The Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010

(2) In the application of this Schedule to a beneficiary whose award of an employment and support allowance is by virtue of the Existing Awards Regulations, any reference to an employment and support allowance includes any transitional addition to which the beneficiary is entitled under those Regulations. (3) Where a specified benefit awarded to a beneficiary is subject to conversion under the Existing Awards Regulations and— (a) immediately before the effective date of the conversion decision made in relation to the beneficiary, any deduction is being made in accordance with this Schedule from sums payable to the beneficiary by way of the specified benefit; and (b) with effect from that date, the award of specified benefit is converted into an award of an employment and support allowance under the Existing Awards Regulations, any deduction falling within head (a) shall have effect as a deduction from the employment and support allowance to which the beneficiary is entitled.

6

Regulation 5A(2) of the Additional Pension and Social Security Pensions (Home Responsibilities) (Amendment) Regulations (Northern Ireland) 2001⁶³ (earnings factor credits eligibility for pensioners to whom employment and support allowance was payable) is to be read as if—

• (a) the word “or” after sub-paragraph (b) were omitted; and

• (b) after that sub-paragraph there were inserted—

(ba) that allowance was an employment and support allowance to which the pensioner was entitled by virtue of the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010 and either— (i) long-term incapacity benefit or severe disablement allowance was payable to the pensioner immediately before its conversion into an employment and support allowance in accordance with those Regulations; or (ii) the condition in sub-paragraph (b) was satisfied; or

SCHEDULE 3 — Regulations that apply after the conversion phase

The Regulations referred to in regulation 16(2)(g) are—

• The Social Security (Benefit) (Married Women and Widows Special Provisions) (Northern Ireland) Regulations 1975⁶⁴

• The Social Security (Benefit) (Members of the Forces) Regulations 1975⁶⁵

• The Social Security (Airmen’s Benefits) Regulations (Northern Ireland) 1975⁶⁶

• The Social Security (Mariners’ Benefits) Regulations (Northern Ireland) 1975⁶⁷

• The Social Security (Credits) Regulations (Northern Ireland) 1975⁶⁸

• The Social Security (Medical Evidence) Regulations (Northern Ireland) 1976⁶⁹

• The Social Security (Overlapping Benefits) Regulations (Northern Ireland) 1979⁷⁰

• The Statutory Sick Pay (General) Regulations (Northern Ireland) 1982⁷¹

• The Statutory Maternity Pay (General) Regulations (Northern Ireland) 1987⁷²

• The Income Support (General) Regulations (Northern Ireland) 1987⁷³

• The Social Security (Claims and Payments) Regulations (Northern Ireland) 1987⁷⁴

• The Social Fund (Recovery by Deductions from Benefits) Regulations (Northern Ireland) 1988⁷⁵

• The Social Security (Payments on account, Overpayments and Recovery) Regulations (Northern Ireland) 1988⁷⁶

• The Social Fund (Cold Weather Payments) (General) Regulations (Northern Ireland) 1988⁷⁷

• The Child Support (Maintenance Assessment Procedure) Regulations (Northern Ireland) 1992⁷⁸

• The Child Support (Maintenance Assessments and Special Cases) Regulations (Northern Ireland) 1992⁷⁹

• The Jobseeker’s Allowance Regulations (Northern Ireland) 1996⁸⁰

• The Social Security Benefits (Maintenance Payments and Consequential Amendments) Regulations (Northern Ireland) 1996⁸¹

• The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996

• The Child Support Departure Direction and Consequential Amendments Regulations (Northern Ireland) 1996⁸²

• The Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999⁸³

• The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000⁸⁴

• The Social Fund Winter Fuel Payment Regulations (Northern Ireland) 2000⁸⁵

• The Child Support (Maintenance Calculation Procedure) Regulations (Northern Ireland) 2001⁸⁶

• The Child Support (Maintenance Calculations and Special Cases) Regulations (Northern Ireland) 2001⁸⁷

• The Child Support (Variations) Regulations (Northern Ireland) 2001⁸⁸

• The Social Security (Crediting and Treatment of Contributions, and National Insurance Numbers) Regulations (Northern Ireland) 2001⁸⁹

• The Social Security (Loss of Benefit) Regulations (Northern Ireland) 2002⁹⁰

• The State Pension Credit Regulations (Northern Ireland) 2003⁹¹

• The Social Security (Work-focused Interviews for Partners) Regulations (Northern Ireland) 2003⁹²

• The Social Security (Habitual Residence) Amendment Regulations (Northern Ireland) 2004

• The Children (Leaving Care) Social Security Benefits Regulations (Northern Ireland) 2005⁹³

• The Age-Related Payments Regulations (Northern Ireland) 2005⁹⁴

• The Social Fund Maternity and Funeral Expenses (General) Regulations (Northern Ireland) 2005⁹⁵.

SCHEDULE 4 — Amendment of legislation relating to housing benefit

PART 1 — AMENDMENT OF THE HOUSING BENEFIT REGULATIONS

1

• (1) The Housing Benefit Regulations (Northern Ireland) 2006⁹⁶ are amended in accordance with sub-paragraphs (2) to (5).

• (2) In regulation 2(1)⁹⁷ (interpretation)—

• (a) after the definition of “contributory employment and support allowance” insert—

• “converted employment and support allowance” means an employment and support allowance which is not income-related and to which a person is entitled as a result of a conversion decision within the meaning of the Employment and Support Allowance (Existing Awards) Regulations;

; and

• (b) after the definition of “the Employment and Support Allowance Regulations” insert—

• “the Employment and Support Allowance (Existing Awards) Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;

• (3) In regulation 20⁹⁸ (applicable amounts) after paragraph (e) add—

(f) the amount of any transitional addition which may be applicable to him in accordance with Parts VII and VIII of Schedule 4.

• (4) In regulation 21⁹⁹ (polygamous marriages) after paragraph (f) add—

(g) the amount of any transitional addition which may be applicable to him in accordance with Parts VII and VIII of Schedule 4.

• (5) In Schedule 4 (applicable amounts)—

• (a) for paragraph 1A¹⁰⁰ substitute—

(1A) For the purposes of paragraph 1 a claimant is entitled to main phase employment and support allowance if— (a) each of the conditions in paragraph 21 is satisfied in relation to the claimant personally; or (b) the claimant personally is entitled to a converted employment and support allowance.

• (b) after paragraph 21¹⁰¹ insert—

(21A) Subject to paragraph 22, the claimant is entitled to one, but not both, of the components in paragraphs 23 and 24 if the claimant or the claimant’s partner is entitled to a converted employment and support allowance.

; and

• (c) after Part VI¹⁰² (amount of components) add—

(27) (1) The claimant is entitled to the transitional addition calculated in accordance with paragraph 30 where the claimant or the claimant’s partner (“the relevant person”)— (a) is entitled to a converted employment and support allowance; or (b) is appealing a conversion decision as described in regulation 5(2)(b) of the Employment and Support Allowance (Existing Awards) Regulations and— (i) is treated as having limited capability for work by virtue of regulation 30 of the Employment and Support Allowance Regulations as modified by the Employment and Support Allowance (Existing Awards) Regulations, and (ii) is not in receipt of an income-related employment and support allowance, unless the amount of the transitional addition calculated in accordance with paragraph 30 would be nil. (2) The claimant’s entitlement to a transitional addition by virtue of this paragraph ends on any of the following— (a) the reduction of the transitional addition to nil in accordance with paragraph 31; (b) the termination of the claimant’s award of housing benefit; (c) the relevant person ceasing to meet the requirements of sub-paragraph (1)(a) or (b), as the case may be; (d) the claimant or the claimant’s partner becoming entitled to an income-related employment and support allowance, an income-based jobseeker’s allowance or income support; (e) 5th April 2020. (28) (1) This paragraph applies where— (a) the claimant’s entitlement to a transitional addition ends, by virtue of the termination of the claimant’s award of housing benefit, under— (i) paragraph 27(2)(b); (ii) sub-paragraph (3)(b), or (iii) paragraph 29(3)(b); (b) within 104 weeks of that termination but before 5th April 2020 the claimant again becomes entitled to housing benefit; (c) in the benefit week in which the claimant again becomes entitled to housing benefit the relevant person is entitled to an employment and support allowance which is not income-related; (d) if the period between the events mentioned in paragraphs (a) and (b) is more than 12 weeks, the intervening period is one to which regulation 145(2) of the Employment and Support Allowance Regulations (linking period where the claimant is a work or training beneficiary) applies in respect of the relevant person; and (e) at the date on which the claimant again becomes entitled to housing benefit, neither the claimant nor the claimant’s partner is entitled to an income-related employment and support allowance, an income-based jobseeker’s allowance or income support. (2) Where this paragraph applies, the claimant is entitled, with effect from the day on which the claimant again becomes entitled to housing benefit, to a transitional addition of the amount of the transitional addition that would have applied had the claimant’s entitlement to a transitional addition not ended (but taking account of the effect which any intervening change of circumstances would have had by virtue of paragraph 31), unless the amount of the transitional addition would be nil. (3) The claimant’s entitlement to a transitional addition by virtue of this paragraph ends on any of the following— (a) the reduction of the transitional addition to nil in accordance with paragraph 31; (b) the termination of the claimant’s award of housing benefit; (c) the relevant person no longer being entitled to the employment and support allowance referred to in sub-paragraph (1)(c); (d) the claimant or the claimant’s partner becoming entitled to an income-related employment and support allowance, an income-based jobseeker’s allowance or income support; (e) 5th April 2020. (29) (1) This paragraph applies where— (a) the claimant’s entitlement to a transitional addition ends, by virtue of the relevant person ceasing to be entitled to an employment and support allowance, under— (i) paragraph 27(2)(c); (ii) paragraph 28(3)(c), or (iii) sub-paragraph (3)(c); (b) before 5th April 2020 the relevant person again becomes entitled to an employment and support allowance which is not income-related; (c) either— (i) at the date on which the relevant person again becomes entitled to an employment and support allowance which is not income-related, regulation 145(1) of the Employment and Support Allowance Regulations applies to the relevant person, or (ii) the period between the events mentioned in paragraphs (a) and (b) is one to which regulation 145(2) of the Employment and Support Allowance Regulations applies in respect of the relevant person; and (d) at the date on which the relevant person again becomes entitled to an employment and support allowance which is not income-related, neither the claimant nor the claimant’s partner is entitled to an income-related employment and support allowance, an income-based jobseeker’s allowance or income support. (2) Where this paragraph applies, the claimant is entitled, with effect from the day that the relevant person’s entitlement to employment and support allowance takes effect for housing benefit purposes, to a transitional addition of the amount of the transitional addition that would have applied had the claimant’s entitlement to a transitional addition not ended (but taking account of the effect which any intervening change of circumstances would have had by virtue of paragraph 31), unless the amount of the transitional addition would be nil. (3) The claimant’s entitlement to a transitional addition by virtue of this paragraph ends on any of the following— (a) the reduction of the transitional addition to nil in accordance with paragraph 31; (b) the termination of the claimant’s award of housing benefit; (c) the relevant person no longer being entitled to the employment and support allowance referred to in sub-paragraph (1)(b); (d) the claimant or the claimant’s partner becoming entitled to an income-related employment and support allowance, an income-based jobseeker’s allowance or income support; (e) 5th April 2020. (30) (1) Subject to paragraph 31, the amount of the transitional addition is the amount by which Amount A exceeds Amount B. (2) Where a conversion decision as described in regulation 5(2)(a) of the Employment and Support Allowance (Existing Awards) Regulations is made in respect of the relevant person— (a) Amount A is the basic amount that would have applied on the day that decision took effect had that decision not been made; and (b) Amount B is the basic amount that applied on that day as a result of that decision. (3) Where the relevant person is appealing a conversion decision as described in regulation 5(2)(b) of the Employment and Support Allowance (Existing Awards) Regulations and is treated as having limited capability for work by virtue of regulation 30 of the Employment and Support Allowance Regulations as modified by the Employment and Support Allowance (Existing Awards) Regulations— (a) Amount A is the basic amount that would have applied on the day the relevant person was first treated as having limited capability for work if the relevant person had not been so treated; and (b) Amount B is the basic amount that applied on that day as a result of the relevant person being so treated. (4) In this paragraph and paragraph 31 “basic amount” means the aggregate of such amounts as may apply in the claimant’s case in accordance with regulation 20(a) to (e) or 21(a) to (f). (31) (1) Subject to sub-paragraph (2), where there is a change of circumstances which leads to an increase in the claimant’s basic amount, the transitional addition that applies immediately before the change of circumstances shall be reduced by the amount by which Amount C exceeds Amount D. (2) If Amount C exceeds Amount D by more than the amount of the transitional addition that applies immediately before the change of circumstances, that transitional addition shall be reduced to nil. (3) Amount C is the basic amount that applies as a result of the increase. (4) Amount D is the basic amount that applied immediately before the increase.

PART 2 — AMENDMENT OF THE HOUSING BENEFIT (DECISIONS AND APPEALS) REGULATIONS

Amendment of the Housing Benefit (Decisions and Appeals) Regulations

2

• (1) The Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001¹⁰³ are amended in accordance with paragraphs (2) and (4).

• (2) In regulation 1(2) (interpretation) after the definition of “Decisions and Appeals Regulations 1999” insert—

• “the Employment and Support Allowance (Existing Awards) Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010;

• (3) In regulation 7(2) (decisions superseding earlier decisions)—

• (a) in sub-paragraph (h)¹⁰⁴ after “sub-paragraph (j)” insert “, (k) or (l)”;

• (b) after sub-paragraph (j)¹⁰⁵ add—

(k) where— (i) the claimant has been awarded entitlement to housing benefit, (ii) the claimant or the claimant’s partner has had an award of benefit converted to an employment and support allowance in accordance with regulation 5(2)(a) of the Employment and Support Allowance (Existing Awards) Regulations, and (iii) subsequent to the first day of the period to which that entitlement to housing benefit relates, the Department makes a decision to supersede the award of employment and support allowance to award a different component; (l) where the claimant has been awarded entitlement to housing benefit and subsequent to the first day of the period to which that entitlement relates— (i) a conversion decision of the kind set out in regulation 5(2)(a) of the Employment and Support Allowance (Existing Awards) Regulations takes effect in respect of the claimant or the claimant’s partner, or (ii) the claimant is appealing a conversion decision as described in regulation 5(2)(b) of the Employment and Support Allowance (Existing Awards) Regulations and is treated as having limited capability for work by virtue of regulation 30 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 as modified by the Employment and Support Allowance (Existing Awards) Regulations.

• (4) In regulation 8 (date from which a decision superseding an earlier decision takes effect)—

• (a) in paragraph (13)¹⁰⁶—

• (i) after “regulation 7(2)(j)” insert “or (k)”, and

• (ii) in sub-paragraph (a) after “regulation 7(2)(j)(iii)” insert “or (k)(iii)”; and

• (b) after paragraph (13) add—

(14) Where a decision is superseded in accordance with regulation 7(2)(l) the decision shall take effect— (a) where the decision made in accordance with the Employment and Support Allowance (Existing Awards) Regulations takes effect on or after 1st April in any year but before 16th April of that year— (i) from 1st April for a housing benefit award in which the claimant’s weekly amount of eligible rent falls to be calculated in accordance with regulation 78(2)(b) or (c) of the Housing Benefit Regulations or, as the case may be, regulation 59(2)(b) or (c) of the Housing Benefit (State Pension Credit) Regulations; (ii) from the first Monday in April for a housing benefit award to which head (i) does not apply; (b) in any other case, from the day the decision made in accordance with the Employment and Support Allowance (Existing Awards) Regulations takes effect.

Signed

Sealed with the Official Seal of the Department for Social Development on 10th September 2010

Anne McCleary — A senior officer of the Department for Social Development

The Department of Finance and Personnel consents to regulation 26 and Schedule 4.

Sealed with the Official Seal of the Department of Finance and Personnel on 10th September 2010

Jack Layberry — A senior officer of the Department of Finance and Personnel

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations make transitional provision in relation to the introduction of employment and support allowance and apply to persons entitled to any existing award (which is defined in Schedule 4 to the Welfare Reform Act (Northern Ireland) 2007 in terms of incapacity benefit, severe disablement allowance and income support on the grounds of incapacity or disability). The Regulations set out the process for determining whether existing awards are to be converted into awards of an employment and support allowance. An award may be converted only if certain conditions are satisfied in relation to the person entitled to the award.

The Regulations also make related amendments to the Housing Benefit Regulations (Northern Ireland) 2006 and the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001.

Part 2 and Schedule 1 set out the process for determining whether or not a person’s existing award is to be converted into an award of an employment and support allowance. The conversion process operates on an individual basis and, in each case, begins when the Department sends a notice under regulation 4 to the person. Where the person is entitled to more than one existing award the notice and conversion process apply to both awards. Regulation 5 requires the Department to determine whether or not the existing award or awards qualify for conversion and to notify the person accordingly. There is also provision for notification to be given in the event that an existing award ceases to be subject to conversion. To facilitate this determination regulation 6 and Schedule 1 apply certain statutory provisions that already have effect in relation to persons who make a claim for an employment and support allowance. Schedule 1 makes modifications to these statutory provisions to take account of the different circumstances that arise because a person is already entitled to an existing award and is not required to make a claim. There is also provision to enable the Department to obtain information in order to make conversion decisions and to provide for conversion decisions to be revised before they come into effect.

Under regulation 7, a person’s existing award or awards qualify for conversion if the person satisfies the basic conditions for entitlement to an employment and support allowance, except for the condition that they are not entitled to income support. One of these basic conditions is that the person has limited capability for work. This will be determined on an individual basis in accordance with the arrangements for the limited capability for work assessment set out in the Employment and Support Allowance Regulations (Northern Ireland) 2008, as modified by Schedule 1 to these Regulations.

If an existing award or awards do qualify for conversion, the Department must determine in accordance with regulations 8 to 12 the amount to which the person is entitled. In broad terms, this is the aggregate of the amount to which the person would have been entitled on a successful claim for an employment and support allowance and the additional amount referred to in the Regulations as a “transitional addition”. The transitional addition is based on the difference between specified elements of the person’s existing award and specified elements of the employment and support allowance into which it is to be converted.

The date on which the Department’s decision about conversion comes into effect is provided for in regulation 13, and regulations 14 and 15 set out the consequences which follow from the decision. Where the decision is that a person’s award or awards do qualify for conversion, regulation 14 converts them into a single award of employment and support allowance. Where the decision is that a person’s existing award or awards do not qualify, regulation 15 provides that the award or awards terminate immediately before the effective date of the conversion decision.

Part 3 of, and Schedules 2 and 3 to, the Regulations set out the framework which has effect in relation to any person with effect from the effective date of their conversion decision made under Part 2 of the Regulations. In relation to any matter to be determined in connection with a person’s entitlement to an employment and support allowance (including a decision not to convert an award), regulation 16 and Schedules 2 and 3 apply certain statutory provisions that already have effect in relation to an award of employment and support allowance made following a claim. This includes provision for revision, supersession and appeals in connection with conversion decisions which have come into effect. There are modifications of these statutory provisions in Schedule 2. Regulation 17 makes provision about a change of circumstances occurring before the effective date of a conversion decision. Regulations 18 to 20 set out the circumstances in which the amount is to be reduced and regulation 21 provides for termination when the amount is reduced to nil, when the person ceases to be entitled to an employment and support allowance or 5th April 2020 (whichever occurs first).

Part 4 of the Regulations contains miscellaneous provisions, including provision in regulation 24 which omits the saving in regulation 2(2)(a), (b) and (c) of the Employment and Support Allowance (Transitional Provisions) Regulations (Northern Ireland) 2008 that enables a person previously entitled to incapacity benefit, severe disablement allowance and income support on grounds of incapacity or disability to make a repeat (linked) claim for that benefit in certain circumstances, rather than a new claim for employment and support allowance. This provision comes into operation on 31st January 2011.

Regulation 25 omits regulation 31 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 which provides that a claimant who claims a jobseeker’s allowance and is able to show a reasonable prospect of obtaining employment is throughout that claim to be treated as not having limited capability for work. Regulation 25 also amends regulation 144 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 so that a person does not have to serve a period of waiting days in relation to a new claim for employment and support allowance if that person would have benefited from the saving omitted by regulation 24 if they had made a claim before 31st January 2011.

Regulation 26 and Schedule 4 provide for amendments to legislation relating to housing benefit which complement the conversion process. Part 1 of Schedule 4 makes amendments to the Housing Benefit Regulations (Northern Ireland) 2006, providing for a transitional addition to a claimant’s applicable amount where the claimant or the claimant’s partner has had an award of benefit converted to an employment and support allowance in accordance with these Regulations or is appealing a decision not to convert an award to an employment and support allowance. Part 2 of Schedule 4 amends the Housing Benefit (Decisions and Appeals) Regulations (Northern Ireland) 2001 to make provision for the supersession of awards of housing benefit to take account of conversion decisions.

Paragraphs 7 and 8 of Schedule 4 to the Welfare Reform Act (Northern Ireland) 2007, some of the enabling provisions under which these Regulations are made, were brought into operation on 9th September 2010, by virtue of the Welfare Reform (2007 Act) (Commencement No. 8) Order (Northern Ireland) 2010 (S.R.2010 No. 308 (C. 17)).

In so far as these Regulations are required, for the purposes of regulation 26 and Schedule 4, to be referred to the Social Security Advisory Committee under section 149(2) of the Social Security Administration (Northern Ireland) Act 1992, after agreement by the Social Security Advisory Committee, they have not been so referred by virtue of section 150(1)(b) of that Act. Otherwise they make in relation to Northern Ireland only provision corresponding to provision contained in Regulations made by the Secretary of State for Work and Pensions in relation to Great Britain and accordingly, by virtue of section 149(3) of, and paragraph 10 of Schedule 5 to, that Act, are not subject to the requirement of section 149(2) for prior reference to the Social Security Advisory Committee.

Footnotes

Editorial notes