The Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (Northern Ireland) 2011

Made: 7th March 2011

Coming into operation: 28th March 2011

The Department for Social Development makes the following Regulations in exercise of the powers conferred by sections 8(1), 9(1) and 25(2) of, and paragraphs 1 and 9 of Schedule 2 to, the Welfare Reform Act (Northern Ireland) 2007[^f00001].

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Employment and Support Allowance (Limited Capability for Work and Limited Capability for Work-related Activity) (Amendment) Regulations (Northern Ireland) 2011 and shall come into operation on 28th March 2011.

• (2) In these Regulations—

• “the Employment and Support Allowance Regulations” means the Employment and Support Allowance Regulations (Northern Ireland) 2008[^f00002]; and

• “the Reassessment Regulations” means the Employment and Support Allowance (Transitional Provisions and Housing Benefit) (Existing Awards) Regulations (Northern Ireland) 2010[^f00003].

Application

2

• (1) These Regulations apply to—

• (a) a person who makes a claim for employment and support allowance on or after 28th March 2011 (including a claim in respect of any period before that date);

• (b) subject to paragraphs (2) and (3), a person who made a claim for employment and support allowance before 28th March 2011 in respect of whom a determination is made on or after that date as to whether that person has or is to be treated as having limited capability for work under Part 5 of the Employment and Support Allowance Regulations (limited capability for work) or as to whether that person has or is to be treated as having limited capability for work-related activity under Part 6 of those Regulations (limited capability for work-related activity);

• (c) subject to paragraphs (2) and (3), a person who is entitled to employment and support allowance immediately before 28th March 2011 in respect of whom, on or after that date—

• (i) the Department determines afresh under regulation 19(7) of the Employment and Support Allowance Regulations (determination of limited capability for work) whether the person has or is to be treated as having limited capability for work;

• (ii) the Department determines afresh under regulation 34(4) of the Employment and Support Allowance Regulations whether the person has or is to be treated as having limited capability for work-related activity; and

• (d) subject to paragraphs (2) and (3), a notified person as defined by regulation 4 of the Reassessment Regulations[^f00004] in respect of whom a determination is made on or after 28th March 2011 as to whether that person has or is to be treated as having limited capability for work under Part 5 of the Employment and Support Allowance Regulations or as to whether that person has or is to be treated as having limited capability for work-related activity under Part 6 of the Employment and Support Allowance Regulations.

• (2) Where, before 28th March 2011, a questionnaire relating to the previous version of Schedule 2 to the Employment and Support Allowance Regulations was issued to a person in accordance with regulation 21(1)(b) of those Regulations (information required for determining capability for work), regulation 3(5) does not apply to that person for the purposes of making a determination as to limited capability for work under Part 5 of the Employment and Support Allowance Regulations.

• (3) Where, before 28th March 2011, a questionnaire relating to the previous version of Schedule 3 to the Employment and Support Allowance Regulations was issued to a person in accordance with regulation 36(1)(a) of those Regulations (information required for determining capability for work-related activity) regulation 3(6) does not apply to that person for the purposes of making a determination as to limited capability for work-related activity under Part 6 of the Employment and Support Allowance Regulations.

• (4) In this Regulation “the previous version of Schedule 2 to the Employment and Support Allowance Regulations” and “the previous version of Schedule 3 to the Employment and Support Allowance Regulations” mean those Schedules as they have effect immediately before the date on which these Regulations come into operation.

• (5) The provisions of paragraphs (2) to (4) do not apply to any determination made, on or after 28th September 2011.

Amendment of the Employment and Support Allowance Regulations

3

• (1) The Employment and Support Allowance Regulations are amended in accordance with paragraphs (2) to (6).

• (2) In regulation 20 (certain claimants to be treated as having limited capability for work)—

• (a) at the end of paragraph (b)(i) insert “, or is likely to receive such treatment within 6 months after the date of determination under this sub-paragraph”; and

• (b) after paragraph (f) insert—

(g) any of the descriptors at paragraph 15 or 16 of Schedule 3 apply to the claimant.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) For Schedule 2 substitute the Schedule in Schedule 1 of these Regulations.

• (6) For Schedule 3 substitute the Schedule in Schedule 2 of these Regulations.

Revocation

4

Regulation 3(28) of the Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008[^f00005] is revoked.

SCHEDULE 1

SCHEDULE 2

Signed

Sealed with the Official Seal of the Department for Social Development on 7th March 2011

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

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations amend the Employment and Support Allowance Regulations (Northern Ireland) 2008 relating to the work capability assessment. These Regulations substitute the descriptors and criteria applied to determine capability for work, and for work-related activity, and amend provisions which allow a person to be treated as having limited capability for work, or for work-related activity, without an assessment in certain circumstances.

Regulation 2 sets out who the Regulations apply to. It provides that they apply to all persons who claim employment and support allowance on or after the date these Regulations come into operation. The regulations also apply to persons who claim before that date, and persons who have been notified under the reassessment process (from incapacity benefit, severe disablement allowance or income support on grounds of incapacity), who have their capability for work or their capability for work-related activity determined on or after that date. Finally, the regulations apply to persons who are re-assessed on or after that date. However, where the person was sent a questionnaire (as to their capability for work or for work-related activity) based on the un-amended provisions before that date these Regulations will not apply. Instead the determination in such cases will be based on the un-amended provisions. This is subject to a six month limit after which all assessments will be made under the amended provisions (regulation 2(6)).

Regulation 3 amends the provisions in regulations 20 (certain claimants to be treated as having limited capability for work), 25 (hospital in-patients) and 35 (certain claimants to be treated as having limited capability for work-related activity) and substitutes Schedules 2 and 3. Paragraph (2) adds persons who are likely to receive chemotherapy treatment within 6 months after the date of the determination of capability for work, and those who meet the eating and drinking descriptors in paragraphs 15 and 16 of Schedule 3, to those who are to be treated as having limited capability for work. Paragraph (3) makes clear that a person who attends residential rehabilitation for treating drugs or alcohol addiction is regarded as receiving treatment within the terms of regulation 25. Paragraph (4) similarly adds persons likely to receive chemotherapy treatment within 6 months after their determination of capability for work-related activity to those who are to be treated as having limited capability for work-related activity. Paragraphs (5) and (6) substitute Schedules 2 and 3 respectively to set out the criteria for the assessment of whether a person has limited capability for work or for work-related activity.

Regulation 4 makes a consequential revocation.

These Regulations 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, the Social Security Administration (Northern Ireland) Act 1992, are not subject to the requirement of section 149(2) of that Act for prior reference to the Social Security Advisory Committee.

Footnotes

[^f00001]: 2007 c. 2

[^f00002]: S.R. 2008 No. 280

[^f00003]: S.R. 2010 No. 347

[^f00004]: Regulation 4 of the Reassessment Regulations defines a notified person as a person to whom a notice is issued. A notice commences the conversion phase under the Reassessment Regulations for persons who are entitled to an existing award. An existing award is an award of incapacity benefit, severe disablement allowance or income support on the grounds of incapacity (see paragraph 11 of Schedule 4 to the Welfare Reform Act (Northern Ireland) 2007)

[^f00005]: S.R. 2008 No. 413

Editorial notes

[^key-54dee2abe8b2ebdac965293be517e2a8]: Reg. 1 in operation at 28.3.2011, see reg. 1(1)

[^key-bfe5b59911f5194e7ed37e2c1bba81aa]: Reg. 2 in operation at 28.3.2011, see reg. 1(1)

[^key-29a39b2346975b21ba87805a4fffe4a8]: Reg. 3 in operation at 28.3.2011, see reg. 1(1)

[^key-17eea9e87e87012e7202c34625d6b8c0]: Reg. 4 in operation at 28.3.2011, see reg. 1(1)

[^key-ca0a29b2560959a0ae309ba1b601fc22]: Sch. 1 in operation at 28.3.2011, see reg. 1(1)

[^key-3b9f9d1f75359a03efc1f35b3daa89c9]: Sch. 2 in operation at 28.3.2011, see reg. 1(1)

[^key-f91c99aa0aa4e9c16286d9328ff7c626]: Reg. 3(3)(4) revoked (28.1.2013) by The Employment and Support Allowance (Amendment) Regulations (Northern Ireland) 2013 (S.R. 2013/2), regs. 1(1), 7 (with reg. 2)