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The Employment and Support Allowance Regulations (Northern Ireland) 2016

Type Ni-Statutory-Rule

Publication 2016-05-03

Last updated 2025-07-19

State In force

Jurisdiction Northern Ireland

Department Government Printer for Northern Ireland

Source legislation.gov.uk

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Made: 3rd May 2016

Laid before Parliament: 10th May 2016

Coming into operation in accordance with regulation 1(2)

These powers are exercisable by the Secretary of State by virtue of Article 4(1)(b) of the Welfare Reform (Northern Ireland) Order 2015.

PART 1 — GENERAL

Citation, commencement and application

1

(1) These Regulations may be cited as the Employment and Support Allowance Regulations (Northern Ireland) 2016.

(2) These regulations come into operation immediately after the coming into operation of the Universal Credit Regulations[^f00005].

(3) They apply in relation to a particular case on any day on which Article 39(1)(b) of the Welfare Reform (Northern Ireland) Order 2015 (abolition of income-related employment and support allowance) is in operation and applies in relation to that case.

Interpretation

2

In these Regulations—

“the Act” means the Welfare Reform Act (Northern Ireland) 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; orany 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 7 days ending on such day as the Department may direct, but for the purposes of calculating any payment of income “benefit week” means the period of 7 days ending on—the day before the first day of the first period of seven days which—ends on such day as the Department may direct, andfollows the date of claim for an employment and support allowance; orthe 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[^f00006];

“carer support payment” means carer’s assistance given in accordance with the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023;

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

“the Children Order” means the Children (Northern Ireland) Order 1995[^f00007];

“the Claims and Payments Regulations 2016” means the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016[^f00008];

“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 167(1) of the Contributions and Benefits Act[^f00009];

“councillor” means a member of a district council;

“councillor’s allowance” means such payments for or in connection with the work which a person undertakes as a councillor;

“couple” means— two people who are married to, or civil partners of, each other and are members of the same household, ortwo people who are not married to, or civil partners of, each other but are living together as if spouses of each other;

“the Decisions and Appeals Regulations 1999” means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999[^f00010];

“the Decisions and Appeals Regulations 2016” means the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations (Northern Ireland) 2016[^f00011];

“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;

“the Disabled Persons (Employment) Act” means the Disabled Persons (Employment) Act (Northern Ireland) 1945[^f00012];

“employed earner” means a person who is gainfully employed in Northern Ireland or the Republic of Ireland either under a contract of service or in an office (including elective office) with general earnings;

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

“the Employment and Training Act” means the Employment and Training Act (Northern Ireland) 1950[^f00013];

“the Employment Rights Order” means the Employment Rights (Northern Ireland) Order 1996[^f00014];

“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[^f00015];

“health care professional” means—a registered medical practitioner;a registered nurse; oran occupational therapist or physiotherapist registered with a regulatory body established by an Order of Council under section 60 of the Health Act 1999[^f00016];

“the Health and Personal Social Services Order” means the Health and Personal Social Services (Northern Ireland) Order 1972[^f00017];

“the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987[^f00018];

“the Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance Regulations (Northern Ireland) 2016[^f00019];

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

“the Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations (Northern Ireland) 1976[^f00020];

“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; anda member of an establishment or organisation specified in Part 1 of that Schedule,but does not include any such person while absent on desertion;

“member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under either— Part 5 of the Employment and Support Allowance Regulations (Northern Ireland) 2008 other than by virtue of regulation 30 of those regulations; orPart 4 of these Regulations other than by virtue of regulation 26;

“the Mental Health Order” means the Mental Health (Northern Ireland) Order 1986[^f00021];

“national living wage” means the national living wage rate specified in regulation 4 of the National Minimum Wage Regulations 2015[^f00022] (national minimum wage rates);

“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 (Northern Ireland) Act 1993[^f00023];

“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[^f00024] (persons treated, or not treated, as engaged in remunerative work);

“partner” means—where a claimant is a member of a couple, the other member of that couple; orwhere 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, 4 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 27 of the (Claims and Payments) Regulations 2016;

“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 (Northern Ireland) Act 1993[^f00025];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[^f00026];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; andthe 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 138(2) of the Contributions and Benefits Act[^f00027] (child and qualifying young person);

“relative” means a close relative, grandparent, grandchild, 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” means a person who is gainfully employed in Northern Ireland or the Republic of Ireland otherwise than in employed earner’s employment (whether or not he is also employed in such employment);

“state pension credit” means a state pension credit under the State Pension Credit Act (Northern Ireland) 2002[^f00028];

“the Tax Credits Act” means the Tax Credits Act 2002[^f00029];

“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 12 months;

“training” means—training in pursuance of arrangements made under section 1 or 3 of the Employment and Training Act; orany 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 Department for Employment and Learning;to a person for that person’s maintenance or in respect of a member of that person’s family; andfor 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, a government department or approved by such department in relation to that person or so provided or approved by or on behalf of the Department for Employment and Learning,but it 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 provision or arrangements under sections 2 and 3 of the Disabled Persons (Employment) Act[^f00030] or section 1(1) of the Employment and Training Act[^f00031], or is training as a teacher;

“the Universal Credit Regulations” means the Universal Credit Regulations (Northern Ireland) 2016;

“voluntary organisation” means any association carrying on or proposing to carry on any activities otherwise than for the purpose of gain by the association or by individual members of the association;

“week” means a period of 7 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 (Northern Ireland) 2002[^f00032] (exclusion from benefits) applies, falls within the definition of qualifying young person in section 138 of the Contributions and Benefits Act.

Further interpretation

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 7 days.

(4) The Interpretation Act (Northern Ireland) 1954[^f00033] applies to these Regulations as it applies to an Act of the Assembly.

Rounding of fractions

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 — THE ASSESSMENT PHASE

The end of the assessment phase

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 the relevant period.

(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 relevant period—

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

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

(4) In this regulation “the relevant period” means the period of 13 weeks beginning with—

(a) the first day of the assessment phase as determined under section 24(2)(a) of the Act; or

(b) where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.

(5) In paragraph (4) “extended period of sickness” means a period in which the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996[^f00034] or regulation 46 of the Jobseeker’s Allowance Regulations (extended periods of sickness).

The assessment phase – previous claimants

6

(1) Where the circumstances in paragraph (3) 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 (4), (5) and (6), 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) For the purposes of paragraph (1), any period when the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations (Northern Ireland) 1996 or regulation 46 of the Jobseeker’s Allowance Regulations,

is to be treated as a period when the claimant was previously entitled to an employment and support allowance.

(3) The circumstances are that—

(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;

(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 as having limited capability for work, other than under regulation 26; or

(i) the claimants’ 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 as having limited capability for work, other than under regulation 26, and

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

(4) Where paragraph (5) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(5) 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.

(6) Where a person has made and is pursuing an appeal against a decision of the Department that embodies a determination that the claimant does not have limited capability for work—

(a) paragraphs (4) and (5) 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 appeal tribunal.

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 2016 which contains an express statement that the claimant is terminally ill;

(b) the case is a relevant linked case;

(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, and

(iii) that entitlement to income support ended only by virtue of the coming into operation, in relation to the claimant, of the Social Security (Lone Parents and Miscellaneous Amendments) Regulations (Northern Ireland) 2008[^f00035]; or

(d) a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act[^f00036] (further entitlement after time-limiting).

(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) Paragraph (2) applies to the following cases—

(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 2(3) of the Act) or they are a member of the work-related activity group 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 as having limited capability for work, other than under regulation 26;

(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 as having limited capability for work, other than under regulation 26, 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 as having limited capability for work, other than under regulation 26; 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) or they are a member of the work-related activity group 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 as having limited capability for work, other than under regulation 26.

(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 appeal tribunal.

PART 3 — CONDITIONS OF ENTITLEMENT

Conditions relating to national insurance and relevant earnings

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)[^f00037] 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.

Relaxation of the first contribution condition

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 or have entitlement to carer support payment 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 2 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[^f00038] was included in the award;

(i) is entitled to be credited with earnings or contributions in accordance with regulation 9D of the Social Security (Credits) Regulations (Northern Ireland) 1975[^f00039] (credits for certain periods of imprisonment or detention in legal custody), or

(ii) would have been so entitled had an application to the Department 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 (Northern Ireland) 1975[^f00040] (credits for certain spouses and civil partners of members of Her Majesty’s forces).

Condition relating to youth – claimants aged 20 or over but under 25

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 3 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 sub-paragraph 2(b) is a period which—

(a) began on or before a day at least 3 months before the day the claimant attained the age of 20; and

(b) ended no earlier than the beginning of the last 2 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 Department— as being a university, college or school, or as comparable to a university, college or school; or at an establishment that is not mentioned in paragraph (a) where the Department 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 claimants

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, entitlement to which was as a result of satisfying the condition set out in sub-paragraph (1) of that paragraph;

(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;

(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 3 complete tax years before the beginning of the relevant benefit year; and

(i) in respect of the last 2 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 presence

12

(1) The conditions prescribed for the purposes of paragraph 4(1)(c) of Schedule 1 to the Act as to residence or presence in Northern Ireland are that the claimant—

(a) is ordinarily resident in Northern Ireland;

(b) is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999[^f00041] or is a person to whom paragraph (3) applies;

(d) has been present in Northern Ireland 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 Northern Ireland where the claimant is absent from Northern Ireland 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; or

(b) 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 Northern Ireland 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;

(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[^f00042] ) 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 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 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.

Condition relating to youth – full-time education

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 Department, 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 year

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

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

PART 4 — LIMITED CAPABILITY FOR WORK

Determination of limited capability for work

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

(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

(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 specified 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 Department 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 Department wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;

(b) the Department 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 3 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 work

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 6 months after the date of the determination of capability for work, or

(iii) recovering from such treatment,

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

(i) excluded or abstains from work pursuant to a request or notice in writing lawfully made under a statutory provision, or

(ii) otherwise prevented from working pursuant to a statutory provision,

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 disease;

(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 the Contributions and Benefits Act), and

(ii) is entitled to a maternity allowance under section 35(1) or 35B(1) of the Contributions and Benefits Act[^f00043];

(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[^f00044].

(2) In this regulation, “relevant disease” means an infectious disease to which—

(a) section 15(1) of the Public Health Act (Northern Ireland) 1967[^f00045] (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[^f00046] (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[^f00047] (examination etc., of persons on aircraft and powers in respect of persons leaving aircraft) apply.

Information required for determining capability for work

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 ... 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

(2) Where the Department 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 patients) and 22 (claimants receiving certain treatment).

Failure to provide information in relation to limited capability for work

18

(1) Where a claimant fails without good cause to comply with the request referred to in regulation 17(1)(b), the 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 3 weeks after the date of the first request; and

(b) at least 1 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

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 Department to attend for a medical examination in person, by telephone or by video.

(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 7 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 regulation 18 or 19

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 Northern Ireland at the relevant time;

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

Hospital patients

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 on any day 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 for a period of 24 hours or longer 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 Department is satisfied that the claimant should be treated as having limited capability for work on that day.

Claimants receiving certain treatment

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

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

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 Department 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 day

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 throughout that day.

Night workers

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 circumstances

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 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.

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made

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) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined—

(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work, or

(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant 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 relevant decision of the Department, and that appeal has not yet been determined by an appeal 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, the claimant has since provided the information requested under that regulation.

(5) In this regulation a “relevant decision” means—

(a) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work; or

(b) a decision that embodies the first determination by the Department that the claimant does not have limited capability for work since a previous determination by the Department or appellate authority that the claimant does have limited capability for work.

(6) In this regulation “appellate authority” means an appeal tribunal, a Commissioner (as defined in section 167 of the Social Security Administration (Northern Ireland) Act 1992), the Court of Appeal or the Supreme Court.

Certain claimants to be treated as not having limited capability for work

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 1 or 3 of the Employment and Training Act.

(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 1 or 3 of the Employment and Training Act.

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

(a) it has previously been determined, within the 6 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, that the claimant does not have limited capability for work; and

(b) it appears to the Department 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 evidence

28

(1) Where the Department 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;

(d) the claimant has not, before whichever is the later of either the end of the period of 6 weeks beginning with the date of the Department’s request or the end of 6 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 Department 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 work

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.

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

the Department 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 Department wishes to determine whether there has been a relevant change of circumstances in relation to the claimant’s physical or mental condition;

(b) the Department 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 3 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.

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 6 months after the date of the determination of capability for work-related activity, or

(iii) recovering from such treatment,

and the Department 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.

(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 6 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, that the claimant does not have limited capability for work and work-related activity; and

(b) it appears to the Department 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.

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.

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 Department 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.

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 3 weeks after the date of the first request; and

(b) at least 1 week has passed since the further request was sent.

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 Department to attend for a medical examination in person, by telephone or by video.

(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 7 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 regulation 34 or 35

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 Northern Ireland at the relevant time;

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

PART 6 — EFFECT 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 allowance

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 2 half-days a week as a member of an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order;

(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 period) 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 by—

(i) an authority to a claimant who is caring for a child by virtue of arrangements made under Article 27(2)(a) of the Children Order (provision of accommodation and maintenance by an authority for children whom it is looking after) or by a voluntary organisation under Article 75(1)(a) of that Order (provision of accommodation by voluntary organisations), or

(ii) a juvenile justice centre, within the meaning of Article 51 of the Criminal Justice (Children) (Northern Ireland) Order 1998[^f00048], to a claimant who is caring for a child and whom that child is in the charge of under paragraph 4 of Schedule 2 to that Order;

(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) an authority,

(ii) a voluntary organisation,

(iii) the person concerned pursuant to Article 36(7) of the Health and Personal Social Services Order[^f00049], or

(iv) a juvenile justice centre within the meaning of Article 51(1) of the Criminal Justice (Children) (Northern Ireland) Order 1998.

(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 a district council or any body of which the claimant is a member by reason of being a councillor.

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 work

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 patients), 22 (claimants receiving 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 work

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 times the national living 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 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 times the national living wage, subject to paragraph (4)...;

(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 1 of the Employment and Training Act[^f00050];

(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 Department 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 Department for Employment and Learning (or a person providing services to that Department) 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 5 weeks immediately before the date of claim or the date on which a superseding decision is made under Article 11 of the 1998 Order[^f00051] (decisions superseding earlier decisions), 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—

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

(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of work on entitlement to an employment and support allowance where claimant is receiving certain treatment

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 — CLAIMANT RESPONSIBILITIES

Interpretation

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 Department 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 entitlement

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[^f00053] 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[^f00054] (sanctions) and regulations 50 to 60 of these Regulations do not apply to such a person.

Sanction ceases to apply to employment and support allowance

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;

(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 acceptance

44

(1) For the purposes of section 1(3)(aa) of the Act[^f00055], a claimant who has accepted a claimant commitment within such period after making a claim for an employment and support allowance as the Department 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 Department 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 Department 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 Department considers that the request is reasonable.

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

(a) electronically;

(b) by telephone; or

Claimant commitment – exceptions

45

(1) A claimant may be entitled to an employment and support allowance without having accepted a claimant commitment if the Department 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.

(2) A claimant may be entitled to an employment and support allowance without having accepted a claimant commitment if the claimant is terminally ill.

Purposes of a work-focused interview

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;

(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.

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 or have entitlement to carer support payment;

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

(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 would do so but for the fact that—

(i) their earnings have exceeded the limit prescribed for the purposes of that allowance; or

(ii) they are—

(aa) resident, or treated as resident, in Scotland; or

(bb) resident outside of Northern Ireland and have a genuine and sufficient link to Scotland; or

(b) is entitled to carer support payment.

(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[^f00056];

“sufficient” has the meaning given in paragraph 3 of Schedule 1 to the Carer’s Assistance (Carer Support Payment) (Scotland) Regulations 2023;

“without parental support” means the person is not being looked after by an 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, orthat the person would suffer significant harm if the person lived with them; oris 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, oris prohibited from entering or re-entering Northern Ireland.

Claimants subject to work-focused interview requirement only

48

(1) For the purposes of section 11E(1)(a) of the Act (persons subject to work-focused interview requirement only) the prescribed age is 3.

(2) A claimant falls within section 11E of the Act 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 Department 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 Department 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 8 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 an authority because of concerns in relation to the child’s welfare.

Victims of domestic violence

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[^f00057] 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

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The Employment and Support Allowance Regulations (Northern Ireland) 2016

PART 1 — GENERAL

Citation, commencement and application

1

Interpretation

2

Further interpretation

3

Rounding of fractions

4

PART 2 — THE ASSESSMENT PHASE

The end of the assessment phase

5

The assessment phase – previous claimants

6

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 apply

7

PART 3 — CONDITIONS OF ENTITLEMENT

Conditions relating to national insurance and relevant earnings

8

Relaxation of the first contribution condition

9

Condition relating to youth – claimants aged 20 or over but under 25

10

Condition relating to youth – previous claimants

11

Condition relating to youth – residence or presence

12

Condition relating to youth – full-time education

13

Modification of the relevant benefit year

14

PART 4 — LIMITED CAPABILITY FOR WORK

Determination of limited capability for work

15

Certain claimants to be treated as having limited capability for work

16

Information required for determining capability for work

17

Failure to provide information in relation to limited capability for work

18

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work

19

Matters to be taken into account in determining good cause in relation to regulation 18 or 19

20

Hospital patients

21

Claimants receiving certain treatment

22

Claimant to be treated as having limited capability for work throughout a day

23

Night workers

24

Exceptional circumstances

25

Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made

26

Certain claimants to be treated as not having limited capability for work

27

Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidence

28

Additional circumstances where claimants are to be treated as having limited capability for work

29

PART 5 — LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY

Determination of limited capability for work-related activity

30

Certain claimants to be treated as having, or not having, limited capability for work-related activity

31

Relevant linked cases – limited capability for work-related activity

32

Information required for determining capability for work-related activity

33

Failure to provide information in relation to work-related activity

34

Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity

35

Matters to be taken into account in determining good cause in relation to regulation 34 or 35

36

PART 6 — EFFECT 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 allowance