatment for cancer by way of chemotherapy or radiotherapy;                  

(ii)likely to receive such treatment within six months after the date of the determination of capability for work-related activity;                        or                  

(iii)recovering from such treatment,                  

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work-related                     activity;                  

(c)in the case of a woman, she is pregnant and there is a serious risk of damage to her health or to the health of her unborn                        child if she does not refrain from work-related activity; or                  

(d)the claimant is entitled to universal credit and it has previously been determined that the claimant has limited capability                        for work and work-related activity on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013.                  

(2) A claimant who does not have limited capability for work-related activity as determined in accordance with regulation 30(1)                     is to be treated as having limited capability for work-related activity if—                  

(a)the claimant suffers from some specific disease or bodily or mental disablement; and                  

(b)by reason of such disease or disablement, there would be a substantial risk to the mental or physical health of any person                        if the claimant were found not to have limited capability for work-related activity.                  

(3) A claimant is to be treated as not having limited capability for work-related activity where—

(a)it has previously been determined, within the six months preceding the date of claim for employment and support allowance,                        on the basis of an assessment under Part 5 of the Universal Credit Regulations 2013, that the claimant does not have limited                        capability for work and work-related activity; and                  

(b)it appears to the Secretary of State that—                  

(i)the determination was not based on ignorance of, or mistake as to, a material fact; and                  

(ii)there has been no relevant change of circumstances in relation to the claimant's physical or mental condition.                  

### Relevant linked cases – limited capability for work-related activityE+W+S

32.  A claimant is to be treated as having limited capability for work-related activity where—                  

(a)they fall within case 1, as defined in regulation 7(3)(a); and                  

(b)in respect of the earlier period of limited capability for work referred to in regulation 7(3)(a)(i), they had been entitled                        to a support component under section 2(2) of the Act.                  

### Information required for determining capability for work-related activityE+W+S

33.—(1) Subject to paragraph (2), the information or evidence required to determine whether a claimant has limited capability for                     work-related activity is—                  

(a)any information relating to the descriptors set out in Schedule 3 as may be requested in the form of a questionnaire; and                  

(b)any such additional information as may be requested.                  

(2) Where the Secretary of State is satisfied that there is sufficient information to determine whether a claimant has limited                     capability for work-related activity without the information specified in paragraph (1)(a), that information must not be required                     for the purposes of making the determination.                  

### Failure to provide information in relation to work-related activityE+W+S

34.—(1) Where a claimant fails without good cause to comply with the request referred to in regulation 33(1)(a), the claimant is,                     subject to paragraph (2), to be treated as not having limited capability for work-related activity.                  

(2) Paragraph (1) does not apply unless—

(a)the claimant was sent a further request at least three weeks after the date of the first request; and                  

(b)at least one week has passed since the further request was sent.                  

### Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related                     activityE+W+S

35.—(1) Where it falls to be determined whether a claimant has limited capability for work-related activity, that claimant may be                     called by or on behalf of a health care professional approved by the Secretary of State to attend for a medical examination.                  

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned                     in paragraph (1), the claimant is to be treated as not having limited capability for work-related activity.                  

(3) Paragraph (2) does not apply unless—

(a)written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or                  

(b)the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.                  

### Matters to be taken into account in determining good cause in relation to regulations 34 or 35E+W+S

36.  The matters to be taken into account in determining whether a claimant has good cause under regulation 34 (failure to provide                     information in relation to work-related activity) or 35 (failure to attend a medical examination to determine limited capability                     for work-related activity) include—                  

(a)whether the claimant was outside Great Britain at the relevant time;                  

(b)the claimant's state of health at the relevant time; and                  

(c)the nature of any disability the claimant has.                  

## **PART 6**E+W+SEffect of work on entitlement to an Employment and Support Allowance

### A claimant who works to be treated as not entitled to an employment and support allowanceE+W+S

37.—(1) Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in                     any week in which that claimant does work.                  

(2) Paragraph (1) does not apply to—

(a)work as a councillor;                  

(b)duties undertaken on either one full day or two half-days a week as a member of the First-tier Tribunal where the member is                        eligible for appointment to be such a member in accordance with article 2(3) of the Qualifications for Appointment of Members                        to the First-tier Tribunal and Upper Tribunal Order 2008 F52;                  

(c)domestic tasks carried out in the claimant's own home or the care of a relative;                  

(d)duties undertaken in caring for another person who is accommodated with the claimant by virtue of arrangements made under                        any of the provisions referred to in paragraph (7) or where the claimant is in receipt of any payment specified in that paragraph;                  

(e)any activity the claimant undertakes during an emergency to protect another person or to prevent serious damage to property                        or livestock; or                  

(f)any of the categories of work set out in regulation 39(1) (exempt work).                  

(3) This regulation is subject to regulation 40 (effect of work on entitlement to an employment and support allowance where claimant                     is receiving certain treatment).                  

(4) A claimant who does work to which this regulation applies in a week which is—

(a)the week in which the claimant first becomes entitled to a benefit, allowance or advantage on account of the claimant's limited                        capability for work in any period; or                  

(b)the last week in any period in which the claimant has limited capability for work or is treated as having limited capability                        for work,                  

is to be treated as not entitled to an employment and support allowance by virtue of paragraph (1) only on the actual day                     or days in that week on which the claimant does that work.                  

(5) Regulation 86 (linking rules) does not apply for the purposes of calculating the beginning or end of any period of limited                     capability for work under paragraph (4).                  

(6) The day or days in a week on which a night worker works, for the purposes of paragraph (4), are to be calculated by reference                     to regulation 24 (night workers).                  

(7) The payments and provisions mentioned in paragraph (2)(d) are—

(a)any payment made to the claimant with whom a person is accommodated by virtue of arrangements made—                  

(i)by a local authority under section 22C(2), (3), (5) or (6)(a) or (b) of the Children Act 1989 (provision of accommodation                        and maintenance for a child whom the local authority is looking after) F53;                  

(ii)by a local authority under section 26 of the Children (Scotland) Act 1995 (manner of provision of accommodation to child looked                        after by local authority) F54;                  

(iii)by a local authority under regulations 33 or 51 of the Looked After Children (Scotland) Regulations 2009 (fostering and kinship                        care allowances and fostering allowances) F55; or                  

(iv)by a voluntary organisation under section 59(1)(a) of the 1989 Act (provision of accommodation by voluntary organisations)                        F56;                  

(b)any payment made to the claimant or the claimant's partner for a person (“the person concerned”), who is not normally a member of the claimant's household but is temporarily in the claimant's care, by—                  

(i)the National Health Service Commissioning Board F57;                  

(ii)a local authority but excluding payments of housing benefit made in respect of the person concerned;                  

(iii)a voluntary organisation;                  

(iv)the person concerned pursuant to section 26(3A) of the National Assistance Act 1948 F58;                  

(v)a clinical commissioning group established under section 14D of the Health Service Act F59; or                  

(vi)a Local Health Board established by an order made under section 11 of the Health Service (Wales) Act.                  

(8) In this regulation—

“week” means a week in respect of which a claimant is entitled to an employment and support allowance;                  

“work” means any work which a claimant does, whether or not that claimant undertakes it in expectation of payment;                  

“work as a councillor” includes any work which a claimant undertakes as a member of any of the bodies referred to in section 177(1) of the Local                     Government Act 1972 or section 49(1) or (1A) of the Local Government (Scotland) Act 1973 F60, of which the claimant is a member by reason of being a councillor.                  

F52S.I. 2008/2692. Article 2(3) was amended by S.I. 2009/1592.

F531989 c.41. Section 22C was inserted by section 8(1) of the Children and Young Persons Act 2008 (c.23).

F541995 c.36. Section 26 was amended by Schedule 3 to the Adoption and Children (Scotland) Act 2007 (asp 4) and paragraph 9 of Schedule 1 to the Children and Young Persons Act 2008.

F55S.I. 2009/210. Regulation 33 was amended by S.S.I. 2009/290.

F56Section 59(1)(a) was amended by section 49 of the Children Act 2004 (c.31).

F57The National Health Service Commissioning Board is established by section 1H of the National Health Service Act 2006 (c.41), as inserted by section 9 of the Health and Social Care Act 2012 (c.7).

F581948 c.29. Section 26(3A) was inserted by section 42 of the National Health Service and Community Care Act 1990 (c.19).

F59Section 14D was inserted by section 25 of the Health and Social Care Act 2012.

F601973 c.65. Section 49(1) was amended by Schedule 7 to the Local Government (Scotland) Act 1975 (c.30) and S.S.I. 2007/265. Section 49(1A) was inserted by paragraph 46 of Schedule 6 to the Local Government (Scotland) Act 1975.

### Claimants who are treated as not entitled to any allowance at all by reason of regulation 37(1) are to be treated as not having                     limited capability for workE+W+S

38.—(1) Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 37(1), the claimant                     is to be treated as not having limited capability for work.                  

(2) Paragraph (1) applies even if—

(a)it has been determined that the claimant has or is to be treated as having, under any of regulations 16 (certain claimants                        to be treated as having limited capability for work), 21 (hospital in-patients), 22 (claimants undergoing certain treatment)                        and 25 (exceptional circumstances), limited capability for work; or                  

(b)the claimant meets the conditions set out in regulation 26(2) for being treated as having limited capability for work until                        a determination is made in accordance with the limited capability for work assessment.                  

### Exempt workE+W+S

39.—(1) The categories of work referred to in regulation 37(2)(f) are—                  

(a)work for which the total earnings in any week does not exceed £20;                  

(b)work for which the total earnings in any week does not exceed 16 multiplied by the National Minimum Wage, subject to paragraph                        (4), and which—                  

(i)is part of the claimant's treatment programme and is done under medical supervision while the claimant is an in-patient, or                        is regularly attending as an out-patient, of a hospital or similar institution; or                  

(ii)is supervised by a person employed by a public or local authority or by a voluntary organisation or community interest company                        engaged in the provision or procurement of work for persons who have disabilities;                  

(c)work which is done for less than 16 hours a week, for which total earnings in any week does not exceed 16 multiplied by the                        National Minimum Wage, subject to paragraph (4), and which is done—                  

(i)during a work period, provided that paragraph (7) applies; or                  

(ii)by a claimant who has or is treated as having limited capability for work-related activity;                  

(d)work done in the course of receiving assistance in pursuing self-employed earner's employment whilst participating in a programme                        provided, or in other arrangements made, under section 2 of the Employment and Training Act 1973 (functions of the Secretary                        of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 (functions in relation to training for employment                        etc);                  

(e)work done where the claimant receives no payment of earnings and where the claimant is—                  

(i)engaged by a charity or voluntary organisation; or                  

(ii)a volunteer,                  

and where the Secretary of State is satisfied in either of those cases that it is reasonable for the claimant to do the work                     free of charge;                  

(f)work done in the course of participating in a work placement approved in writing by the Secretary of State before the placement                        starts.                  

(2) The number of hours for which a claimant is engaged in work is to be determined—

(a)where no recognisable cycle has been established in respect of a claimant's work, by reference to the number of hours or,                        where those hours are likely to fluctuate, the average of the hours, which the claimant is expected to work in a week;                  

(b)where the number of hours for which the claimant is engaged fluctuate, by reference to the average of hours worked over—                  

(i)if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in                        which the claimant does no work, those periods but disregarding any other absences);                  

(ii)in any other case, the period of five weeks immediately before the date of claim or the date on which a superseding decision                        is made under section 10 of the Social Security Act 1998 (decisions superseding earlier decisions) F61, or such other length of time as may, in the particular case, enable the claimant's average hours of work to be determined                        more accurately.                  

(3) For the purposes of determining the number of hours for which a claimant is engaged in work, that number is to include any                     time allowed to that claimant by the claimant's employer for a meal or for refreshment, but only where that claimant is, or                     expects to be, paid earnings in respect of that time.                  

(4) Where the amount determined by the calculation in paragraph (1)(b) or (c) would, but for this paragraph, include an amount                     of—                  

(a)less than 50p, that amount is to be rounded up to the nearest 50p; or                  

(b)less than £1 but more than 50p, that amount is to be rounded up to the nearest £1.                  

(5) Part 10 applies for the purposes of calculating any income which consists of earnings under this regulation.

(6) In this regulation—

“relevant benefit” means—                  

an employment and support allowance; or

credits under regulations made under section 22(5) of the Contributions and Benefits Act F62,                           

in respect of which the question of the claimant's limited capability for work arises under the Act;

“volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to                     be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection                     with that work;                  

“work period” means a period which begins on the first day on which any work referred to in paragraph (1)(c) is undertaken and continues                     for a period of 52 weeks, whether or not any further work referred to in paragraph (1)(c) is undertaken during that period;                  

“work placement” means practical work experience with an employer, which is neither paid nor undertaken in expectation of payment.                  

(7) This paragraph applies where—

(a)the claimant has not previously done any work under paragraph (1)(c);                  

(b)since the beginning of the last work period, the claimant has ceased to be entitled to a relevant benefit for a continuous                        period exceeding 12 weeks; or                  

(c)not less than 52 weeks have elapsed since the last work period.                  

F611998 c.14. Section 10 was amended by paragraph 23 of Schedule 7 to the Social Security Contributions (Transfer of Functions, etc) Act 1999 (c.2) and paragraph 4 of Schedule 12, and Schedule 14, to the Welfare Reform Act 2012 and S.I. 2008/2833.

F62Section 22(5) was amended by paragraph 22 of Schedule 2 to the Jobseekers Act 1995 (c.18), **paragraph 9** of Schedule 3 to the Welfare Reform Act 2007 (c.5) and paragraph 2 of Schedule 3, and Schedule 14, to the Welfare Reform Act 2012.

### Effect of work on entitlement to an employment and support allowance where claimant is receiving certain treatmentE+W+S

40.  Where a claimant who is entitled to an employment and support allowance and is treated as having limited capability for work                     by virtue of regulation 22 works on any day during a week when the claimant is receiving certain treatment mentioned in regulation                     22 or recovering from that treatment, that work is to have no effect on the claimant's entitlement to the employment and support                     allowance.                  

## **PART 7**E+W+SClaimant responsibilities

### InterpretationE+W+S

41.—(1) In this Part—                  

“responsible carer”, in relation to a child, means—                  

a person who is the only person responsible for the child; or

a person who is a member of a couple where—

both members of the couple are responsible for the child; and

the person has been nominated by the couple jointly as responsible for the child;

“responsible foster parent”, in relation to a child, means—                  

a person who is the only foster parent in relation to the child; or

a person who is a member of a couple where—

both members of the couple are foster parents in relation to the child; and

the person has been nominated by the couple jointly as the responsible foster parent.

(2) The nomination of a responsible carer or responsible foster parent for the purposes of paragraph (1) may be changed—

(a)once in a 12 month period, beginning with the date of the previous nomination; or                  

(b)on any occasion where the Secretary of State considers that there has been a change of circumstances which is relevant to                        the nomination.                  

(3) Only one person may be nominated as a responsible carer or a responsible foster parent.

(4) The nomination applies to all of the children for whom the claimant is responsible.

### Application of regulations where there is dual entitlementE+W+S

42.—(1) This regulation applies where a person is entitled to universal credit and an employment and support allowance.                  

(2) The work-related requirements under sections 11B to 11I of the Act F63 and regulations 46 to 49 of these Regulations do not apply to such a person.                  

(3) Reductions relating to the award of an employment and support allowance under section 11J of the Act F64 and regulations 50 to 60 of these Regulations do not apply to such a person.                  

F63Sections 11B to 11I were inserted by section 57 of the Welfare Reform Act 2012.

F64Section 11J was inserted by section 57 of the Welfare Reform Act 2012.

### Sanction ceases to apply to employment and support allowanceE+W+S

43.—(1) This regulation applies where—                  

(a)a person is entitled to an employment and support allowance;                  

(b)there is a reduction relating to the award of the employment and support allowance under section 11J of the Act;                  

(c)the person becomes entitled to universal credit; and                  

(d)the person remains entitled to an employment and support allowance.                  

(2) Any reduction relating to the award of the employment and support allowance is to cease being applied to the award of the                     employment and support allowance.                  

### Claimant commitment – date and method of acceptanceE+W+S

44.—(1) For the purposes of section 1(3)(aa) of the Act F65, a claimant who has accepted a claimant commitment within such period after making a claim for an employment and support                     allowance as the Secretary of State specifies is to be treated as having accepted that claimant commitment on the first day                     of the period in respect of which the claim is made.                  

(2) In a case where an award of an employment and support allowance may be made without a claim, a claimant who accepts a claimant                     commitment within such period as the Secretary of State specifies is to be treated as having accepted a claimant commitment                     on the day that would be the first day of the first benefit week in relation to the award.                  

(3) The Secretary of State may extend the period within which a claimant is required to accept a claimant commitment or an updated                     claimant commitment where the claimant requests an extension and the Secretary of State considers that the request is reasonable.                  

(4) A claimant must accept a claimant commitment by one of the following methods, as specified by the Secretary of State—

(a)electronically;                  

(b)by telephone; or                  

(c)in writing.                  

F65Section 1(3)(aa) was inserted by section 54 of the Welfare Reform Act 2012.

### Claimant commitment – exceptionsE+W+S

45.  A claimant may be entitled to an employment and support allowance without having accepted a claimant commitment if the Secretary                     of State considers that—                  

(a)the claimant cannot accept a claimant commitment because they lack capacity to do so; or                  

(b)there are exceptional circumstances in which it would be unreasonable to expect the person to accept a claimant commitment.                  

### Purposes of a work-focused interviewE+W+S

46.  The purposes of a work-focused interview are any or all of the following—                  

(a)assessing the claimant's prospects for remaining in or obtaining work;                  

(b)assisting or encouraging the claimant to remain in or obtain work;                  

(c)identifying activities that the claimant may undertake that will make remaining in or obtaining work more likely;                  

(d)identifying training, educational or rehabilitation opportunities for the claimant which may make it more likely that the                        claimant will remain in or obtain work or be able to do so;                  

(e)identifying current or future work opportunities for the claimant that are relevant to the claimant's needs and abilities.                  

### Claimants subject to no work-related requirementsE+W+S

47.—(1) A claimant falls within section 11D of the Act (persons subject to no work-related requirements) if they are a claimant who—                  

(a)has caring responsibilities for one or more severely disabled persons for at least 35 hours a week but does not meet the conditions                        of entitlement to a carer's allowance;                  

(b)is the responsible foster parent of a child under the age of one;                  

(c)is an adopter and it is 52 weeks or less since—                  

(i)the date on which the child was placed with the claimant; or                  

(ii)if the claimant requested that the 52 weeks should run from a date within 14 days before the child was expected to be placed,                        that date;                  

(d)has been enrolled on, been accepted for or is undertaking, a full-time course of study or training which is not a course of                        advanced education and—                  

(i)is under the age of 21, or is 21 and reached that age whilst undertaking the course; and                  

(ii)is without parental support;                  

(e)is entitled to an employment and support allowance which is payable at a nil rate;                  

(f)is pregnant and it is 11 weeks or less before her expected week of confinement; or                  

(g)was pregnant and it is 15 weeks or less since the date of her confinement.                  

(2) Subject to paragraph (3), for the purposes of section 11D of the Act, a person has regular and substantial caring responsibilities                     for a severely disabled person if the person—                  

(a)satisfies the conditions for entitlement to a carer's allowance; or                  

(b)would satisfy those conditions but for the fact that their earnings have exceeded the limit prescribed for the purposes of                        that allowance.                  

(3) A person does not have regular and substantial caring responsibilities for a severely disabled person if the person derives                     earnings from those caring responsibilities.                  

(4) Paragraph (2) applies whether or not the person has made a claim for a carer's allowance.

(5) In this regulation—

“adopter” means a person who has been matched with a child for adoption and who is, or is intended to be, the responsible carer for                     the child, but excluding a person who is a foster parent or close relative of the child;                  

“matched with a child for adoption” means an adoption agency has decided that the person would be a suitable adoptive parent for the child;                  

“severely disabled” has the meaning in section 70 of the Contributions and Benefits Act F66;                  

“without parental support” means the person is not being looked after by a local authority and—                  

has no parent (in this definition, “parent” includes any person acting in the place of a parent);                           

cannot live with their parents because the person is estranged from them or there is a serious risk—

to the person's physical or mental health; or

that the person would suffer significant harm if the person lived with them; or

is living away from their parents, and neither parent is able to support the person financially because that parent—

has a physical or mental impairment;

is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

is prohibited from entering or re-entering Great Britain.

F66Section 70 was amended by S.I.s 1994/2556, 2002/1457 and 2011/2426.

### Claimants subject to work-focused interview requirement onlyE+W+S

48.—(1) For the purposes of section 11E(1)(a) of the Act (claimant is the responsible carer for a child aged at least one and under                     a prescribed age) the prescribed age is five.                  

(2) A claimant falls within section 11E of the Act (claimants subject to work-focused interview requirement only) if—

(a)the claimant is the responsible foster parent in relation to a child aged at least one;                  

(b)the claimant is the responsible foster parent in relation to a qualifying young person and the Secretary of State is satisfied                        that the qualifying young person has care needs which would make it unreasonable to require the claimant to comply with a                        work preparation requirement;                  

(c)the claimant is a foster parent, but not the responsible foster parent, in relation to a child or qualifying young person                        and the Secretary of State is satisfied that the child or qualifying young person has care needs which would make it unreasonable                        to require the claimant to comply with a work preparation requirement;                  

(d)the claimant is a foster parent who—                  

(i)does not have a child or qualifying young person placed with them, but intends to; and                  

(ii)fell within sub-paragraph (a) within the past eight weeks; or                  

(e)the claimant has become a friend or family carer in relation to a child within the past 12 months and is also the responsible                        carer in relation to that child.                  

(3) In paragraph (2)(e), “friend or family carer” means a person who is responsible for a child, but is not the child's parent or step-parent, and has undertaken the care                     of the child in the following circumstances—                  

(a)the child has no parent or has parents who are unable to care for the child; or                  

(b)it is likely that the child would otherwise be looked after by a local authority because of concerns in relation to the child's                        welfare.                  

### Victims of domestic violenceE+W+S

49.—(1) Where a claimant has recently been a victim of domestic violence and the circumstances set out in paragraph (3) apply—                  

(a)a requirement imposed on that claimant under sections 11 to 11G of the Act F67 ceases to have effect for a period of 13 consecutive weeks starting on the date of the notification referred to in paragraph                        (3)(a); and                  

(b)the Secretary of State must not impose any other such requirement on that claimant during that period.                  

(2) A person has recently been a victim of domestic violence if a period of six months has not expired since the violence was                     inflicted or threatened.                  

(3) The circumstances are that—

(a)the claimant notifies the Secretary of State, in such manner as the Secretary of State specifies, that domestic violence has                        been inflicted on or threatened against the claimant by a person specified in paragraph (4) during the period of six months                        ending on the date of the notification;                  

(b)this regulation has not applied to the claimant for a period of 12 months before the date of the notification;                  

(c)on the date of the notification the claimant is not living at the same address as the person who inflicted or threatened the                        domestic violence; and                  

(d)as soon as possible, and no later than one month, after the date of the notification the claimant provides evidence from a                        person acting in an official capacity which demonstrates that—                  

(i)the claimant's circumstances are consistent with those of a person who has had domestic violence inflicted on or threatened                        against them during the period of six months ending on the date of the notification; and                  

(ii)the claimant has made contact with the person acting in an official capacity in relation to such an incident, which occurred                        during that period.                  

(4) A person is specified in this paragraph if the person is—

(a)where the claimant is, or was, a member of a couple, the other member of the couple;                  

(b)the claimant's grandparent, grandchild, parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son,                        step-daughter, brother, step-brother, brother-in-law, sister, step-sister or sister-in-law; or                  

(c)where any of the persons listed in sub-paragraph (b) is a member of a couple, the other member of that couple.                  

(5) In this regulation—

“domestic violence” means abuse of a kind specified on page 11 of section 2.2 of ‘Responding to domestic abuse: a handbook for health professionals’                     published by the Department of Health in December 2005 F68;                  

“person acting in an official capacity” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service                     Reform and Health Care Professions Act 2002 F69, a police officer, a registered social worker, the claimant's employer, a representative of the claimant's trade union or                     any public, voluntary or charitable body which has had direct contact with the claimant in connection with domestic violence;                  

“registered social worker” means a person registered as a social worker in a register maintained by—                  

the General Social Care Council;

the Care Council for Wales;

the Scottish Social Services Council; or

the Northern Ireland Social Care Council.

F67Sections 11 to 11G were inserted by section 57 of the Welfare Reform Act 2012.

F68The handbook is available on the Department of Health website www.dh.gov.uk at /en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4126161                              and from Department of Health Publications, PO Box 777, London SE1 6XH.

F692002 c.17. Section 25(3) was amended by paragraph 17 of Schedule 10 to the Health and Social Care Act 2008 (c.14) and paragraph 56 of Schedule 15 to the Health and Social Care Act 2012 (c.7) and S.I. 2010/231.

## **PART 8**E+W+SSanctions

### InterpretationE+W+S

50.  For the purposes of this Part—                  

“JSA sanctionable failure” means a failure by a claimant which is sanctionable under section 6K of the Jobseekers Act 1995;                  

“low-level sanction” means a reduction of an employment and support allowance in accordance with section 11J of the Act for a sanctionable failure                     by the claimant to comply with—                  

a work-focused interview requirement imposed under section 11F(2) of the Act (persons subject to work preparation requirement                              and work-focused interview requirement);                           

a work preparation requirement imposed under section 11F(2) of the Act; or

a requirement under section 11G of the Act (connected requirements);

“lowest-level sanction” means a reduction of an employment and support allowance in accordance with section 11J of the Act for a sanctionable failure                     by the claimant to comply with a requirement imposed under section 11E(2) of the Act (persons subject to work-focused interview                     requirement only);                  

“reduction period” means the number of days for which a reduction in the amount of an award of an employment and support allowance is to have                     effect;                  

“sanctionable failure” means a failure which is sanctionable under section 11J of the Act;                  

“total outstanding reduction period” means the total number of days for which no reduction has yet been applied for all of the claimant's low-level sanctions,                     lowest-level sanctions and reductions to which regulation 61 applies;                  

“UC sanctionable failure” means a failure by a claimant which is sanctionable under section 26 or 27 of the Welfare Reform Act 2012.                  

### General principles for calculating reduction periodsE+W+S

51.—(1) Subject to paragraphs (3) and (4), the reduction period is to be determined in relation to each sanctionable failure in accordance                     with regulations 52 and 53.                  

(2) Reduction periods are to run consecutively.

(3) Where the reduction period calculated in relation to a sanctionable failure in accordance with regulation 52 or 53 would result                     in the total outstanding reduction period exceeding 1095 days, the number of days in the reduction period in relation to that                     failure is to be adjusted so that 1095 days is not exceeded.                  

(4) In determining the reduction period in relation to a sanctionable failure, a previous sanctionable failure, UC sanctionable                     failure or JSA sanctionable failure is to be disregarded if it—                  

(a)occurred in the 14 days immediately preceding the failure in question; and                  

(b)gave rise to a reduction under these Regulations, the Universal Credit Regulations 2013 or the Jobseeker's Allowance Regulations                        2013 F70.                  

F70S.I. 2013/378.

Modifications etc. (not altering text)

C2Reg. 51 modified (24.4.2013) by The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement                              No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013 (S.I. 2013/983), {art. 14(4)} (with application in accordance with art. 14(1)-(3))

C3Reg. 51 modified (24.4.2013) by The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement                              No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013 (S.I. 2013/983), {art. 15(4)} (with application in accordance with art. 15(1)-(3))

### Low-level sanctionE+W+S

52.  The reduction period for a low-level sanction is the total of—                  

(a)the number of days beginning with the date of the sanctionable failure and ending with—                  

(i)the day before the date on which the claimant meets a compliance condition specified by the Secretary of State;                  

(ii)the day before the date on which the claimant falls within section 11D of the Act;                  

(iii)the day before the date on which the claimant is no longer required to take a particular action specified as a work preparation                        requirement by the Secretary of State under section 11C(1) or 11F(2) of the Act; or                  

(iv)the day on which the award of an employment and support allowance is terminated,                  

whichever is soonest; and

(b)whichever of the following number of days is applicable in the claimant's case—                  

(i)seven days, if sub-paragraphs (ii) and (iii) do not apply;                  

(ii)14 days, if in the 365 days preceding the failure in question there was another sanctionable failure giving rise to a low-level                        sanction for which a seven day reduction period applies;                  

(iii)14 days, if in the 365 days preceding the failure in question there was a UC sanctionable failure giving rise to a low-level                        sanction under regulation 104 of the Universal Credit Regulations 2013 for which a seven day reduction period applies;                  

(iv)14 days, if in the 365 days preceding the failure in question there was a JSA sanctionable failure giving rise to a low-level                        sanction under regulation 21 of the Jobseeker's Allowance Regulations 2013 for which a seven day reduction period applies;                  

(v)28 days, if in the 365 days preceding the failure in question there was another sanctionable failure giving rise to a low-level                        sanction for which a 14 day or 28 day reduction period applies;                  

(vi)28 days, if in the 365 days preceding the failure in question there was a UC sanctionable failure giving rise to a low-level                        sanction under regulation 104 of the Universal Credit Regulations 2013 for which a 14 day or 28 day reduction period applies;                        or                  

(vii)28 days, if in the 365 days preceding the failure in question there was a JSA sanctionable failure giving rise to a low-level                        sanction under regulation 21 of the Jobseeker's Allowance Regulations 2013 for which a 14 day or 28 day reduction period applies.                  

### Lowest-level sanctionE+W+S

53.  The reduction period for a lowest-level sanction is the number of days beginning with the date of the sanctionable failure                     and ending with—                  

(a)the day before the date on which the claimant meets a compliance condition specified by the Secretary of State;                  

(b)the day before the date on which the claimant falls within section 11D of the Act; or                  

(c)the day on which the claimant's award of an employment and support allowance is terminated,                  

whichever is soonest.

### Start of the reductionE+W+S

54.  A reduction period determined in relation to a sanctionable failure takes effect from—                  

(a)where the claimant has not been paid an employment and support allowance for the benefit week in which the Secretary of State                        determines that the amount of the award of employment and support allowance is to be reduced under section 11J of the Act,                        the first day of that benefit week;                  

(b)where the claimant has been paid an employment and support allowance for the benefit week referred to in paragraph (a), the                        first day of the first benefit week for which the claimant has not been paid an employment and support allowance; or                  

(c)where the amount of the award of the employment and support allowance for the benefit week referred to in paragraph (a) or                        (b) is already subject to a reduction because of a previous sanctionable failure, the first day in respect of which the amount                        of the award is no longer subject to that reduction.                  

### Reduction period to continue where award of employment and support allowance terminatesE+W+S

55.—(1) Where an award of an employment and support allowance terminates while there is an outstanding reduction period—                  

(a)the period continues to run as if a daily reduction were being applied; and                  

(b)if the claimant becomes entitled to a new award of an employment and support allowance before the period expires, that new                        award is subject to a reduction for the remainder of the total outstanding reduction period.                  

(2) Paragraph (3) applies where—

(a)an award of an employment and support allowance terminates before the Secretary of State determines that the amount of the                        award is to be reduced under section 11J of the Act in relation to a sanctionable failure; and                  

(b)that determination is made after the claimant becomes entitled to a new award of an employment and support allowance.                  

(3) Where this paragraph applies—

(a)the reduction period in relation to the sanctionable failure referred to in paragraph (2) is to be treated as having taken                        effect on the day before the previous award terminated;                  

(b)that reduction period is treated as having continued to run as if a daily reduction were being applied; and                  

(c)if the new award referred to in paragraph (2)(b) begins before that reduction period expires, that new award is subject to                        a reduction for the remainder of the total outstanding reduction period.                  

### Suspension of a reduction where a fraud sanction appliesE+W+S

56.—(1) A reduction in the amount of an award of an employment and support allowance in accordance with section 11J of the Act is                     to be suspended for any period during which section 6B or 7 of the Social Security Fraud Act 2001 F71 applies to the award.                  

(2) The reduction ceases to have effect on the day on which that period begins and has effect again on the day after that period                     ends.                  

F712001 c.11. Section 6B was inserted by section 24 of the Welfare Reform Act 2009. Sections 6B was amended by paragraph 10 of Schedule                              2 and Schedule 7 to the Welfare Reform Act 2009 and sections 113, 118, 119 and 121 of, and paragraph 58 of Schedule 2, paragraph                              16 of Schedule 3 and Schedule 14 to, the Welfare Reform Act 2012. Section 7 was amended by paragraph 45 of Schedule 2 to the                              State Pension Credit Act 2002 (c.16), **section 49** of, and paragraph 23 of Schedule 3 to, the Welfare Reform Act 2007, paragraph 11 of Schedule 2, paragraph 2 of Schedule 4                              and Schedule 7 to the Welfare Reform Act 2009, sections 118 and 119 of, and paragraph 59 of Schedule 2, paragraph 17 of Schedule                              3 and Schedule 14 to, the Welfare Reform Act 2012, paragraph 45 of Schedule 2 to the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13) and S.I. 2011/2298.

### Termination of a reductionE+W+S

57.—(1) A reduction in the amount of an award of an employment and support allowance under section 11J of the Act is to be terminated                     where, since the date of the most recent sanctionable failure which gave rise to such a reduction, the claimant has been in                     paid work—                  

(a)for a period of at least 26 weeks; or                  

(b)for more than one period where the total of those periods amounts to at least 26 weeks.                  

(2) The termination of the reduction has effect—

(a)where the date on which paragraph (1) is satisfied falls within a period of entitlement to an employment and support allowance,                        from the beginning of the benefit week in which that date falls; or                  

(b)where that date falls outside a period of entitlement to an employment and support allowance, from the beginning of the first                        benefit week in relation to any subsequent award of an employment and support allowance.                  

(3) The claimant is in paid work for the purposes of paragraph (1) where their weekly earnings are at least equal to 16 multiplied                     by the national minimum wage which would apply for a person of the claimant's age under the National Minimum Wage Regulations                     1999 F72.                  

F72S.I. 1999/584.

### Amount of reduction for each benefit weekE+W+S

58.  Where it has been determined that an award of an employment and support allowance is to be reduced in accordance with section                     11J of the Act, the amount of the reduction for each benefit week in respect of which a reduction has effect is to be calculated                     as follows.                  

#### *Step 1*

Take the number of days—

(a)in the benefit week; or                  

(b)if lower, in the total outstanding reduction period,                  

and deduct any days in that benefit week or total outstanding reduction period for which the reduction is suspended in accordance                     with regulation 56.                  

#### *Step 2*

Multiply the number of days produced by step 1 by the daily reduction rate.

#### *Step 3*

Deduct the amount produced by step 2 from the amount of the award of employment and support allowance for the benefit week.

### Daily reduction rateE+W+S

59.—(1) The daily reduction rate for the purposes of regulation 58 is, unless regulation 60 applies, the amount prescribed for the                     claimant under regulation 62(1) or, where applicable, regulation 63(2), multiplied by 52 and divided by 365.                  

(2) The amount of the daily reduction rate is to be rounded down to the nearest 10 pence.

### Lower daily reduction rateE+W+S

60.—(1) The daily reduction rate is 40% of the rate applicable under regulation 59(1) if, at the end of the benefit week, the claimant                     falls within—                  

(a)section 11E of the Act;                  

(b)section 11D(2)(c) of the Act; or                  

(c)regulation 47(1)(b), (c), (f) or (g).                  

(2) The daily reduction rate is nil if, at the end of the benefit week, the claimant falls within section 11D(2)(a) of the Act.

### Sanctions where universal credit ends and the person is entitled to an employment and support allowanceE+W+S

61.—(1) This regulation applies where—                  

(a)a person ceases to be entitled to universal credit;                  

(b)there is a reduction relating to the person's award of universal credit under section 26 or 27 of the Welfare Reform Act 2012;                        and                  

(c)the person is entitled to an employment and support allowance.                  

(2) Any reduction relating to the award of the universal credit is to be applied to the award of the employment and support allowance.

(3) The period for which the reduction relating to the award of employment and support allowance is to have effect is the number                     of days which apply to the person under regulation 102, 103, 104 or 105 of the Universal Credit Regulations 2013 minus any                     such days which—                  

(a)have already resulted in a reduction in the amount of universal credit; or                  

(b)fall after the date on which the person ceases to be entitled to universal credit and before the date on which the person                        becomes entitled to an employment and support allowance.                  

(4) The daily reduction rate for the reduction relating to the award of employment and support allowance is—

(a)the amount referred to in regulation 60(1) where, on the date the claimant becomes entitled to an employment and support allowance,                        the claimant falls within—                  

(i)section 11E of the Act;                  

(ii)section 11D(2)(c) of the Act; or                  

(iii)regulation 47(1)(b), (c), (f) or (g);                  

(b)zero where the claimant falls within section 11D(2)(a) of the Act; or                  

(c)the amount referred to in regulation 59(1) in all other cases.                  

(5) The amount of the reduction of the claimant's award of an employment and support allowance is the number of days arrived at                     under paragraph (3) multiplied by the daily reduction rate referred to in paragraph (4).                  

## **PART 9**E+W+SAmounts of Allowance

### Prescribed amountsE+W+S

62.—(1) Subject to regulation 63 (special cases) the amount prescribed for the purposes of the calculation of the amount of a claimant's                     employment and support allowance under section 2(1)(a) of the Act is—                  

(a)where the claimant satisfies the conditions set out in section 2(2) or (3) of the Act, £71.70; or                  

(b)where the claimant does not satisfy the conditions set out in section 2(2) or (3) of the Act—                  

(i)where the claimant is aged not less than 25, £71.70; or                  

(ii)where the claimant is aged less than 25, £56.80.                  

(2) Subject to regulation 63, the amount of—

(a)the work-related activity component is £28.45; and                  

(b)the support component is £34.80.                  

### Special casesE+W+S

63.—(1) The amount prescribed for the purposes of the calculation of the amount of a claimant's employment and support allowance under                     section 2(1)(a) of the Act in respect of a claimant who—                  

(a)satisfies either of the conditions in paragraphs (3) or (4); or                  

(b)has been a patient for a continuous period of more than 52 weeks,                  

is the amount applicable under regulation 62(1) and the amount of nil under regulation 62(2).

(2) The amount prescribed for those purposes in respect of a claimant who is a person in hardship, is the amount to which the                     claimant is entitled—                  

(a)under regulation 62(1) reduced by 20%; and                  

(b)under regulation 62(2).                  

(3) The first condition mentioned in paragraph (1)(a) is that—

(a)the claimant is being detained under section 45A or 47 of the Mental Health Act 1983 (power of higher courts to direct hospital                        admission; removal to hospital of persons serving sentences of imprisonment etc) F73; and                  

(b)in any case where there is in relation to the claimant a release date within the meaning of section 50(3) of that Act F74, the claimant is being detained on or before the day which the Secretary of State certifies to be that release date.                  

(4) The second condition mentioned in paragraph (1)(a) is that the claimant is being detained under—

(a)section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction) F75; or                  

(b)section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder)                        F76.                  

(5) In this regulation—

“patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation                     2(4) and (5) of the Social Security (Hospital In-Patients) Regulations 2005 F77;                  

“prisoner” means a person who—                  

is detained in custody pending trial or sentence on conviction or under a sentence imposed by a court; or

is on temporary release in accordance with the provisions of the Prison Act 1952 F78 or the Prisons (Scotland) Act 1989 F79,                           

other than a person who is detained in hospital under the provisions of the Mental Health Act 1983 or, in Scotland, under                     the provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Criminal Procedure (Scotland) Act 1995                     F80.                  

(6) For the purposes of this regulation—

(a)except where sub-paragraph (b) applies, a person is a “person in hardship” if they satisfy regulation 94; and                  

(b)where a person satisfies regulation 94 for more than six weeks, they are a “person in hardship” only for the first six weeks.                  

F731983 c.20. Section 45A was inserted by section 46 of the Crime (Sentences) Act 1997 (c.43). Section 45A was amended by paragraph 39 of Schedule 37 to the Criminal Justice Act 2003 (c.44) and sections 4 and 10 of, and paragraph 9 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007 (c.12). Section 47 was amended by section 4 of, and paragraph 10 of Schedule 1 and Schedule 11 to, the Mental Health Act 2007, paragraphs                              97 and 98 of Schedule 16 to the Armed Forces Act 2006 (c.52), **paragraph 18** of Schedule 10 to the Domestic Violence, Crime and Victims Act 2004 (c.28) and Schedule 6 to the Crime (Sentences) Act 1997. S.I. 1999/672 transferred functions under sections 45A and 47 to the National Assembly for Wales.

F74Section 50(3) was substituted by section 294 of the Criminal Justice Act 2003.

F751995 c.46. Section 59A was inserted by section 6(1) of the Crime and Punishment (Scotland) Act 1997 (c.48) and substituted by paragraph 8(6) of Schedule 4 to the Mental Health (Care and Treatment) (Scotland) Act 2003 (asp 13).

F762003 asp 13.

F77S.I. 2005/3360.

F781952 c.52.

F791989 c.45.

F801995 c.46.

### Permanent health insuranceE+W+S

64.  For the purposes of sections 2(1)(c) and 3(3) of the Act (deductions from an employment and support allowance) “pension payment”                     is to include a permanent health insurance payment.                  

### Financial Assistance SchemeE+W+S

65.—(1) For the purposes of sections 2(1)(c) and 3(3) of the Act (deductions from an employment and support allowance) “pension payment”                     is to include a Financial Assistance Scheme payment.                  

(2) In this regulation “Financial Assistance Scheme payment” means a payment made under the Financial Assistance Scheme Regulations 2005 F81.                  

F81S.I. 2005/1986.

### Councillor's allowanceE+W+S

66.  For the purposes of section 3(1)(c) of the Act—                  

(a)a councillor's allowance is a payment of a prescribed description; and                  

(b)the prescribed bodies carrying out public or local functions are—                  

(i)in relation to England and Wales, a London borough council, a county council, a county borough council, a district council,                        a parish or community council, the Common Council of the City of London or the Council of the Isles of Scilly; and                  

(ii)in relation to Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994.                  

### Deductions for pension payment and PPF paymentE+W+S

67.—(1) Where—                  

(a)a claimant is entitled to an employment and support allowance in respect of any period of a week or part of a week;                  

(b)there is—                  

(i)a pension payment;                  

(ii)a PPF periodic payment; or                  

(iii)both of the payments specified in paragraphs (i) and (ii),                  

payable to that person in respect of that period (or a period which forms part of that period or includes that period or part                     of it); and                  

(c)the amount of the payment, or payments when taken together, exceeds—                  

(i)if the period in question is a week, £85; or                  

(ii)if that period is not a week, such proportion of £85 as falls to be calculated in accordance with regulation 79(1) or (5)                        (calculation of weekly amount of income),                  

the amount of that allowance is to be reduced by an amount equal to 50% of the excess.

(2) For the purposes of regulations 67 to 72 “payment” means a payment or payments, as the case may be, referred to in paragraph (1)(b).                  

### Payments treated as not being payments to which section 3 appliesE+W+S

68.  The following payments are to be treated as not being payments to which section 3 of the Act applies—                  

(a)any pension payment made to a claimant as a beneficiary on the death of a member of any pension scheme;                  

(b)any PPF periodic payment made to a claimant as a beneficiary on the death of a person entitled to such a payment;                  

(c)where a pension scheme is in deficit or has insufficient resources to meet the full pension payment, the extent of the shortfall;                  

(d)any pension payment made under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003                        F82;                  

(e)any guaranteed income payment (which means a payment made under article 15(1)(a) or 29(1)(a) of the Armed Forces and Reserved                        Forces (Compensation Schemes) Order 2011 F83);                  

(f)any permanent health insurance payment in respect of which the employee had contributed to the premium to the extent of more                        than 50%.                  

F822003 c.1. Section 639(2) was inserted by section 19 of the Finance Act 2005 (c.7).

F83S.I. 2011/571.

### Deductions for councillor's allowanceE+W+S

69.—(1) Where the net amount of councillor's allowance to which a claimant is entitled in respect of any week exceeds 16 multiplied                     by the National Minimum Wage, subject to paragraph (3), an amount equal to the excess is to be deducted from the amount of                     an employment and support allowance to which that claimant is entitled in respect of that week, and only the balance remaining                     (if any) is to be payable.                  

(2) In paragraph (1) “net amount”, in relation to any councillor's allowance to which a claimant is entitled, means the aggregate amount of the councillor's                     allowance or allowances, or remuneration to which that claimant is entitled for the week in question, reduced by the amount                     of any payment in respect of expenses wholly, exclusively and necessarily incurred by that claimant, in that week, in the                     performance of the duties of a councillor.                  

(3) Where the amount determined by the calculation in paragraph (1) would, but for this paragraph, include an amount of—

(a)less than 50p, that amount is to be rounded up to the nearest 50p; or                  

(b)less than £1 but more than 50p, that amount is to be rounded up to the nearest £1.                  

### Date from which payments are to be taken into accountE+W+S

70.  Where regulation 67(1) or 69(1) applies, a deduction must have effect, calculated where appropriate in accordance with regulation                     79(1) or (5), from the first day of the benefit week in which the payment or councillor's allowance is paid to a claimant                     who is entitled to an employment and support allowance in that week.                  

### Date from which a change in the rate of the payment takes effectE+W+S

71.  Where a payment or councillor's allowance is already being made to a claimant and the rate of that payment or that allowance                     changes, the deduction at the new rate must take effect, calculated where appropriate in accordance with regulation 79(1)                     or (5), from the first day of the benefit week in which the new rate of the payment or councillor's allowance is paid.                  

### Calculation of payment made other than weeklyE+W+S

72.—(1) Where the period in respect of which a payment or councillor's allowance is paid is otherwise than weekly, an amount calculated                     or estimated in accordance with regulation 79(1) or (5) is to be regarded as the weekly amount of that payment or allowance.                  

(2) In determining the weekly payment, where two or more payments are payable to a claimant, each payment is to be calculated                     separately in accordance with regulation 79(1) or (5) before aggregating the sum of those payments for the purposes of the                     reduction of an employment and support allowance in accordance with regulation 67.                  

### Effect of statutory maternity pay on an employment and support allowanceE+W+S

73.—(1) This regulation applies where—                  

(a)a woman is entitled to statutory maternity pay and, on the day immediately preceding the first day in the maternity pay period,                        she—                  

(i)is in a period of limited capability for work; and                  

(ii)satisfies the conditions of entitlement to an employment and support allowance in accordance with section 1(2)(a) of the Act;                        and                  

(b)on any day during the maternity pay period—                  

(i)she is in a period of limited capability for work; and                  

(ii)that day is not a day where she is treated as not having limited capability for work.                  

(2) Where this regulation applies, notwithstanding section 20(2) of the Act, a woman who is entitled to statutory maternity pay                     is to be entitled to an employment and support allowance in respect of any day that falls within the maternity pay period.                  

(3) Where by virtue of paragraph (2) a woman is entitled to an employment and support allowance for any week (including part of                     a week), the total amount of employment and support allowance payable to her for that week is to be reduced by an amount equivalent                     to any statutory maternity pay to which she is entitled in accordance with Part 12 of the Contributions and Benefits Act for                     the same week (or equivalent part of a week where entitlement to an employment and support allowance is for part of a week),                     and only the balance, if any, of the employment and support allowance is to be payable to her.                  

### Effect of statutory adoption pay on an employment and support allowanceE+W+S

74.—(1) This regulation applies where—                  

(a)a claimant is entitled to statutory adoption pay and, on the day immediately preceding the first day in the adoption pay period,                        she—                  

(i)is in a period of limited capability for work; and                  

(ii)satisfies the conditions of entitlement to an employment and support allowance in accordance with section 1(2)(a) of the Act;                        and                  

(b)on any day during the adoption pay period—                  

(i)that claimant is in a period of limited capability for work; and                  

(ii)that day is not a day where that claimant is treated as not having limited capability for work.                  

(2) Where this regulation applies, notwithstanding section 20(4) of the Act, a claimant who is entitled to statutory adoption                     pay is to be entitled to an employment and support allowance in respect of any day that falls within the adoption pay period.                  

(3) Where by virtue of paragraph (2) a claimant is entitled to an employment and support allowance for any week (including part                     of a week), the total amount of employment and support allowance payable to that claimant for that week is to be reduced by                     an amount equivalent to any statutory adoption pay to which that claimant is entitled in accordance with Part 12ZB of the                     Contributions and Benefits Act F84 for the same week (or equivalent part of a week where entitlement to an employment and support allowance is for part of a                     week), and only the balance, if any, of the employment and support allowance is to be payable to that claimant.                  

F84Part 12ZB was inserted by section 4 of the Employment Act 2002 (c.22).

### Effect of additional statutory paternity pay on an employment and support allowanceE+W+S

75.—(1) This regulation applies where—                  

(a)a claimant is entitled to additional statutory paternity pay and, on the day immediately preceding the first day in the additional                        paternity pay period, she—                  

(i)is in a period of limited capability for work; and                  

(ii)satisfies the conditions of entitlement to an employment and support allowance in accordance with section 1(2)(a) of the Act;                        and                  

(b)on any day during the additional statutory paternity pay period—                  

(i)that claimant is in a period of limited capability for work; and                  

(ii)that day is not a day where that claimant is treated as not having limited capability for work.                  

(2) Where this regulation applies, notwithstanding section 20(6) of the Act, a claimant who is entitled to additional statutory                     paternity pay is to be entitled to an employment and support allowance in respect of any day that falls within the additional                     paternity pay period.                  

(3) Where by virtue of paragraph (2) a person is entitled to an employment and support allowance for any week (including part                     of a week), the total amount of employment and support allowance payable to that claimant for that week is to be reduced by                     an amount equivalent to any additional statutory paternity pay to which that claimant is entitled in accordance with Part                     12ZA of the Contributions and Benefits Act F85 for the same week (or equivalent part of a week where entitlement to an employment and support allowance is for part of a                     week), and only the balance, if any, of the employment and support allowance is to be payable to that claimant.                  

F85Part 12ZA was inserted by section 2 of the Employment Act 2002.

## **PART 10**E+W+SIncome and earnings

### Calculation of earnings derived from employed earner's employment and income other than earningsE+W+S

76.—(1) Earnings derived from employment as an employed earner and income which does not consist of earnings are to be taken into                     account over a period determined in accordance with the following provisions of this regulation and at a weekly amount determined                     in accordance with regulation 79 (calculation of weekly amount of income).                  

(2) Subject to the following provisions of this regulation, the period over which a payment is to be taken into account is to                     be—                  

(a)where the payment is monthly, a period equal to the number of weeks beginning with the date on which the payment is treated                        as paid and ending with the date immediately before the date on which the next monthly payment would have been treated as                        paid whether or not the next monthly payment is actually paid;                  

(b)where the payment is in respect of a period which is not monthly, a period equal to the length of the period for which payment                        is made;                  

(c)in any other case, a period equal to such number of weeks as is equal to the number obtained (see paragraph (9)) by applying                        the formula—                  

where—

E is the net earnings;

J is the amount of an employment and support allowance which would be payable had the payment not been made;

and that period is to begin on the date on which the payment is treated as paid under regulation 78 (date on which income                     is treated as paid).                  

(3) Where—

(a)earnings are derived from the same source but are not of the same kind; and                  

(b)but for this paragraph, the periods in respect of which those earnings would fall to be taken into account overlap, wholly                        or partly,                  

those earnings are to be taken into account over a period equal to the aggregate length of those periods, and that period                     is to begin with the earliest date on which any part of those earnings would be treated as paid under regulation 78.                  

(4) In a case to which paragraph (5) applies, earnings under regulation 80 (earnings of employed earners) are to be taken into                     account in the following order of priority—                  

(a)earnings normally derived from the employment;                  

(b)any payment to which paragraph (1)(b) or (c) of that regulation applies;                  

(c)any payment to which paragraph (1)(j) of that regulation applies;                  

(d)any payment to which paragraph (1)(d) of that regulation applies.                  

(5) Where earnings to which regulation 80(1)(b) to (d) applies are paid in respect of part of a day, those earnings are to be                     taken into account over a period equal to a day.                  

(6) Any earnings to which regulation 80(1)(j) applies which are paid in respect of, or on the termination of, part-time employment,                     are to be taken into account over a period of one week.                  

(7) For the purposes of this regulation the claimant's earnings are to be calculated in accordance with regulations 80 and 81.

(8) For the purposes of paragraph 10 of Schedule 2 to the Act (effect of work), the income which consists of earnings of a claimant                     is to be calculated on a weekly basis by determining the weekly amount of those earnings in accordance with regulations 77                     to 84.                  

(9) For the purposes of the number obtained as mentioned in paragraph (2)(c), any fraction is to be treated as a corresponding                     fraction of a week.                  

### Calculation of earnings of self-employed earnersE+W+S

77.—(1) Where a claimant's income consists of earnings from employment as a self-employed earner, the weekly amount of the claimant's                     earnings is to be determined by reference to the claimant's average weekly earnings from that employment—                  

(a)over a period of one year; or                  

(b)where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the                        normal pattern of business, over such other period as may, in any particular case, enable the weekly amount of the claimant's                        earnings to be determined more accurately.                  

(2) For the purposes of this regulation the claimant's earnings are to be calculated in accordance with regulations 82 to 84.

### Date on which income is treated as paidE+W+S

78.  A payment of income to which regulation 76 (calculation of earnings derived from employed earner's employment and income other                     than earnings) applies is to be treated as paid—                  

(a)in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which                        it is due to be paid;                  

(b)in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week                        in which it is practicable to take it into account.                  

### Calculation of weekly amount of incomeE+W+S

79.—(1) For the purposes of regulation 76 (calculation of earnings derived from employed earner's employment and income other than                     earnings) and regulations 64 to 72 (deductions from employment and support allowance), subject to paragraphs (2) to (5), where                     the period in respect of which a payment is made—                  

(a)does not exceed a week, the weekly amount is to be the amount of that payment;                  

(b)exceeds a week, the weekly amount is to be determined—                  

(i)in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;                  

(ii)in a case where that period is three months, by multiplying the amount of the payment by four and dividing the product by                        52;                  

(iii)in a case where that period is a year and the payment is income, by dividing the amount of the payment by 52;                  

(iv)in any other case, by multiplying the amount of the payment by seven and dividing the product by the number equal to the number                        of days in the period in respect of which it is made.                  

(2) Where a payment for a period not exceeding a week is treated under regulation 78(a) (date on which income is treated as paid)                     as paid before the first benefit week and a part is to be taken into account for some days only in that week (the relevant                     days), the amount to be taken into account for the relevant days is to be calculated by multiplying the amount of the payment                     by the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.                  

(3) Where a payment is in respect of a period equal to or in excess of a week and a part thereof is to be taken into account for                     some days only in a benefit week (the relevant days), the amount to be taken into account for the relevant days is to be calculated                     by multiplying the amount of the payment by the number of relevant days and dividing the product by the number of days in                     the period in respect of which it is made.                  

(4) Except in the case of a payment which it has not been practicable to treat under regulation 78(b) (date on which income is                     treated as paid) as paid on the first day of the benefit week in which it is due to be paid, where a payment of income from                     a particular source is or has been paid regularly and that payment falls to be taken into account in the same benefit week                     as a payment of the same kind and from the same source, the amount of that income to be taken into account in any one benefit                     week is not to exceed the weekly amount determined under paragraph (1)(a) or (b) of the payment which under regulation 78(b)                     is treated as paid first.                  

(5) Where the amount of the claimant's income fluctuates and has changed more than once, or a claimant's regular pattern of work                     is such that the claimant does not work every week, the foregoing paragraphs may be modified so that the weekly amount of                     the claimant's income is determined by reference to the claimant's average weekly income—                  

(a)if there is a recognisable cycle of work, over the period of one complete cycle (including, where the cycle involves periods                        in which the claimant does no work, those periods but disregarding any other absences);                  

(b)in any other case, over a period of five weeks or such other period as may, in the particular case, enable the claimant's                        average weekly income to be determined more accurately.                  

### Earnings of employed earnersE+W+S

80.—(1) Subject to paragraphs (2) and (3), “earnings” means, in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—                  

(a)any bonus or commission;                  

(b)any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of the claimant's                        employment by reason of redundancy;                  

(c)any payment in lieu of notice;                  

(d)any holiday pay except any payable more than four weeks after the termination or interruption of employment;                  

(e)any payment by way of a retainer;                  

(f)any payment made by the claimant's employer in respect of expenses not wholly, exclusively and necessarily incurred in the                        performance of the duties of the employment, including any payment made by the claimant's employer in respect of—                  

(i)travelling expenses incurred by the claimant between the claimant's home and place of employment;                  

(ii)expenses incurred by the claimant under arrangements made for the care of a member of the claimant's family owing to the claimant's                        absence from home;                  

(g)any award of compensation made under section 112(4) or 117(3)(a) of the Employment Rights Act 1996 (the remedies: orders and                        compensation, enforcement of order and compensation) F86;                  

(h)any payment made or remuneration paid under sections 28, 34, 64, 68 and 70 of the Employment Rights Act 1996 (right to guarantee                        payments, remuneration on suspension on medical or maternity grounds, complaints to employment tribunals) F87;                  

(i)any such sum as is referred to in section 112(3) of the Contributions and Benefits Act (certain sums to be earnings for social                        security purposes) F88;                  

(j)where a payment of compensation is made in respect of employment which is part-time employment, the amount of the compensation;                  

(k)the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person's                        earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001 F89.                  

(2) “Earnings” are not to include—

(a)subject to paragraph (3), any payment in kind;                  

(b)any remuneration paid by or on behalf of an employer to the claimant in respect of a period throughout which the claimant                        is on maternity leave, paternity leave or adoption leave (which means a period of absence from work on ordinary or additional                        adoption leave under section 75A or 75B of the Employment Rights Act 1996 F90) or is absent from work because the claimant is ill;                  

(c)any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;                  

(d)any occupational pension (which means any pension or other periodical payment under an occupational pension scheme but does                        not include any discretionary payment out of a fund established for relieving hardship in particular cases);                  

(e)any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme F91;                  

(f)any payment in respect of expenses arising out of the claimant participating as a service user.                  

(3) Paragraph (2)(a) is not to apply in respect of any non-cash voucher referred to in paragraph (1)(k).

(4) In this regulation—

“compensation” means any payment made in respect of, or on the termination of, employment in a case where a claimant has not received or                     received only part of a payment in lieu of notice due or which would have been due to the claimant had that claimant not waived                     the right to receive it, other than—                  

any payment specified in paragraph (1)(a) to (i);

any payment specified in paragraph (2)(a) to (f);

any redundancy payment within the meaning of section 135(1) of the Employment Rights Act 1996;

any refund of contributions to which that person was entitled under an occupational pension scheme; and

any compensation payable by virtue of section 173 of the Education Reform Act 1988 F92;                           

“paternity leave” means a period of absence from work on ordinary paternity leave by virtue of section 80A or 80B of the Employment Rights                     Act 1996 F93 or on additional paternity leave by virtue of section 80AA or 80BB of that Act F94.                  

(5) The reference in paragraph (2)(f) to a person participating as a service user is to—

(a)a person who is being consulted by or on behalf of—                  

(i)a body which has a statutory duty to provide services in the field of health, social care or social housing; or                  

(ii)a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,                  

in the person's capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those                     services; or                  

(b)the carer of a person consulted under sub-paragraph (a).                  

F861996 c.18. Section 112(4) was amended by paragraph 36 of Schedule 7 to the Employment Act 2002 (c.22), **section 8** of the Public Interest Disclosure Act 1998 (c.23) and Schedule 9 to the Employment Relations Act 1999 (c.26). Section 117(3)(a) was amended by paragraph 37 of Schedule 7 to the Employment Act 2002, section 8 of the Public Interest                              Disclosure Act 1998 and Schedule 9 to the Employment Relations Act 1999.

F87Sections 34 and 70 were amended by section 1 of the Employment Rights (Dispute Resolution) Act 1998 (c.8) and S.I. 2011/1133. Section 64 was amended by S.I. 1999/3232.

F88Section 112(3) was amended by paragraph 51 of Schedule 1 to the Employment Rights Act 1996.

F89S.I. 2001/1004.

F90Section 75A was inserted by section 3 of the Employment Act 2002 and amended by paragraph 33 of Schedule 1 to the Work and Families Act 2006 (c.18). Section 75B was inserted by section 3 of the Employment Act 2002 and amended by paragraph 34 of Schedule 1 to the Work and                              Families Act 2006.

F91The Scheme is set out in regulation 4 of, and the Schedule to, the European Communities (Iron and Steel Employees Re-adaptation                              Benefits Scheme) (No.2) Regulations 1996/3182.

F921988 c.40. Section 173 was amended by Schedule 3 to the Employment Rights Act 1996.

F93Section 80A was inserted by section 1 of the Employment Act 2002 and amended by paragraph 35 of Schedule 1 to the Work and Families Act                              2006. Section 80B was inserted by section 1 of the Employment Act 2002 and amended by paragraph 36 of Schedule 1 to the Work                              and Families Act 2006.

F94Section 80AA was inserted by section 3 of the Work and Families Act 2006. Section 80BB was inserted by section 4 of the Work and Families                              Act 2006.

### Calculation of net earnings of employed earnersE+W+S

81.—(1) For the purposes of regulation 76 (calculation of earnings derived from employed earner's employment and income other than                     earnings) the earnings of a claimant derived from employment as an employed earner to be taken into account are the claimant's                     net earnings.                  

(2) For the purposes of paragraph (1) net earnings are to be calculated by taking into account the gross earnings of the claimant                     from that employment less—                  

(a)any amount deducted from those earnings by way of—                  

(i)income tax;                  

(ii)primary Class 1 contributions under section 6(1)(a) of the Contributions and Benefits Act F95;                  

(b)one-half of any sum paid by the claimant in respect of a pay period by way of a contribution towards an occupational or personal                        pension scheme.                  

F95Section 6 was substituted by paragraph 2 of Schedule 9 to the Welfare Reform and Pensions Act 1999 (c.30).

### Earnings of self-employed earnersE+W+S

82.—(1) Subject to paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross receipts of the                     employment and include any allowance paid under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise                     and New Towns (Scotland) Act 1990 to the claimant for the purpose of assisting the claimant in carrying on the claimant's                     business.                  

(2) “Earnings” do not include—

(a)where a claimant is involved in providing board and lodging accommodation for which a charge is payable, any payment by way                        of such a charge;                  

(b)any award made by one of the Sports Councils named in section 23(2) of the National Lottery etc Act 1993 F96 out of sums allocated to it for distribution under that section.                  

(3) In this regulation, “board and lodging” means—                  

(a)accommodation provided to a person or, if the person is a member of a family, to that person or any other member of that person's                        family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals                        which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of                        that person's family) and are consumed in that accommodation or associated premises; or                  

(b)accommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,                  

except accommodation provided by a close relative of the person or any other member of the person's family, or other than                     on a commercial basis.                  

F961993 c.39. Section 23(2) was amended by S.I.s 1996/3095, 1999/1563 and 2006/654.

### Calculation of net profit of self-employed earnersE+W+S

83.—(1) For the purposes of regulation 77 (calculation of earnings of self-employed earners), the earnings of a claimant to be taken                     into account are to be—                  

(a)in the case of a self-employed earner who is engaged in employment on that self-employed earner's own account, the net profit                        derived from that employment;                  

(b)in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within                        the meaning of the Social Security (Mariners' Benefits) Regulations 1975 F97, that self-employed earner's share of the net profit derived from that employment less—                  

(i)an amount in respect of income tax and of National Insurance contributions payable under the Contributions and Benefits Act                        calculated in accordance with regulation 84 (deduction of tax and contributions for self-employed earners); and                  

(ii)one half of any contribution paid in the period that is relevant under regulation 77 (calculation of earnings of self-employed                        earners) in respect of a personal pension scheme.                  

(2) For the purposes of paragraph (1)(a) the net profit of the employment, except where paragraph (8) applies, is to be calculated                     by taking into account the earnings of the employment over the period determined under regulation 77 less—                  

(a)subject to paragraphs (4) to (6), any expenses wholly and exclusively defrayed in that period for the purposes of that employment;                  

(b)an amount in respect of—                  

(i)income tax; and                  

(ii)National Insurance contributions payable under the Contributions and Benefits Act,                  

calculated in accordance with regulation 84 (deduction of tax and contributions for self-employed earners); and

(c)one half of any contribution paid in the period that is relevant under regulation 77 in respect of a personal pension scheme.                  

(3) For the purposes of paragraph (1)(b), the net profit of the employment is to be calculated by taking into account the earnings                     of the employment over the period determined under regulation 77 less, subject to paragraphs (4) to (6), any expenses wholly                     and exclusively defrayed in that period for the purpose of that employment.                  

(4) Subject to paragraph (5), a deduction is not to be made under paragraph (2)(a) or (3) in respect of—

(a)any capital expenditure;                  

(b)the depreciation of any capital asset;                  

(c)any sum employed or intended to be employed in the setting up or expansion of the employment;                  

(d)any loss incurred before the beginning of the period determined under regulation 77 (calculation of earnings of self-employed                        earners);                  

(e)the repayment of capital on any loan taken out for the purposes of the employment;                  

(f)any expenses incurred in providing business entertainment.                  

(5) A deduction is to be made under paragraph (2)(a) or (3) in respect of the repayment of capital on any loan used for—

(a)the replacement in the course of business of equipment or machinery; and                  

(b)the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.                  

(6) The Secretary of State must refuse to make a deduction in respect of any expenses under paragraph (2)(a) or (3) where the                     Secretary of State is not satisfied that the expense has been defrayed or, having regard to the nature of the expense and                     its amount, that it has been reasonably incurred.                  

(7) A deduction—

(a)is not to be made under paragraph (2)(a) or (3) in respect of any sum unless it has been expended for the purposes of the                        business;                  

(b)is to be made under paragraph (2)(a) or (3) in respect of—                  

(i)the excess of any Value Added Tax paid over Value Added Tax received in the period determined under regulation 77;                  

(ii)any income expended in the repair of an existing asset except to the extent that any sum is payable under an insurance policy                        for its repair;                  

(iii)any payment of interest on a loan taken out for the purposes of the employment.                  

(8) Where a claimant is engaged in employment as a child minder the net profit of the employment is to be one-third of the earnings                     of that employment, less—                  

(a)an amount in respect of—                  

(i)income tax; and                  

(ii)National Insurance contributions payable under the Contributions and Benefits Act,                  

calculated in accordance with regulation 84 (deduction of tax and contributions for self-employed earners); and

(b)one half of any contribution paid in respect of a personal pension scheme.                  

(9) Notwithstanding regulation 77 (calculation of earnings of self-employed earners) and the foregoing paragraphs, the Secretary                     of State may assess any item of a claimant's income or expenditure over a period other than that determined under regulation                     77 as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.                  

(10) Where a claimant is engaged in employment as a self-employed earner and that claimant is also engaged in one or more other                     employments as a self-employed or employed earner, any loss incurred in any one of the claimant's employments is not to be                     offset against the claimant's earnings in any other of the claimant's employments.                  

F97S.I. 1975/529.

### Deduction of tax and contributions for self-employed earnersE+W+S

84.—(1) Subject to paragraph (2), the amount to be deducted in respect of income tax under regulation 83(1)(b)(i), (2)(b)(i) or (8)(a)(i)                     (calculation of net profit of self-employed earners) is to be calculated on the basis of the amount of chargeable income and                     as if that income were assessable to income tax at the basic rate of tax less only the personal allowance to which the claimant                     is entitled under sections 35 and 38 to 40 of the Income Tax Act 2007 (personal reliefs) F98 as is appropriate to the claimant's circumstances.                  

(2) If the period determined under regulation 77 is less than a year, the earnings to which the basic rate of tax is to be applied                     and the amount of the personal reliefs deductible under paragraph (1) are to be calculated on a pro rata basis.                  

(3) The amount to be deducted in respect of National Insurance contributions under regulation 83(1)(b)(i), (2)(b)(ii) or (8)(a)(ii)                     is to be the total of—                  

(a)the amount of Class 2 contributions payable under section 11(1) or, as the case may be, (3) of the Contributions and Benefits                        Act F99 at the rate applicable at the date of claim except where the claimant's chargeable income is less than the amount specified                        in section 11(4) of that Act (small earnings exception) for the tax year in which the date of claim falls; but if the assessment                        period is less than a year, the amount specified for that tax year is to be reduced pro rata; and                  

(b)the amount of Class 4 contributions (if any) which would be payable under section 15 of that Act (Class 4 contributions recoverable                        under the Income Tax Acts) F100 at the percentage rate applicable at the date of claim on so much of the chargeable income as exceeds the lower limit but                        does not exceed the upper limit of profits applicable for the tax year in which the date of claim falls; but if the assessment                        period is less than a year, those limits are to be reduced pro rata.                  

(4) In this regulation—

“assessment period” means the period mentioned in regulation 77 over which the weekly amount of the claimant's earnings is to be determined;                  

“basic rate” has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);                  

“chargeable income” means—                  

except where paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (2)(a)                              or, as the case may be, (3) of regulation 83;                           

in the case of employment as a child minder, one-third of the earnings of that employment.

F982007 c.3. Section 35 was amended by section 4 of the Finance Act 2009 (c.10) and sections 3 and 4 of the Finance Act 2012 (c.14). Section 38 was amended by S.I. 2011/2926. Section 40 was amended by paragraph 55 of Schedule 9 to the Finance Act 2008 (c.9).

F99Section 11 was amended by paragraph 12 of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc) Act 1999 (c.2) and S.I. 2012/807.

F100Section 15 was amended by paragraph 420 of Schedule 1 to the Income Tax (Trading and Other Income) Act 2005 (c.5), **sections 2** and 3 of the National Insurance Contributions Act 2002 (c.19), **section 13** of the Limited Liability Partnerships Act 2000 (c.12) and S.I.s 2011/938 and 2012/807.

## **PART 11**E+W+SSupplementary provisions

### Waiting daysE+W+S

85.—(1) The number of days prescribed for the purposes of paragraph 2 of Schedule 2 to the Act (days during which a person is not                     entitled to an employment and support allowance at the beginning of a period of limited capability for work) is three.                  

(2) Paragraph 2 of Schedule 2 to the Act does not apply where—

(a)the claimant's entitlement to an employment and support allowance commences within 12 weeks of the claimant's entitlement                        to income support, incapacity benefit, severe disablement allowance, state pension credit, a jobseeker's allowance, a carer's                        allowance, statutory sick pay or a maternity allowance coming to an end;                  

(b)the claimant is terminally ill and has—                  

(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 Decisions and Appeals Regulations 1999 or the Decisions                        and Appeals Regulations 2013 which contains an express statement that the claimant is terminally ill;                  

(c)the claimant has been discharged from being a member of Her Majesty's forces and three or more days immediately before that                        discharge were days of sickness absence from duty, which are recorded by the Secretary of State; or                  

(d)the claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after                        time-limiting).                  

### Linking periodE+W+S

86.  Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated                     as a continuation of the earlier period.                  

### Claimants appealing a decisionE+W+S

87.—(1) This regulation applies where a claimant 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 under these Regulations.                  

(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Secretary of                     State under regulation 15 must not be made until the appeal is determined by the First-tier Tribunal.                  

(3) Paragraph (2) does not apply where either—

(a)the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering                        when entitlement began; or                  

(b)a disease or bodily or mental disablement from which the claimant was suffering when entitlement began has significantly worsened.                  

(4) Where this regulation applies and the Secretary of State makes a determination—

(a)in a case to which paragraph (3) applies (including where the determination is not the first such determination) that the                        claimant does not have or, by virtue of regulation 18 or 19, is to be treated as not having limited capability for work; or                  

(b)subsequent to a determination that the claimant is to be treated as having limited capability for work by virtue of a provision                        of these Regulations other than regulation 26, that the claimant is no longer to be so treated,                  

this regulation and regulation 26 have effect as if that determination had not been made.

(5) Where this regulation applies and—

(a)the claimant is entitled to an employment and support allowance by virtue of being treated as having limited capability for                        work in accordance with regulation 26;                  

(b)neither of the circumstances in paragraph (3) applies, or, subsequent to the application of either of those circumstances,                        the claimant has been determined not to have limited capability for work; and                  

(c)the claimant's appeal is dismissed, withdrawn or struck out,                  

the claimant is to be treated as not having limited capability for work with effect from the day specified in paragraph (6).

(6) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Secretary                     of State receives the First-tier Tribunal's notification that the appeal is dismissed, withdrawn or struck out.                  

(7) Where a claimant's appeal is successful, subject to paragraph (8), any finding of fact or other determination embodied in                     or necessary to the decision of the First-tier Tribunal or on which the First-tier Tribunal's decision is based is to be conclusive                     for the purposes of the decision of the Secretary of State, in relation to an award made in a case to which this regulation                     applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.                  

(8) Paragraph (7) does not apply where, due to a change of circumstances after entitlement began, the Secretary of State is satisfied                     that it is no longer appropriate to rely on such finding or determination.                  

### Absence from Great BritainE+W+S

88.—(1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary                     absence from Great Britain only in accordance with regulations 89 to 92.                  

(2) A claimant who continues to be entitled to an employment and support allowance during a period of temporary absence is not                     disqualified for receiving that allowance during that period under section 18(4) of the Act F101.                  

F101Section 18(4) was amended by paragraph 26 of Schedule 3 to the Welfare Reform Act 2012.

### Short absenceE+W+S

89.  A claimant is to continue to be entitled to an employment and support allowance during the first four weeks of a temporary                     absence from Great Britain if—                  

(a)the period of absence is unlikely to exceed 52 weeks; and                  

(b)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment                        and support allowance.                  

### Absence to receive medical treatmentE+W+S

90.—(1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence                     from Great Britain if—                  

(a)the period of absence is unlikely to exceed 52 weeks;                  

(b)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment                        and support allowance;                  

(c)the claimant is absent from Great Britain only—                  

(i)in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly                        related to the claimant's limited capability for work which commenced before leaving Great Britain; or                  

(ii)because the claimant is accompanying a dependent child (which means any child or qualifying young person who is treated as                        the responsibility of the claimant or the claimant's partner, where that child or young person is a member of the claimant's                        household) in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement;                        and                  

(d)those arrangements relate to treatment—                  

(i)outside Great Britain;                  

(ii)during the period whilst the claimant is temporarily absent from Great Britain; and                  

(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment.                  

(2) In this regulation, “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either                     of those forms of treatment.                  

### Absence in order to receive NHS treatmentE+W+S

91.  A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from                     Great Britain if—                  

(a)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to that employment                        and support allowance; and                  

(b)that period of temporary absence is for the purpose of the claimant receiving treatment at a hospital or other institution                        outside Great Britain where the treatment is being provided—                  

(i)under section 6(2) of the Health Service Act (Performance of functions outside England) F102 or section 6(2) of the Health Service (Wales) Act (Performance of functions outside Wales);                  

(ii)pursuant to arrangements made under section 12(1) of the Health Service Act (Secretary of State's arrangements with other                        bodies) F103, section 10(1) of the Health Service (Wales) Act (Welsh Ministers' arrangements with other bodies), paragraph 18 of Schedule                        4 to the Health Service Act (joint exercise of functions) F104 or paragraph 18 of Schedule 3 to the Health Service (Wales) Act (joint exercise of functions) F105; or                  

(iii)under any equivalent provision in Scotland or pursuant to arrangements made under such provision.                  

F102Section 6(2) was amended by paragraph 2 of Schedule 4 to the Health and Social Care Act 2012 (c.7).

F103Section 12 was amended by paragraph 8 of Schedule 4 to the Health and Social Care Act 2012.

F104Paragraph 18 of Schedule 4 was amended by paragraph 8 of Schedule 4 to the Health and Social Care Act 2012.

F105Paragraph 18 of Schedule 3 was amended by paragraph 40 of Schedule 21 to the Health and Social Care Act 2012.

### Absence of member of family of member of Her Majesty's forcesE+W+S

92.—(1) A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from                     Great Britain if the claimant is a member of the family of a member of Her Majesty's forces and temporarily absent from Great                     Britain by reason only of the fact that the claimant is living with that member.                  

(2) In this regulation “member of the family of a member of Her Majesty's forces” means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in-law                     or step-mother of such a member.                  

## **PART 12**E+W+SDisqualification

### Disqualification for misconduct etcE+W+S

93.—(1) Subject to paragraph (3), paragraph (2) applies where a claimant—                  

(a)has limited capability for work by reason of the claimant's own misconduct, except in a case where the limited capability                        is due to a sexually transmitted disease;                  

(b)fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or surgery                        which the Secretary of State considers is major) recommended by a doctor with whom, or a hospital or similar institution with                        which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant's capability                        for work;                  

(c)fails without good cause to refrain from behaviour calculated to retard the claimant's recovery to health; or                  

(d)is, without good cause, absent from the claimant's place of residence without informing the Secretary of State where the claimant                        may be found.                  

(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an employment and support allowance for such period                     not exceeding six weeks as the Secretary of State may determine in accordance with Chapter 2 of Part 1 of the Social Security                     Act 1998 F106.                  

(3) Paragraph (2) does not apply where the claimant—

(a)is disqualified for receiving an employment and support allowance by virtue of regulations made under section 6B or 7 of the                        Social Security Fraud Act 2001; or                  

(b)is a person in hardship.                  

(4) In this regulation, “doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom,                     a person registered or recognised as such in the country in which the person undertakes medical practice.                  

F1061998 c.14.

### Meaning of “person in hardship”E+W+S

94.—(1) A claimant is a “person in hardship” if the claimant—                  

(a)has informed the Secretary of State of the circumstances on which the claimant relies to establish that fact; and                  

(b)falls within paragraph (2), (3) or (5).                  

(2) A claimant falls within this paragraph if—

(a)she is pregnant;                  

(b)a member of the claimant's family is pregnant;                  

(c)the claimant is single and aged less than 18; or                  

(d)the claimant is a member of a couple and both members are aged less than 18.                  

(3) Subject to paragraph (4), the claimant falls within this paragraph if the claimant or the claimant's partner—

(a)has been awarded an attendance allowance, [F107armed forces independence payment,] the care component or the daily living component;                  

(b)has claimed attendance allowance, [F108armed forces independence payment,] disability living allowance or personal independence payment and the claim has not been determined;                  

(c)devotes what the Secretary of State considers is a considerable portion of each week to caring for another person who—                  

(i)has been awarded an attendance allowance, [F109armed forces independence payment,] the care component or the daily living component; or                  

(ii)has claimed attendance allowance, [F110armed forces independence payment,] disability living allowance or personal independence payment and the claim has not been determined; or                  

(d)has attained the qualifying age for state pension credit, which has the meaning given in section 1(6) of the State Pension                        Credit Act 2002 F111.                  

(4) A claimant to whom paragraph (3)(b) or (3)(c)(ii) applies is a person in hardship only for 26 weeks from the date of the claim                     unless the claimant is a person in hardship under another provision of this regulation.                  

(5) The claimant falls within this paragraph where the Secretary of State is satisfied, having regard to all the circumstances                     and, in particular, the matters set out in paragraph (6), that unless an employment and support allowance is paid, the claimant,                     or a member of the claimant's family, will suffer hardship.                  

(6) The matters referred to in paragraph (5) are—

(a)the resources which are likely to be available to the claimant and the claimant's family and the length of time for which                        they might be available; and                  

(b)whether there is a substantial risk that essential items, including food, clothing and heating, will cease to be available                        to the claimant or a member of the claimant's family, or will be available at considerably reduced levels and the length of                        time for which this might be so.                  

(7) In this regulation—

[F112“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;]                  

“attendance allowance” means—                  

an attendance allowance under section 64 of the Contributions and Benefits Act F113;                           

an increase of disablement pension under section 104 or 105 of that Act;

a payment under regulations made under section 111 of, and paragraph 7(2)(b) of Schedule 8 to, that Act;

an increase in allowance which is payable in respect of constant attendance under section 111 of, and paragraph 4 of Schedule                              8 to, that Act;                           

a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983 F114 or any analogous payment;                           

any payment based on the need for attendance which is paid as an addition to a war disablement pension (which means any retired                              pay or pension or allowance payable in respect of disablement under an instrument specified in section 639(2) of the Income                              Tax (Earnings and Pensions) Act 2003 F115);                           

“care component” means the care component of disability living allowance at the highest or middle rate prescribed under section 72(3) of                     the Contributions and Benefits Act;                  

“daily living component” means the daily living component of personal independence payment at the standard or enhanced rate referred to in section                     78 of the Welfare Reform Act 2012;                  

“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act F116;                  

“personal independence payment” means an allowance under Part 4 of the Welfare Reform Act 2012.                  

F107Words in reg. 94(3)(a) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I.                                 2013/591), arts. 2(2), 7, **Sch. para. 51(2)(a)**

F108Words in reg. 94(3)(b) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I.                                 2013/591), arts. 2(2), 7, **Sch. para. 51(2)(b)**

F109Words in reg. 94(3)(c)(i) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I.                                 2013/591), arts. 2(2), 7, **Sch. para. 51(2)(c)**

F110Words in reg. 94(3)(c)(ii) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I.                                 2013/591), arts. 2(2), 7, **Sch. para. 51(2)(d)**

F1112002 c.16.

F112Words in reg. 94(7) inserted (8.4.2013) by The Armed Forces and Reserve Forces Compensation Scheme (Consequential Provisions: Subordinate Legislation) Order 2013 (S.I.                                 2013/591), arts. 2(2), 7, **Sch. para. 51(2)(e)**

F1131992 c.4. Section 64 was amended by section 66(1) of the Welfare Reform and Pensions Act 1999 (c.30) and paragraph 5 of Schedule 9 to the Welfare Reform Act 2012.

F114S.I. 1983/686. Article 14 was substituted by S.I. 2001/420. Article 15 was amended by S.I. 2001/420. Article 16 was amended by S.I.s 1984/1675 and 2001/420.

F1152003 c.1. Section 639(2) was inserted by the Finance Act 2005 (c.7).

F116Section 71 was amended by section 67 of the Welfare Reform and Pensions Act 1999.

### Treating a claimant as not having limited capability for workE+W+S

95.  The claimant is to be treated as not having limited capability for work if the claimant is disqualified for receiving an employment                     and support allowance during a period of imprisonment or detention in legal custody if that disqualification is for more than                     six weeks.                  

### Exceptions from disqualification for imprisonmentE+W+S

96.—(1) Notwithstanding section 18(4)(b) of the Act F117, a claimant is not disqualified for receiving an employment and support allowance for any period during which that claimant                     is undergoing imprisonment or detention in legal custody—                  

(a)in connection with a charge brought or intended to be brought against the claimant in criminal proceedings;                  

(b)pursuant to any sentence of a court in criminal proceedings; or                  

(c)pursuant to any order for detention made by a court in criminal proceedings,                  

unless paragraph (2) applies.

(2) This paragraph applies where—

(a)a penalty is imposed on the claimant at the conclusion of the proceedings referred to in paragraph (1); or                  

(b)in the case of default of payment of a sum adjudged to be paid on conviction, a penalty is imposed in respect of such default.                  

(3) Notwithstanding section 18(4)(b) of the Act, a claimant (“C”) is not to be disqualified for receiving an employment and support                     allowance, for any period during which C is undergoing detention in legal custody after the conclusion of criminal proceedings                     if it is a period during which C is detained in a hospital or similar institution in Great Britain as a person suffering from                     mental disorder unless C satisfies either of the following conditions.                  

(4) The first condition is that—

(a)C is being detained under section 45A or 47 of the Mental Health Act 1983 (power of higher courts to direct hospital admission;                        removal to hospital of persons serving sentences of imprisonment etc); and                  

(b)in any case where there is in relation to C a release date within the meaning of section 50(3) of that Act, C is being detained                        on or before the day which the Secretary of State certifies to be that release date.                  

(5) The second condition is that C is being detained under—

(a)section 59A of the Criminal Procedure (Scotland) Act 1995 (hospital direction); or                  

(b)section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (transfer of prisoners for treatment of mental disorder).                  

(6) For the purposes of this regulation—

(a)“court” means any court in the United Kingdom, the Channel Islands or the Isle of Man or in any place to which the Colonial Prisoners                        Removal Act 1884 F118 applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial                        (Appeals) Act 1968 F119 or the Courts-Martial Appeal Court;                  

(b)“hospital or similar institution” means any place (not being a prison, a young offender institution, a secure training centre, secure accommodation in a children's                        home or a remand centre, and not being at or in any such place) in which persons suffering from mental disorder are or may                        be received for care or treatment;                  

(c)“penalty” means a sentence of imprisonment or detention under section 90 or 91 of the Powers of Criminal Courts (Sentencing) Act 2000                        F120, a detention and training order under section 100 of that Act F121, a sentence of detention for public protection under section 226 of the Criminal Justice Act 2003 F122 or an extended sentence under section 228 of that Act F123 or, in Scotland, under section 205, 207 or 208 of the Criminal Procedure (Scotland) Act 1995 F124;                  

(d)in relation to a person who is liable to be detained in Great Britain as a result of any order made under the Colonial Prisoners                        Removal Act 1884, references to a prison must be construed as including references to a prison within the meaning of that                        Act;                  

(e)criminal proceedings against any person must be deemed to be concluded upon that person being found insane in those proceedings                        so that the person cannot be tried or that person's trial cannot proceed.                  

(7) Where a claimant outside Great Britain is undergoing imprisonment or detention in legal custody and, in similar circumstances                     in Great Britain, the claimant would, by virtue of this regulation, not have been disqualified for receiving an employment                     and support allowance, the claimant is not disqualified for receiving that allowance by reason only of the imprisonment or                     detention.                  

F117Section 18(4) was amended by paragraph 26 of Schedule 3 to the Welfare Reform Act 2012.

F1181884 c.31.

F1191968 c.20.

F1202000 c.6. Section 90 was amended by section 60 of the Criminal Justice and Court Services Act 2000 (c.43). Section 91 was amended by paragraph 181 of Schedule 7 to the Criminal Justice and Court Services Act 2000, paragraph 43                              of Schedule 6 to the Sexual Offences Act 2003 (c.42), **section 289** of, and Schedule 7 and paragraph 110 of Schedule 32 to, the Criminal Justice Act 2003 (c.44), **paragraph 7** of Schedule 1 to the Violent Crime Reduction Act 2006 (c.38) and paragraph 56 of Schedule 4 to the Criminal Justice and Immigration Act 2008 (c.4).

F121Section 100 was amended by paragraph 111 of Schedule 32 to the Criminal Justice Act 2003 and paragraph 184 of Schedule 7 to the Criminal                              Justice and Court Services Act 2000.

F122Section 226 was amended by section 14 of the Criminal Justice and Immigration Act 2008.

F123Section 228 was amended by section 16 of, and Schedule 28 to, the Criminal Justice and Immigration Act 2008.

F1241995 c. 46. Section 205 was amended by section 2(1) of the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7). Section 207 was amended by paragraph 4(3) of the Violent Crime Reduction Act 2006 (c.38) and section 6(4) of, and paragraph 21(25) of Schedule 1 to, the Crime and Punishment (Scotland) Act 1997 (c.48). Section 208 was amended by section 290(3) of the Criminal Justice Act 2003 (c.44), **section 10(3)** and (4) of the Antisocial Behaviour etc. (Scotland) Act 2004 (asp 8), **section 49** of the Violent Crime Reduction Act 2006 and section 21(2) and (3) of the Criminal Justice and Licensing (Scotland) Act 2010 (asp 13).

### Suspension of payment of an employment and support allowance during imprisonmentE+W+S

97.—(1) Subject to the following provisions of this regulation, the payment of an employment and support allowance to any claimant—                  

(a)which is excepted from the operation of section 18(4)(b) of the Act by virtue of the provisions of regulation 96(1), (3) or                        (7); or                  

(b)which is payable otherwise than in respect of a period during which the claimant is undergoing imprisonment or detention in                        legal custody,                  

is suspended while that claimant is undergoing imprisonment or detention in legal custody.

(2) An employment and support allowance is not to be suspended while the claimant is liable to be detained in a hospital or similar                     institution, as defined in regulation 96(6), during a period for which in the claimant's case, the allowance is or would be                     excepted from the operation of section 18(4)(b) by virtue of the provisions of regulation 96(3).                  

(3) Where, by virtue of this regulation, payment of an employment and support allowance is suspended for any period, the period                     of suspension is not to be taken into account in calculating any period under the provisions of regulation 55 of the Claims                     and Payments Regulations 2013 (extinguishment of right to payment if payment is not obtained within the prescribed time).                  

## **PART 13**E+W+SPeriods of less than a week

### Entitlement for less than a week – amount of an employment and support allowance payableE+W+S

98.—(1) This regulation applies where the claimant is entitled to an employment and support allowance for a part-week and this regulation                     is subject to the following provisions of this Part.                  

(2) The amount payable by way of an employment and support allowance in respect of a part-week is to be calculated by applying                     the formula—                  

where—

X is the amount calculated in accordance with section 2(1) of the Act;

N is the number of days in the part-week.

(3) In this Part—

“part-week” means an entitlement to an employment and support allowance in respect of any period of less than a week; and                  

“relevant week” means the period of seven days determined in accordance with regulation 99.                  

### Relevant weekE+W+S

99.—(1) Where a part-week—                  

(a)is the whole period for which an employment and support allowance is payable, or occurs at the beginning of an award, the                        relevant week is the period of seven days ending on the last day of that part-week; or                  

(b)occurs at the end of an award, the relevant week is the period of seven days beginning on the first day of the part-week.                  

(2) Where a claimant has an award of an employment and support allowance and that claimant's benefit week changes, for the purpose                     of calculating the amounts of an employment and support allowance payable for the part-week beginning on the day after the                     last complete benefit week before the change and ending immediately before the change, the relevant week is the period of                     seven days beginning on the day after the last complete benefit week.                  

### Modification in the calculation of incomeE+W+S

100.  For the purposes of regulation 98 (entitlement for less than a week – amount of an employment and support allowance payable),                     a claimant's income is to be calculated in accordance with regulations 76 to 84 subject to the following changes—                  

(a)any income which is due to be paid in the relevant week is to be treated as paid on the first day of that week;                  

(b)any widow's benefit, training allowance, widowed parent's allowance, bereavement allowance, carer's allowance and any increase                        in disablement pension payable in accordance with Part 1 of Schedule 7 to the Contributions and Benefits Act (unemployability                        supplement) which is payable in the relevant week but not in respect of any day in the part-week is to be disregarded;                  

(c)where the part-week occurs at the end of the claim—                  

(i)any income; or                  

(ii)any change in the amount of income of the same kind,                  

which is first payable within the relevant week but not on any day in the part-week is to be disregarded;

(d)where only part of the weekly balance of income is taken into account in the relevant week, the balance is to be disregarded.                  

### Reduction in certain casesE+W+S

101.—(1) Where a disqualification is to be made in accordance with regulation 93 in respect of a part-week, the amount referred to                     in paragraph (2) is to be payable by way of an employment and support allowance in respect of that part-week.                  

(2) The amount mentioned in paragraph (1) is—

(a)one seventh of the employment and support allowance which would have been paid for the part-week if—                  

(i)there was no disqualification under regulation 93; and                  

(ii)it was not a part-week; multiplied by                  

(b)the number of days in the part-week in respect of which no disqualification is to be made in accordance with regulation 93.                  

### Payment of an employment and support allowance for days of certain treatmentE+W+S

102.—(1) Where a claimant is entitled to an employment and support allowance as a result of being treated as having limited capability                     for work in accordance with regulation 22, the amount payable is to be equal to one seventh of the amount of the employment                     and support allowance which would be payable in respect of a week in accordance with section 2(1) of the Act multiplied by                     N.                  

(2) In paragraph (1), N is the number of days in that week on which the claimant was receiving treatment referred to in regulation                     22 or recovering from that treatment, but does not include any day during which the claimant does work.                  

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

Freud

 Parliamentary Under-Secretary of State,

 Department for Work and Pensions

25th February 2013

 Regulation 2

## SCHEDULE 1E+W+SHer Majesty's Forces

### **PART 1**E+W+SPrescribed establishments and organisations

1.  Any of the regular naval, military or air forces of the Crown.E+W+S

2.  Royal Fleet Reserve.E+W+S

3.  Royal Navy Reserve.E+W+S

4.  Royal Marines Reserve.E+W+S

5.  Army Reserve.E+W+S

6.  Territorial Army.E+W+S

7.  Royal Air Force Reserve.E+W+S

8.  Royal Auxiliary Air Force.E+W+S

9.  The Royal Irish Regiment, to the extent that its members are not members of any force falling within paragraph 1.E+W+S

### **PART 2**E+W+SEstablishments and organisations of which Her Majesty's forces do not consist

10.  Her Majesty's forces are not to be taken to consist of any of the establishments or organisations specified in Part 1 of this                     Schedule by virtue only of the employment in such establishment or organisation of the following persons—E+W+S

(a)any person who is serving as a member of any naval force of Her Majesty's forces and who (not having been an insured person                        under the National Insurance Act 1965 F125 and not having been a contributor under the Social Security Act 1975 F126 or not being a contributor under the Contributions and Benefits Act) locally entered that force at an overseas base;

(b)any person who is serving as a member of any military force of Her Majesty's forces and who entered that force, or was recruited                        for that force outside the United Kingdom, and the depot of whose unit is situated outside the United Kingdom;

(c)any person who is serving as a member of any air force of Her Majesty's forces and who entered that force, or was recruited                        for that force, outside the United Kingdom, and is liable under the terms of engagement to serve only in a specified part                        of the world outside the United Kingdom.

F1251965 c.51.

F1261975 c.14.

 Regulation 15(2) and (3)

## SCHEDULE 2E+W+SAssessment of Whether a Claimant has Limited Capability for Work

### **PART 1**E+W+SPhysical Disabilities

### **PART 2**E+W+SMental, cognitive and intellectual function assessment

 Regulation 30(1)

## SCHEDULE 3E+W+SAssessment of whether a claimant has limited capability for work-related activity

## Explanatory Note

(This note is not part of the Regulations)

These Regulations provide for a social security benefit to be known as an employment and support allowance, which replaces                        the existing benefit of the same name. The new benefit is for people who have a health condition or disability which limits                        their capability to work. People will only be able to claim the new benefit where they have made sufficient National Insurance                        contributions. People will no longer be able to claim employment and support allowance where they have low or no other income                        but have not made sufficient National Insurance contributions. Many rules for the existing benefit are replicated in these                        Regulations for the new benefit.                     

Most claimants will be required to serve an assessment phase which will normally last for 13 weeks from the start of the claim                        (regulations 5 to 7). During this period claimants will receive a rate of benefit that depends on whether they are aged under                        or over 25 years. Once the assessment phase is complete and subject to satisfying the assessment of “limited capability for                        work” (see Part 4) claimants will move onto the main phase of the benefit. Their entitlement will then consist of the basic                        rate – a flat rate of benefit, regardless of age – and, on top of this, a work-related activity or support component. Some                        claimants will be entitled to the work-related activity component and will be required to engage in “conditionality” (Part                        7). Failure to engage can lead to the imposition of a reduction in benefit (Part 8). Claimants who demonstrate “limited capability                        for work-related activity” (Part 5) will be entitled to the support component instead of the work-related activity component,                        in addition to the basic rate. These claimants will be those with the most severe health conditions and will not be subject                        to any conditionality requirements.                     

Part 2 provides detailed provisions on when the assessment phase will end.

Part 3 deals with conditions of entitlement.

Part 4 deals with the determination of whether or not a claimant has limited capability for work. The assessment used to determine                        this is set out in Schedule 2. It also provides for the circumstances in which a claimant is to be treated as having or not                        having limited capability for work.                     

Part 5 deals with the determination of whether or not a claimant has limited capability for work-related activity. The assessment                        used to determine this is set out in Schedule 3. It also provides for the circumstances in which a claimant is to be treated                        as having or not having limited capability for work-related activity.                     

Part 6 provides for the circumstances in which the work a claimant does affects the claimant's entitlement.

Part 7 makes provision in relation to the claimant's responsibilities. The claimant can be required to prepare for work and                        attend interviews in relation to work or work preparation. The provisions in Part 2 include details on which requirements                        apply to which claimants, how those requirements are met and circumstances in which they do not apply. Regulation 42 deals                        with the claimant's responsibilities where they are entitled to Universal Credit as well as an employment and support allowance.                        Regulations 44 and 45 contain provisions for accepting the claimant commitment which is usually a condition of entitlement.                     

Part 8 contains provisions relating to the reduction of benefit where a claimant fails to meet their responsibilities without                        good reason. This is known as a sanction. This includes the cases in which a sanction cannot be imposed, how long a sanction                        is to last and how much of the claimant's employment and support allowance will be sanctioned. There are also provisions for                        transferring sanctions to and from Universal Credit, for example where a claimant with a sanction ceases to be entitled to                        Universal Credit and becomes entitled to an employment and support allowance.                     

Part 9 specifies the amounts of employment and support allowance which are payable.

Part 10 deals with the calculation of a claimant's income and earnings.

Part 11 provides for supplementary provisions. This includes providing that a claimant must wait a number of days at the start                        of a period of limited capability for work before becoming entitled to ESA (regulation 85) and rules which enable two periods                        of limited capability for work separated by not more than 12 weeks to be linked together (regulation 86).                     

Part 12 provides for the circumstances in which a claimant may be disqualified from receiving an employment and support allowance                        and includes provision to deal with the situation where this would leave a person in hardship.                     

Part 13 contains details enabling the amount of an employment and support allowance to be calculated where the claimant is                        entitled for a period of less than a week.                     

A full impact assessment has not been published for these Regulations as they have no impact on the private sector or civil                        society organisations. An assessment has been made of the impact of the introduction of Universal Credit. The Welfare Reform                        Act 2012 abolishes income-related employment and support allowance as a consequence of the introduction of Universal Credit.                        That assessment is therefore relevant, in part, for these Regulations. Copies of that impact assessment may be obtained from                        the Better Regulation Unit of the Department for Work and Pensions, 2D Caxton House, Tothill Street, London SW1 9NA or from                        the DWP website: http://www.dwp.gov.uk/policy/welfare-reform/legislation-and-key-documents/welfare-reform-act-2012/impact-assessments-and-equality.