The Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013

Made: 17th October 2013

Coming into operation: 29th October 2013

The Department for Social Development makes the following Regulations in exercise of the powers conferred by sections 22(5), 95(1), 122(1)(a),123(1)(d) and (e), 131(1) and (2), 132(3) and (4) and 171(1), (3) and (4) of the Social Security Contributions and Benefits (Northern Ireland) Act 1992 , sections 5(1)(a) and (q), 165(1) and (4) to (6) of the Social Security Administration (Northern Ireland) Act 1992 , Articles 6(5) and (12) and 36(2) of the Jobseekers (Northern Ireland) Order 1995 , Articles 11(3) and (6) and 74(1), (3) and (4) of the Social Security (Northern Ireland) Order 1998 , and now vested in it , sections 1(5)(a), 15(6)(b) and 19(1) to (3) of the State Pension Credit Act (Northern Ireland) 2002 and sections 2(1), 4(2), 8, 9, 17(1) and (3), 24(1), (2) and (3), 25(2) and 28(2) of, and paragraphs 4(1), 6(3) and (8) of Schedule 1 and paragraphs 1, 9 and 10 of Schedule 2 to, the Welfare Reform Act (Northern Ireland) 2007 .

Regulations 9 and 10 are made with the consent of the Department of Finance and Personnel .

The Social Security Advisory Committee has agreed that proposals in respect of regulations 9 and 10 should not be referred to it .

Citation, commencement and interpretation

1

• (1) These Regulations may be cited as the Social Security (Miscellaneous Amendments No. 2) Regulations (Northern Ireland) 2013 and shall come into operation on 29th October 2013.

• (2) The Interpretation Act (Northern Ireland) 1954 shall apply to these Regulations as it applies to an Act of the Assembly.

Amendment of the Social Security (Credits) Regulations

2

Omit regulation 8A(4) of the Social Security (Credits) Regulations (Northern Ireland) 1975 (credits for unemployment).

Amendment of the Income Support Regulations

3

• (1) The Income Support (General) Regulations (Northern Ireland) 1987 are amended in accordance with paragraphs (2) to (5).

• (2) In regulation 4ZA (prescribed category of person) omit paragraph (3)(a) .

• (3) In regulation 13(2) (circumstances in which persons in relevant education are to be entitled to income support) omit sub-paragraph (bc) .

• (4) In regulation 21AA(4) (special cases: supplemental—persons from abroad)—

• (a) for sub-paragraph (h) substitute—

(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is— (i) discretionary leave to enter or remain in the United Kingdom; (ii) leave to remain under the Destitution Domestic Violence concession , or (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005 ;

• (b) at the end of sub-paragraph (hh) add “ or ”; and

• (c) omit sub-paragraphs (j) and (k) .

• (5) Omit regulation 22B (period for which applicable amount is to be calculated where person not excluded from income support under section 115 of the Immigration and Asylum Act).

Amendment of the Social Security (Claims and Payments) Regulations

4

• (1) The Social Security (Claims and Payments) Regulations (Northern Ireland) 1987 are amended in accordance with paragraphs (2) and (3)

• (2) In regulation 5 (amendment and withdrawal of claim) for paragraph (1) substitute—

(1) A person who has made a claim for benefit may amend it at any time before a determination has been made on the claim by notice in writing received at an appropriate office, by telephone call to a telephone number specified by the Department or in such other manner as the Department may decide or accept. (1A) Any claim amended in accordance with paragraph (1) may be treated as if it had been so amended in the first instance.

• (3) In paragraph 4 (miscellaneous accommodation costs) of Schedule 8A (deductions from benefits and direct payment to third parties)—

• (a) in sub-paragraph (1) for head (b) substitute—

(b) in the case of state pension credit, is made to a person residing in— (i) a nursing home or residential care home as defined in regulation 1(2) of the State Pension Credit Regulations, (ii) an independent hospital as defined in regulation 1(2) of those Regulations, (iii) an establishment run by the Abbeyfield Society (including all bodies corporate or incorporate which are affiliated to the Society), or (iv) accommodation provided under Article 15 of the Health and Personal Social Services (Northern Ireland) Order 1972 .

; and

• (b) in sub-paragraph (2)(a) for “regulation 15(7)(c) of the State Pension Credit Regulations” substitute “ sub-paragraph (1)(b)(ii) ”.

Amendment of the Jobseeker's Allowance Regulations

5

In regulation 85A(4) (special cases: supplemental – persons from abroad) of the Jobseeker's Allowance Regulations (Northern Ireland) 1996 for sub-paragraph (h) substitute—

(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is— (i) discretionary leave to enter or remain in the United Kingdom; (ii) leave to remain under the Destitution Domestic Violence concession, or (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;

• (a) at the end of sub-paragraph (hh) add “ or ”; and

• (b) omit sub-paragraphs (j) and (k) .

Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations

6

After paragraph 3(e) of Schedule 2C of the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 (date from which change of circumstances takes effect where a claimant is entitled to employment and support allowance) add—

(f) regulation 9 of the Social Security (Disability Living Allowance) Regulations (Northern Ireland) 1992 (persons in care homes) applies, or ceases to apply, to the claimant for a period of less than one week.

Amendment of the Social Security (Immigration and Asylum) Consequential Regulations

7

• (1) The Social Security (Immigration and Asylum) Consequential Amendments Regulations (Northern Ireland) 2000 are amended in accordance with paragraphs (2) and (3).

• (2) Omit regulation 2(8) (persons not excluded from specified benefits under section 115 of the Act).

• (3) Omit paragraph 1 of the Schedule (persons not excluded from certain benefits under section 115 of the Immigration and Asylum Act 1999).

Amendment of the State Pension Credit Regulations

8

In regulation 2(4) of the State Pension Credit Regulations (Northern Ireland) 2003 (persons not in Northern Ireland)—

• (a) for sub-paragraph (h) substitute—

(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is— (i) discretionary leave to enter or remain in the United Kingdom, (ii) leave to remain under the Destitution Domestic Violence concession, or (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;

• (b) at the end of sub-paragraph (hh) add “ or ”; and

• (c) omit sub-paragraphs (j) and (k) .

Amendment of the Housing Benefit Regulations

9

• (1) The Housing Benefit Regulations (Northern Ireland) 2006 are amended in accordance with paragraphs (2) and (3).

• (2) In regulation 10 (persons from abroad)—

• (a) for paragraph (5)(h) substitute—

(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is— (i) discretionary leave to enter or remain in the United Kingdom; (ii) leave to remain under the Destitution Domestic Violence concession, or (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;

• (b) at the end of paragraph (5)(j) add “ or ”; and

• (c) omit paragraphs (5)(k) and (kk) and (6).

• (3) In regulation 83 (amendment and withdrawal of claim)—

• (a) for paragraph (1) substitute—

(1) A person who has made a claim for benefit may amend it at any time before a determination has been made on the claim by notice in writing received at the designated office, by telephone call to a telephone number specified by the relevant authority under regulation 81(4A) (time and manner in which claims are to be made) or by the Department under regulation 81(4AA) or in such other manner as the Department may decide or accept.

• (b) omit paragraph (2); and

• (c) in paragraph (3) omit “or (2)”.

Amendment of the Housing Benefit Regulations (Persons who have attained the qualifying age for state pension credit) Regulations

10

• (1) The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006 are amended in accordance with paragraphs (2) and (3).

• (2) In regulation 10 (persons from abroad)—

• (a) for paragraph (5)(h) substitute—

(h) a person who has been granted leave or who is deemed to have been granted leave outside the rules made under section 3(2) of the Immigration Act 1971 where that leave is— (i) discretionary leave to enter or remain in the United Kingdom; (ii) leave to remain under the Destitution Domestic Violence concession, or (iii) leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005;

• (b) at the end of paragraph (5)(j) add “ or ”; and

• (c) omit paragraphs (5)(k) and (kk) and (6).

• (3) In regulation 64 (amendment and withdrawal of claim)—

• (a) for paragraph (1) substitute—

(1) A person who has made a claim for benefit may amend it at any time before a determination has been made on the claim by notice in writing received at the designated office, by telephone call to a telephone number specified by the relevant authority under regulation 62(5A) (time and manner in which claims are to be made) or by the Department under regulation 62(5B) or in such other manner as the Department may decide or accept.

• (b) omit paragraph (2); and

• (c) in paragraph (3) omit “or (2)”.

Amendment of the Employment and Support Allowance Regulations

11

• (1) The Employment and Support Allowance Regulations (Northern Ireland) 2008 are amended in accordance with paragraphs (2) to (33).

• (2) In regulation 2 (interpretation)—

• (a) in paragraph (1)—

• (i) omit the definition of “relevant disease”, and

• (ii) omit the definition of “service user group”;

• (b) after paragraph (7) add—

(8) References in these Regulations to a person or claimant participating as a service user are 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 their capacity as a user, potential user, carer of a user or person otherwise affected by the provisions of those services; or (b) the carer of a person consulted under sub-paragraph (a).

• (3) In regulation 4 (the end of the assessment phase)—

• (a) in paragraph (1) for “paragraph (2)” substitute “ paragraphs (2) and (3) ”; and

• (b) for paragraph (2) substitute—

(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 regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).

• (4) In regulation 5 (the assessment phase – previous claimants)—

• (a) in paragraph (1)(b) for “paragraphs (3) and (4)” substitute “ paragraphs (3), (3A) and (4) ”;

• (b) for paragraph (3) substitute—

(3) Where paragraph (3A) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work. (3A) 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 regulations 20, 25, 26, 29 or 33(2).

; and

• (c) in paragraph (4)(a) for “paragraph (3) does” substitute “ paragraphs (3) and (3A) do ”.

• (5) In the definition of “advanced education” in regulation 9(5) (condition relating to youth – claimants aged 20 or over but under 25)—

• (a) in paragraph (a) for “Technician” substitute “ Technology ”; and

• (b) in paragraph (b) for “Technician” substitute “ Technology ”.

• (6) In regulation 19 (determination of limited capability for work)—

• (a) in paragraph (3)—

• (i) for “any descriptor” substitute “ each descriptor ”, and

• (ii) after “listed in that Schedule” insert “ which applies in the claimant's case ”;

• (b) in paragraph (5)(c)(i) after “disablement;” insert “ or ”; and

• (c) in paragraph (6) for “apply” substitute “ applies ”.

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

• (a) renumber the existing provision as paragraph (1);

• (b) in that paragraph (1)(c) (i)—

• (i) omit “, or from work of such a kind,”, and

• (ii) after “made” insert “ or given ”;

• (c) in paragraph (1)(e)(i) after “period” insert “ (which has the meaning it has in section 35(2) of the Contributions and Benefits Act) ”;

• (d) in paragraph (1)(g) —

• (i) insert “ the claimant meets ” at the beginning of the paragraph, and

• (ii) for “apply to the claimant” substitute “ in accordance with regulation 34(2), (3) and (6) where applicable ”; and

• (e) after paragraph (1) insert—

(2) In this regulation, “relevant disease” means an infectious disease to which— (a) section 15(1) of the Public Health Act (Northern Ireland) 1967 (power to require person in contact with infectious disease to discontinue employment and compensation therefor.) applies; (b) regulations 8 and 9 of the Public Health (Ships) Regulations (Northern Ireland) 2008 (examination etc., of persons on ships and powers in respect of persons leaving ships) apply; or (c) regulations 7 and 8 of the Public Health (Aircraft) Regulations (Northern Ireland) 2008 (examination etc., of persons on aircraft and powers in respect of persons leaving aircraft) apply.

• (8) In regulation 21(2) (information required for determining capability for work) for “shall” substitute “ must ”.

• (9) In regulation 22 (failure to provide information in relation to limited capability for work)—

• (a) for paragraph (2)(a) substitute—

(a) the claimant was sent a further request at least 3 weeks after the date of the first request;

and

• (b) in paragraph (2)(b) omit from “the claimant” to “request, and”.

• (10) In regulation 23 (claimant may be called for a medical examination to determine whether the claimant has limited capability for work)—

• (a) in paragraph (2) for “listed” substitute “ mentioned ”; and

• (b) for paragraph (3) substitute—

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

• (11) In regulation 26(1) (claimants receiving certain regular treatment) after “engaged in” insert “ receiving ”.

• (12) After regulation 29(3) (exceptional circumstances) add—

(4) In this regulation “medical evidence” means— (a) evidence from a health care professional approved by the Department; 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.

• (13) In regulation 30 (conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made)—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) omit paragraph (2)(c) ; and

• (c) after paragraph (3) add—

(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 22 (failure to provide information in relation to limited capability for work), the claimant has since provided the information requested under that regulation.

• (14) In regulation 32(1) (certain claimants to be treated as not having limited capability for work) omit “for Defence”.