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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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(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

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

(2) A person has recently been a victim of domestic violence if a period of 6 months has not expired since the violence was inflicted or threatened.

(3) The circumstances are that—

(a) the claimant notifies the Department, in such manner as the Department specifies, that domestic violence has been inflicted on or threatened against the claimant by a person specified in paragraph (4) during the period of 6 months ending on the date of the notification;

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

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

(d) as soon as possible, and no later than 1 month, after the date of the notification the claimant provides evidence from a person acting in an official capacity which demonstrates that—

(i) the claimant’s circumstances are consistent with those of a person who has had domestic violence inflicted on or threatened against them during the period of 6 months ending on the date of the notification, and

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

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

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

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

(5) In this regulation—

“coercive behaviour” means an act of assault, humiliation or intimidation or other abuse that is used to harm, punish or frighten the victim;

“controlling behaviour” means an act designed to make a person subordinate or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance or escape or regulating their everyday behaviour;

“domestic violence” means any incident, or pattern of incidents, of controlling behaviour, coercive behaviour, violence or abuse, including but not limited to—psychological abuse;physical abuse;sexual abuse;emotional abuse;financial abuse,regardless of the gender or sexuality of the victim;

“person acting in an official capacity” means a person who is a member of a profession regulated by a body mentioned in section 25(3) of the National Health Service Reform and Health Care Professions Act 2002[^f00058], a police officer, a registered social worker, the claimant’s employer, a representative of the claimant’s trade union or any public, voluntary or charitable body which has had direct contact with the claimant in connection with domestic violence;

“registered social worker” means a person registered as a social worker in a register maintained by—the Health and Care Professions Council; Social Care Wales; the Scottish Social Services Council; orthe Northern Ireland Social Care Council.

PART 8 — SANCTIONS

Interpretation

50

For the purposes of this Part—

“current sanctionable failure” means a failure of the following kinds in relation to which the Department has not yet determined whether the amount of an award of benefit is to be reduced—a sanctionable failure;a JSA sanctionable failure; ora UC sanctionable failure;

“JSA sanctionable failure” means a failure by a claimant which is sanctionable under Article 8K of the Jobseekers Order[^f00059];

“low-level sanction” means a reduction of an employment and support allowance in accordance with section 11J of the Act for a sanctionable failure by the claimant to comply with—a work-focused interview requirement imposed under section 11F(2) of the Act (persons subject to work preparation and work-focused interview requirement);a work preparation requirement imposed under section 11F(2) of the Act; ora requirement under section 11G of the Act (connected requirements);

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

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

“relevant failure” means—a sanctionable failure giving rise to a low-level sanction;a UC sanctionable failure giving rise to a sanction under Article 32 of the Welfare Reform (Northern Ireland) Order 2015 to which regulation 101 of the Universal Credit Regulations (Northern Ireland) 2016 applies; ora JSA sanctionable failure giving rise to a sanction under Article 8K of the Jobseekers (Northern Ireland) Order 1995 to which regulation 22 of the Jobseeker’s Allowance Regulations (Northern Ireland) 2016 applies;

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

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

“UC sanctionable failure” means a failure by a claimant which is sanctionable under Article 31 or 32 of the Welfare Reform (Northern Ireland) Order 2015.

General principles for calculating reduction periods

51

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

(2) Reduction periods are to run consecutively.

(3) Where the reduction period calculated in relation to a sanctionable failure in accordance with regulation 52 or 53 would result in the total outstanding reduction period exceeding 546 days, the number of days in the reduction period in relation to that failure is to be adjusted so that 546 days is not exceeded.

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

Low-level sanction

52

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

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

(i) the day before the date on which the claimant meets a compliance condition specified by the Department,

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

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

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

whichever is soonest; and

(b) in the circumstances described in the first column of the following table, the number of days set out in the second column.

Circumstances applicable to claimant’s case	Number of days
Where there has been no previous relevant failure by the claimant.	7 days
Where there have been one or more previous relevant failures by the claimant and the date of the most recent previous relevant failure is not within 365 days beginning with and including the date of the current sanctionable failure.	7 days
Where there have been one or more previous relevant failures by the claimant and the date of the most recent previous relevant failure is within 365 days, but not within 14 days, beginning with and including the date of the current sanctionable failure and the reduction period applicable to the most recent previous relevant failure is—
(a) 7 days	14 days
(b) 14 days(c) 28 days	28 days28 days
Where there have been one or more previous relevant failures by the claimant and the date of the most recent previous relevant failure is within 14 days beginning with and including the date of the current sanctionable failure and the reduction period applicable to the most recent previous relevant failure is–
(a) 7 days	7 days
(b) 14 days(c) 28 days	14 days28 days.

Lowest-level sanction

53

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

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

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

whichever is soonest.

Start of the reduction

54

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

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

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

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

Reduction period to continue where an award of an employment and support allowance terminates

55

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

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

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

(2) Paragraph (3) applies where—

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

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

(3) Where this paragraph applies—

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

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

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

Suspension of a reduction where a fraud sanction applies

56

(1) A reduction in the amount of an award of an employment and support allowance in accordance with section 11J of the Act is to be suspended for any period during which section 5B or 6 of the Social Security Fraud Act (Northern Ireland) 2001[^f00061] applies to the award.

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

Termination of a reduction

57

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

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

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

(2) The termination of the reduction has effect—

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

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

(3) The claimant is in paid work for the purposes of paragraph (1) where their weekly earnings are at least equal to 16 multiplied by the amount that a person of the same age as the claimant would be paid at the hourly rate applicable under regulation 4 or regulation 4A(1)(a) to (c) of the National Minimum Wage Regulations 2015[^f00062].

Amount of reduction for each benefit week

58

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

Step 1

Take the number of days—

(a) in the benefit week; or

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

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

Step 2

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

Step 3

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

Daily reduction rate

59

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

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

Lower daily reduction rate

60

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

(a) section 11E of the Act;

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

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

Sanctions where universal credit ends and the person is entitled to an employment and support allowance

61

(1) This regulation applies where—

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

(b) there is a reduction relating to the person’s award of universal credit under Article 31 or 32 of the Welfare Reform (Northern Ireland) Order 2015; and

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

(3) The period for which the reduction relating to the award of an employment and support allowance is to have effect is the number of days which apply to the person under regulation 99, 100, 101 or 102 of the Universal Credit Regulations minus any such days which—

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

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

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

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

(i) section 11E of the Act,

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

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

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

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

PART 9 — AMOUNTS OF ALLOWANCE

Prescribed amounts

62

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

(a) where the claimant satisfies the conditions set out in section 2(2) or (3) of the Act or the claimant is a member of the work-related activity group and satisfies the conditions set out in Part 1 of Schedule 1 to the Act, £92.05; or

(b) where the claimant does not satisfy the conditions set out in section 2(2) or (3) of the Act or the claimant is a member of the work-related activity group and satisfies the conditions set out in Part 1 of Schedule 1 to the Act—

(i) where the claimant is aged not less than 25, £92.05, or

(ii) where the claimant is aged less than 25, £72.90.

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

(a) the work-related activity component is £36.55 and

(b) the support component is £48.50

Subject to regulation 63 the amount of the support component is £48.50.

Special cases

63

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

(a) satisfies the condition in paragraph (3); or

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

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

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

(a) under regulation 62(1) reduced by 20 per cent.; and

(b) under regulation 62(2).

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

(a) the claimant is being detained under Article 53 of the Mental Health Order[^f00063] (removal to hospital of persons serving sentences of imprisonment etc.); and

(b) in any case where there is in relation to the claimant a release date within the meaning of Article 56(3) of that Order[^f00064] (further provisions as to prisoners under sentence), the claimant is being detained on or before the day which the Department of Justice certifies to be that release date.

(4) In this regulation—

“patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 2005[^f00065];

“prisoner” means a person who— is detained in custody pending trial or sentence on conviction or under a sentence imposed by a court; or is on temporary release in accordance with the provisions of the Prison Act (Northern Ireland) 1953[^f00066], other than a person who is detained in hospital under the provisions of the Mental Health Order.

(5) For the purposes of this regulation—

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

(b) where a person satisfies regulation 94 for more than 6 weeks, they are a person in hardship only for the first 6 weeks.

Permanent health insurance

64

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

Financial Assistance Scheme

65

(1) For the purposes of sections 2(1)(c) and 3(3) of the Act “pension payment” is to include a Financial Assistance Scheme payment.

(2) In this regulation “Financial Assistance Scheme payment” means a payment made under the Financial Assistance Scheme Regulations 2005[^f00067].

Councillor’s allowance

66

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

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

(b) the prescribed bodies carrying out public or local functions are district councils.

Deductions for pension payment and PPF payment

67

(1) Where—

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

(b) there is—

(i) a pension payment,

(ii) a PPF periodic payment, or

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

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

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

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

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

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

Payments treated as not being payments to which section 3 applies

68

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

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

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

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

(d) any pension payment made under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003[^f00068];

(e) any guaranteed income payment (which means a payment made under Article 15(1)(a) or 29(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011[^f00069];

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

Deductions for councillor’s allowance

69

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

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

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

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

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

Date from which payments are to be taken into account

70

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

Date from which a change in the rate of the payment takes effect

71

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

Calculation of payment made other than weekly

72

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

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

Effect of statutory maternity pay on an employment and support allowance

73

(1) This regulation applies where—

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

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

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

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

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

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

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

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

Effect of statutory adoption pay on an employment and support allowance

74

(1) This regulation applies where—

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

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

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

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

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

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

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

(3) Where by virtue of paragraph (2) a claimant is entitled to an employment and support allowance for any week (including part of a week), the total amount of employment and support allowance payable to that claimant for that week is to be reduced by an amount equivalent to any statutory adoption pay to which that claimant is entitled in accordance with Part 12ZB of the Contributions and Benefits Act[^f00070] for the same week (or equivalent part of a week where entitlement to an employment and support allowance is for part of a week), and only the balance, if any, of the employment and support allowance is to be payable to that claimant.

Effect of statutory shared parental pay on an employment and support allowance

75

(1) This regulation applies where—

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

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

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

(b) on any day during the statutory shared parental pay period—

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

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

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

(3) Where by virtue of paragraph (2) a person is entitled to an employment and support allowance for any week (including part of a week), the total amount of such benefit payable to that claimant for that week is to be reduced by an amount equivalent to any statutory shared parental pay to which that claimant is entitled in accordance with Part 12ZC of the Contributions and Benefits Act[^f00071] for the same week (or equivalent part of a week where entitlement to an employment and support allowance is for part of a week), and only the balance, if any, of the employment and support allowance is to be payable to that claimant.

(4) In this regulation “statutory shared parental pay period” means the weeks in respect of which statutory shared parental pay is payable to a person under section 167ZZ2(2) of the Contributions and Benefits Act.

PART 10 — INCOME AND EARNINGS

Calculation of earnings derived from employed earner’s employment and income other than earnings

76

(1) Earnings derived from employment as an employed earner and income which does not consist of earnings are to be taken into account over a period determined in accordance with the following provisions of this regulation and at a weekly amount determined in accordance with regulation 79 (calculation of weekly amount of income).

(2) Subject to the following provisions of this regulation, the period over which a payment is to be taken into account is to be—

(a) where the payment is monthly, a period equal to the number of weeks beginning with the date on which the payment is treated as paid and ending with the date immediately before the date on which the next monthly payment would have been treated as paid whether or not the next monthly payment is actually paid;

(b) where the payment is in respect of a period which is not monthly, a period equal to the length of the period for which payment is made;

(c) in any other case, a period equal to such number of weeks as is equal to the number obtained (see paragraph (9)) by applying the formula—

$E J$

where—

E is the net earnings;

J is the amount of an employment and support allowance which would be payable had the payment not been made;

and that period is to begin on the date on which the payment is treated as paid under regulation 78 (date on which income is to be treated as paid).

(3) Where—

(a) earnings are derived from the same source but are not of the same kind; and

(b) but for this paragraph, the periods in respect of which those earnings would fall to be taken into account overlap, wholly or partly,

those earnings are to be taken into account over a period equal to the aggregate length of those periods, and that period is to begin with the earliest date on which any part of those earnings would be treated as paid under regulation 78.

(4) In a case to which paragraph (5) applies, earnings under regulation 80 (earnings of employed earners) are to be taken into account in the following order of priority—

(a) earnings normally derived from the employment;

(b) any payment to which paragraph (1)(b) or (c) of that regulation applies;

(d) any payment to which paragraph (1)(d) of that regulation applies.

(5) Where earnings to which regulation 80(1)(b) to (d) applies are paid in respect of part of a day, those earnings are to be taken into account over a period equal to a day.

(6) Any earnings to which regulation 80(1)(j) applies which are paid in respect of, or on the termination of, part-time employment, are to be taken into account over a period of one week.

(7) For the purposes of this regulation the claimant’s earnings are to be calculated in accordance with regulations 80 and 81.

(8) For the purposes of paragraph 10 of Schedule 2 to the Act (effect of work), the income which consists of earnings of a claimant is to be calculated on a weekly basis by determining the weekly amount of those earnings in accordance with regulations 77 to 84.

(9) For the purposes of the number obtained as mentioned in paragraph (2)(c), any fraction is to be treated as a corresponding fraction of a week.

Calculation of earnings of self-employed earners

77

(1) Where a claimant’s income consists of earnings from employment as a self-employed earner, the weekly amount of the claimant’s earnings is to be determined by reference to the claimant’s average weekly earnings from that employment—

(a) over a period of one year; or

(b) where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period as may, in any particular case, enable the weekly amount of the claimant’s earnings to be determined more accurately.

(2) For the purposes of this regulation the claimant’s earnings are to be calculated in accordance with regulations 82 to 84.

Date on which income is treated as paid

78

A payment of income to which regulation 76 (calculation of earnings derived from employed earner’s employment and income other than earnings) applies is to be treated as paid—

(a) in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;

(b) in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.

Calculation of weekly amount of income

79

(1) For the purposes of regulation 76 (calculation of earnings derived from employed earner’s employment and income other than earnings) and regulations 64 to 72 (deductions from employment and support allowance), subject to paragraphs (2) to (5), where the period in respect of which a payment is made—

(a) does not exceed a week, the weekly amount is to be the amount of that payment;

(b) exceeds a week, the weekly amount is to be determined—

(i) in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii) in a case where that period is 3 months, by multiplying the amount of the payment by 4 and dividing the product by 52;

(iii) in a case where that period is a year and the payment is income, by dividing the amount of the payment by 52;

(iv) in any other case, by multiplying the amount of the payment by 7 and dividing the product by the number equal to the number of days in the period in respect of which it is made.

(2) Where a payment for a period not exceeding a week is treated under regulation 78(a) (date on which income is treated as paid) as paid before the first benefit week and a part is to be taken into account for some days only in that week (the relevant days), the amount to be taken into account for the relevant days is to be calculated by multiplying the amount of the payment by the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(3) Where a payment is in respect of a period equal to or in excess of a week and a part thereof is to be taken into account for some days only in a benefit week (the relevant days), the amount to be taken into account for the relevant days is to be calculated by multiplying the amount of the payment by the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(4) Except in the case of a payment which it has not been practicable to treat under regulation 78(b) (date on which income is treated as paid) as paid on the first day of the benefit week in which it is due to be paid, where a payment of income from a particular source is or has been paid regularly and that payment falls to be taken into account in the same benefit week as a payment of the same kind and from the same source, the amount of that income to be taken into account in any one benefit week is not to exceed the weekly amount determined under paragraph (1)(a) or (b) of the payment which under regulation 78(b) is treated as paid first.

(5) Where the amount of the claimant’s income fluctuates and has changed more than once, or a claimant’s regular pattern of work is such that the claimant does not work every week, the foregoing paragraphs may be modified so that the weekly amount of the claimant’s income is determined by reference to the claimant’s average weekly income—

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

(b) in any other case, over a period of 5 weeks or such other period as may, in the particular case, enable the claimant’s average weekly income to be determined more accurately.

Earnings of employed earners

80

(1) Subject to paragraphs (2) and (3), “earnings” means, in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—

(a) any bonus or commission;

(b) any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of the claimant’s employment by reason of redundancy;

(d) any holiday pay except any payable more than 4 weeks after the termination or interruption of employment;

(e) any payment by way of a retainer;

(f) any payment made by the claimant’s employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant’s employer in respect of—

(i) travelling expenses incurred by the claimant between the claimant’s home and place of employment,

(ii) expenses incurred by the claimant under arrangements made for the care of a member of the claimant’s family owing to the claimant’s absence from home;

(g) any award of compensation made under Article 146(4) or 151(3)(a) of the Employment Rights Order[^f00072] (the remedies: orders and compensation enforcement of order and compensation);

(h) any payment made or remuneration paid under Article 60, 66, 96, 100 or 102 of the Employment Rights Order (right to guarantee payments, remuneration on suspension on medical or maternity grounds, complaints to industrial tribunals);

(i) any such sum as is referred to in section 112(3) of the Contributions and Benefits Act[^f00073] (certain sums to be earnings for social security purposes);

(j) where a payment of compensation is made in respect of employment which is part-time employment, the amount of the compensation;

(k) the amount of any payment by way of a non-cash voucher which has been taken into account in the computation of a person’s earnings in accordance with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations 2001[^f00074];

(l) any payment made under the legislation of, or under any scheme operating in, the Republic of Ireland which is analogous to any income to which this paragraph relates.

(2) “Earnings” are not to include—

(a) subject to paragraph (3), any payment in kind;

(b) any remuneration paid by or on behalf of an employer to the claimant in respect of a period throughout which the claimant is on maternity leave, paternity leave, adoption leave (which means a period of absence from work on ordinary or additional adoption leave under Article 107A or 107B of the Employment Rights Order [^f00075]), shared parental leave under Article 107E or 107G of that Order , parental bereavement leave under Article 112EA of that Order or is absent from work because the claimant is ill;

(c) any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(d) any occupational pension (which means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases);

(e) any lump sum payment made under the Iron and Steel Re-adaptation Benefits Scheme[^f00076];

(f) any payment in respect of expenses arising out of the claimant participating as a service user.

(g) any bounty paid at intervals of at least one year and derived from employment as—

(i) an auxiliary coastguard in respect of coast rescue activities;

(ii) a person engaged part-time in the manning or launching of a lifeboat;

(iii) a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001[^f00077].

(3) Paragraph (2)(a) is not to apply in respect of any non-cash voucher referred to in paragraph(1)(k).

(4) In this regulation—

“compensation” means any payment made in respect of, or on the termination of, employment in a case where a claimant has not received or received only part of a payment in lieu of notice due or which would have been due to the claimant had that claimant not waived the right to receive it, other than—any payment specified in paragraph (1)(a) to (i) or (l);any payment specified in paragraph (2)(a) to (f);any redundancy payment within the meaning of Article 170(1) of the Employment Rights Order; andany refund of contributions to which that person was entitled under an occupational pension scheme;

“paternity leave” means a period of absence from work on paternity leave by virtue of Article 112A or 112B[^f00078] of the Employment Rights Order.

(5) The reference in paragraph (2)(f) to a person participating as a service user is to—

(a) a person who is being consulted by or on behalf of—

(i) a body which has a statutory duty to provide services in the field of health, social care or social housing, or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in the person’s capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services;

(b) a person who is being consulted by or on behalf of—

(i) the Department in relation to any of the Department’s functions in the field of social security or child support or under section 1 of the Employment and Training Act[^f00079] (general functions of the Department as to employment and training for employment), or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such functions,

in their capacity as a person affected or potentially affected by the exercise of those functions or the carer of such a person; or

Calculation of net earnings of employed earners

81

(1) For the purposes of regulation 76 (calculation of earnings derived from employed earner’s employment and income other than earnings) the earnings of a claimant derived from employment as an employed earner to be taken into account are the claimant’s net earnings.

(2) For the purposes of paragraph (1) net earnings are to be calculated by taking into account the gross earnings of the claimant from that employment less—

(a) any amount deducted from those earnings by way of—

(i) income tax,

(ii) primary Class 1 contributions under section 6(1)(a) of the Contributions and Benefits Act[^f00080];

(b) one half of any sum paid by the claimant in respect of a pay period by way of a contribution towards an occupational or personal pension scheme.

(3) Where the claimant is an employed earner in the Republic of Ireland the amounts to be deducted for income tax and primary Class 1 contributions under this regulation shall be such amounts as, in the opinion of the Department, would have been deducted had the claimant been employed in Northern Ireland.

Earnings of self-employed earners

82

(1) Subject to paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross receipts of the employment and include any allowance paid under sections 2 and 3 of the Disabled Persons (Employment) Act[^f00081], section 1 of the Employment and Training Act[^f00082] or any equivalent allowance paid under Republic of Ireland legislation to the claimant for the purpose of assisting the claimant in carrying on the claimant’s business.

(2) “Earnings” do not include—

(a) where a claimant is involved in providing board and lodging accommodation for which a charge is payable, any payment by way of such a charge;

(b) any award made by one of the Sports Councils named in section 23(2) of the National Lottery etc. Act 1993[^f00083] out of sums allocated to it for distribution under that section.

(3) In this regulation, “board and lodging” means—

(a) accommodation provided to a person or, if the person is a member of a family, to that person or any other member of that person’s family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of that person’s family) and are consumed in that accommodation or associated premises; or

(b) accommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,

except accommodation provided by a close relative of the person or any other member of the person’s family, or other than on a commercial basis.

Calculation of net profit of self-employed earners

83

(1) For the purposes of regulation 77 (calculation of earnings of self-employed earners), the earnings of a claimant to be taken into account are to be—

(a) in the case of a self-employed earner who is engaged in employment on that self-employed earner’s own account, the net profit derived from that employment;

(b) in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within the meaning of the Social Security (Mariners’ Benefits) Regulations (Northern Ireland) 1975[^f00084], that self-employed earner’s share of the net profit derived from that employment less—

(i) an amount in respect of income tax and of National Insurance contributions payable under the Contributions and Benefits Act calculated in accordance with regulation 84 (deduction of tax and contributions for self-employed earners); and

(ii) one half of any contribution paid in the period that is relevant under regulation 77 (calculation of earnings of self-employed earners) in respect of a personal pension scheme.

(2) For the purposes of paragraph (1)(a) the net profit of the employment, except where paragraph (8) applies, is to be calculated by taking into account the earnings of the employment over the period determined under regulation 77 less—

(a) subject to paragraphs (4) to (6), any expenses wholly and exclusively defrayed in that period for the purposes of that employment;

(b) an amount in respect of—

(i) income tax, and

(ii) National Insurance contributions payable under the Contributions and Benefits Act,

calculated in accordance with regulation 84; and

(c) one half of any contribution paid in the period that is relevant under regulation 77 in respect of a personal pension scheme.

(3) For the purposes of paragraph (1)(b), the net profit of the employment is to be calculated by taking into account the earnings of the employment over the period determined under regulation 77 less, subject to paragraphs (4) to (6), any expenses wholly and exclusively defrayed in that period for the purpose of that employment.

(4) Subject to paragraph (5), a deduction is not to be made under paragraph (2)(a) or (3) in respect of—

(a) any capital expenditure;

(b) the depreciation of any capital asset;

(d) any loss incurred before the beginning of the period determined under regulation 77;

(e) the repayment of capital on any loan taken out for the purposes of the employment;

(f) any expenses incurred in providing business entertainment.

(5) A deduction is to be made under paragraph (2)(a) or (3) in respect of the repayment of capital on any loan used for—

(a) the replacement in the course of business of equipment or machinery;

(b) the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair; and

(6) The Department must refuse to make a deduction in respect of any expenses under paragraph (2)(a) or (3) where it is not satisfied that the expense has been defrayed or, having regard to the nature of the expense and its amount, that it has been reasonably incurred.

(7) A deduction—

(a) is not to be made under paragraph (2)(a) or (3) in respect of any sum unless it has been expended for the purposes of the business;

(b) is to be made under paragraph (2)(a) or (3) in respect of—

(i) the excess of any Value Added Tax paid over Value Added Tax received in the period determined under regulation 77;

(ii) any income expended in the repair of an existing asset except to the extent that any sum is payable under an insurance policy for its repair;

(iii) any payment of interest on a loan taken out for the purposes of the employment.

(8) Where a claimant is engaged in employment as a child minder the net profit of the employment is to be one third of the earnings of that employment, less—

(a) an amount in respect of—

(i) income tax; and

(ii) National Insurance contributions payable under the Contributions and Benefits Act,

calculated in accordance with regulation 84; and

(b) one half of any contribution paid in respect of a personal pension scheme.

(9) Notwithstanding regulation 77 and the foregoing paragraphs, the Department may assess any item of a claimant’s income or expenditure over a period other than that determined under regulation 77 as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.

(10) Where a claimant is engaged in employment as a self-employed earner and that claimant is also engaged in one or more other employments as a self-employed or employed earner, any loss incurred in any one of the claimant’s employments is not to be offset against the claimant’s earnings in any other of the claimant’s employments.

(11) Where the claimant is a self-employed earner in the Republic of Ireland the amounts to be deducted for income tax and National Insurance contributions under this regulation are to be such amounts as, in the opinion of the Department, would have been deducted had the claimant been employed in Northern Ireland.

Deduction of tax and contributions for self-employed earners

84

(1) Subject to paragraph (2), the amount to be deducted in respect of income tax under regulation 83(1)(b)(i), (2)(b)(i) or (8)(a)(i) (calculation of net profit of self-employed earners) is to be calculated on the basis of the amount of chargeable income and as if that income were assessable to income tax at the basic rate , or in the case of a Scottish taxpayer, the Scottish basic rate, of tax less only the personal reliefs to which the claimant is entitled under Chapters 2, 3 and 3A of Part 3 of the Income Tax Act 2007 as are appropriate to the claimant’s circumstances.

(2) If the period determined under regulation 77 is less than a year, the earnings to which the basic rate , or the Scottish basic rate, of tax is to be applied and the amount of the personal allowance deductible under paragraph (1) is to be calculated on a pro rata basis.

(3) The amount to be deducted in respect of National Insurance contributions under regulation 83(1)(b)(i), (2)(b)(ii) or (8)(a)(ii) is to be the total of—

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

(b) the amount of Class 4 contributions (if any) which would be payable under section 15 of that Act[^f00088] (Class 4 contributions recoverable under the Income Tax Acts) at the percentage rate applicable at the date of claim on so much of the chargeable income as exceeds the lower limit but does not exceed the upper limit of profits applicable for the tax year in which the date of claim falls; but if the assessment period is less than a year, those limits are to be reduced pro rata.

(4) In this regulation—

“assessment period” means the period mentioned in regulation 77 over which the weekly amount of the claimant’s earnings is to be determined;

“basic rate” has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);

“chargeable income” means—except where paragraph (b) applies, the earnings derived from the employment less any expenses deducted under regulation 83(2)(a) or (3), as the case may be;in the case of employment as a child minder, one third of the earnings of that employment.

“Scottish basic rate” means the rate of income tax of that name calculated in accordance with section 6A of the Income Tax Act 2007;

“Scottish taxpayer” has the same meaning as in Chapter 2 of Part 4A of the Scotland Act 1998.

PART 11 — SUPPLEMENTARY PROVISIONS

Waiting days

85

(1) The number of days prescribed for the purposes of paragraph 2 of Schedule 2 to the Act (days during which a person is not entitled to an employment and support allowance at the beginning of a period of limited capability for work) is 7.

(2) Paragraph 2 of Schedule 2 to the Act does not apply where—

(a) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support, incapacity benefit, severe disablement allowance, state pension credit, a jobseeker’s allowance, a carer’s allowance, carer support payment, statutory sick pay or a maternity allowance coming to an end;

(b) the claimant is terminally ill and has—

(i) made a claim expressly on the ground of being terminally ill, or

(ii) made an application for supersession or revision in accordance with the Decisions and Appeals Regulations 1999 or the Decisions and Appeals Regulations 2016 which contains an express statement that the claimant is terminally ill;

(c) the claimant has been discharged from being a member of Her Majesty’s forces and 3 or more days immediately before that discharge were days of sickness absence from duty, which are recorded by the Secretary of State; or

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

Linking period

86

Any period of limited capability for work which is separated from another such period by not more than 12 weeks is to be treated as a continuation of the earlier period.

Claimants appealing a decision

87

(1) This regulation applies where a claimant has made and is pursuing an appeal against a relevant decision of the Department as defined in regulation 26.

(2) Subject to paragraph (3), where this regulation applies, a determination of limited capability for work by the Department under regulation 15 must not be made until the appeal is determined by the appeal tribunal.

(3) Paragraph (2) does not apply where either—

(a) the claimant suffers from some specific disease or bodily or mental disablement from which the claimant was not suffering when entitlement began; or

(b) a disease or bodily or mental disablement from which the claimant was suffering when entitlement began has significantly worsened.

(4) Where this regulation applies and the Department makes a determination—

(a) in a case to which paragraph (3) applies (including where the determination is not the first such determination) that the claimant does not have or, by virtue of regulation 18 or 19, is to be treated as not having limited capability for work; or

(b) subsequent to a determination that the claimant is to be treated as having limited capability for work by virtue of a provision of these Regulations other than regulation 26, that the claimant is no longer to be so treated,

this regulation and regulation 26 have effect as if that determination had not been made.

(5) Where this regulation applies and—

(a) the claimant is entitled to an employment and support allowance by virtue of being treated as having limited capability for work in accordance with regulation 26;

(b) neither of the circumstances in paragraph (3) applies, or, subsequent to the application of either of those circumstances, the claimant has been determined not to have limited capability for work; and

the claimant is to be treated as not having limited capability for work with effect from the day specified in paragraph (6).

(6) The day specified for the purposes of paragraph (5) is the first day of the benefit week following the date on which the Department receives the appeal tribunal’s notification that the appeal is dismissed, withdrawn or struck out.

(7) Where a claimant’s appeal is successful, subject to paragraph (8), any finding of fact or other determination embodied in or necessary to the decision of the appeal tribunal or on which the appeal tribunal’s decision is based is to be conclusive for the purposes of the decision of the Department, in relation to an award made in a case to which this regulation applies, as to whether the claimant has limited capability for work or limited capability for work-related activity.

(8) Paragraph (7) does not apply where, due to a change of circumstances after entitlement began, the Department is satisfied that it is no longer appropriate to rely on such finding or determination.

Absence from Northern Ireland

88

(1) A claimant who is entitled to an employment and support allowance is to continue to be so entitled during a period of temporary absence from Northern Ireland only in accordance with regulations 89 to 92A.

(1A) Where a claimant is temporarily absent from Northern Ireland, except where the circumstances in regulation 91 or 92 apply, the total period of absence where the claimant is treated as present in Northern Ireland will not exceed 26 weeks.

(2) A claimant who continues to be entitled to an employment and support allowance during a period of temporary absence is not disqualified for receiving that allowance during that period under section 18(4) of the Act[^f00089].

Short absence

89

A claimant is to continue to be entitled to an employment and support allowance during the first 4 weeks of a temporary absence from Northern Ireland if—

(a) the period of absence is unlikely to exceed 52 weeks; and

(b) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance.

Absence to receive medical treatment

90

(1) A claimant is to continue to be entitled to an employment and support allowance during the first 26 weeks of a temporary absence from Northern Ireland if—

(a) the period of absence is unlikely to exceed 52 weeks;

(b) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance;

(i) in connection with arrangements made for the treatment of the claimant for a disease or bodily or mental disablement directly related to the claimant’s limited capability for work which commenced before leaving Northern Ireland, or

(ii) because the claimant is accompanying a dependent child (which means any child or qualifying young person who is treated as the responsibility of the claimant or the claimant’s partner, where that child or young person is a member of the claimant’s household) in connection with arrangements made for the treatment of that child for a disease or bodily or mental disablement; and

(d) those arrangements relate to treatment—

(i) outside Northern Ireland,

(ii) during the period whilst the claimant is temporarily absent from Northern Ireland, and

(iii) by, or under the supervision of, a person appropriately qualified to carry out that treatment.

(2) In this regulation, “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.

Absence in order to receive health service treatment

91

A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Northern Ireland if—

(a) while absent from Northern Ireland, the claimant continues to satisfy the other conditions of entitlement to that employment and support allowance; and

(b) that period of temporary absence is for the purpose of the claimant receiving treatment at a hospital or other institution outside Northern Ireland where the treatment is being provided—

(i) under Article 5, 7 or 8 of the Health and Personal Social Services Order[^f00090] (provision of accommodation and medical services, etc.; prevention of illness, care and after-care; care of mothers and young children),

(ii) pursuant to arrangements made under Article 14A of that Order[^f00091] (arrangements for provision of health services by other bodies or persons), or

(iii) pursuant to arrangements made under paragraph 13 of Schedule 3 to the Health and Personal Social Services (Northern Ireland) Order 1991[^f00092] (Health and Social Services trusts: specific powers).

Absence of member of family of member of Her Majesty’s forces

92

(1) A claimant is to continue to be entitled to an employment and support allowance during any period of temporary absence from Northern Ireland if the claimant is a member of the family of a member of Her Majesty’s forces and temporarily absent from Northern Ireland by reason only of the fact that the claimant is living with that member.

(2) In this regulation “member of the family of a member of Her Majesty’s forces” means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-in-law, step-father, mother, mother-in law or step-mother of such a member.

PART 12 — DISQUALIFICATION

Disqualification for misconduct etc.

93

(1) Subject to paragraph (3), paragraph (2) applies where a claimant—

(a) has limited capability for work by reason of the claimant’s own misconduct, except in a case where the limited capability is due to a sexually transmitted disease;

(b) fails without good cause to attend for or submit to medical or other treatment (excluding vaccination, inoculation or surgery which the Department considers is major) recommended by a doctor with whom, or a hospital or similar institution with which, the claimant is undergoing medical treatment, which would be likely to remove the limitation on the claimant’s capability for work;

(d) is, without good cause, absent from the claimant’s place of residence without informing the Department where the claimant may be found.

(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an employment and support allowance for such period not exceeding 6 weeks as the Department may determine in accordance with Chapter 2 of Part II of the Social Security (Northern Ireland) Order 1998[^f00093].

(3) Paragraph (2) does not apply where the claimant—

(a) is disqualified for receiving an employment and support allowance by virtue of regulations made under section 5B or 6 of the Social Security Fraud Act (Northern Ireland) 2001[^f00094] (loss of benefit for commission of benefit offences); or

(b) is a person in hardship.

(4) In this regulation, “doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom, a person registered or recognised as such in the country in which the person undertakes medical practice.

Meaning of “person in hardship”

94

(1) A claimant is a “person in hardship” if the claimant—

(a) has informed the Department of the circumstances on which the claimant relies to establish that fact; and

(b) falls within paragraph (2), (3) or (5).

(2) A claimant falls within this paragraph if—

(a) she is pregnant;

(b) a member of the claimant’s family is pregnant;

(d) the claimant is a member of a couple and both members are aged less than 18.

(3) Subject to paragraph (4), the claimant falls within this paragraph if the claimant or the claimant’s partner—

(a) has been awarded an attendance allowance , pension age disability payment, armed forces independence payment, the care component or the daily living component;

(b) has claimed attendance allowance , pension age disability payment, armed forces independence payment, disability living allowance , Scottish adult disability living allowance , child disability payment , personal independence payment or adult disability payment and the claim has not been determined;

(i) has been awarded an attendance allowance , pension age disability payment, armed forces independence payment, the care component or the daily living component; or

(ii) has claimed attendance allowance , pension age disability payment, armed forces independence payment, disability living allowance , Scottish adult disability living allowance , child disability payment , personal independence payment or adult disability payment and the claim has not been determined; or

(d) has attained the qualifying age for state pension credit, which has the meaning given in section 1(6) of the State Pension Credit Act (Northern Ireland) 2002[^f00095].

(4) A claimant to whom paragraph (3)(b) or (3)(c)(ii) applies is a person in hardship only for 26 weeks from the date of the claim unless the claimant is a person in hardship under another provision of this regulation.

(5) The claimant falls within this paragraph where the Department is satisfied, having regard to all the circumstances and, in particular, the matters set out in paragraph (6), that unless an employment and support allowance is paid, the claimant, or a member of the claimant’s family, will suffer hardship.

(6) The matters referred to in paragraph (5) are—

(a) the resources which are likely to be available to the claimant and the claimant’s family and the length of time for which they might be available; and

(b) whether there is a substantial risk that essential items, including food, clothing and heating, will cease to be available to the claimant or a member of the claimant’s family, or will be available at considerably reduced levels and the length of time for which this might be so.

(7) In this regulation—

“adult disability payment” has the meaning given in regulation 2 of the Disability Assistance for Working Age People (Scotland) Regulations 2022;

“armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011[^f00096].

“attendance allowance” means—an attendance allowance under section 64 of the Contributions and Benefits Act[^f00097];an increase of disablement pension under section 104 or 105 of that Act (increases where constant attendance needed and for exceptionally severe disablement);a payment by virtue of Article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983[^f00098] or any analogous payment;any payment based on the need for attendance which is paid as an addition to a war disablement pension (which means any retired pay or pension or allowance payable in respect of disablement under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003[^f00099];

“care component” means— the care component of disability living allowance at the highest or middle rate prescribed under section 72(3) of the Contributions and Benefits Act; ...the care component of child disability payment at the highest or middle rate provided for in regulation 11(5) of the Disability Assistance for Children and Young People (Scotland) Regulations 2021; or the care component of Scottish adult disability living allowance at the highest or middle rate provided for in regulation 6(4) of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025;

“child disability payment” has the meaning given in regulation 2 of the Disability Assistance for Children and Young People (Scotland) Regulations 2021;

“daily living component” means— in respect of personal independence payment, the daily living component of that payment at the standard or enhanced rate referred to in Article 83 of the Welfare Reform (Northern Ireland) Order 2015;in respect of adult disability payment, the daily living component of that payment at the standard or enhanced rate referred to in regulation 5 of the Disability Assistance for Working Age People (Scotland) Regulations 2022.

“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act[^f00100];

“pension age disability payment” has the meaning given in regulation 2 of the Disability Assistance for Older People (Scotland) Regulations 2024;

“personal independence payment” means an allowance under Part 5 of the Welfare Reform (Northern Ireland) Order 2015.

“Scottish adult disability living allowance” has the meaning given in regulation 2 of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025;

Treating a claimant as not having limited capability for work

95

The claimant is to be treated as not having limited capability for work if the claimant is disqualified for receiving an employment and support allowance during a period of imprisonment or detention in legal custody if that disqualification is for more than 6 weeks.

Exceptions from disqualification for imprisonment

96

(1) Notwithstanding section 18(4)(b) of the Act[^f00101], a claimant is not disqualified for receiving an employment and support allowance for any period during which that claimant is undergoing imprisonment or detention in legal custody—

(a) in connection with a charge brought or intended to be brought against the claimant in criminal proceedings;

(b) pursuant to any sentence of a court in criminal proceedings; or

unless paragraph (2) applies.

(2) This paragraph applies where—

(a) a penalty is imposed on the claimant at the conclusion of the proceedings referred to in paragraph (1); or

(b) in the case of default of payment of a sum adjudged to be paid on conviction, a penalty is imposed in respect of such default.

(3) Notwithstanding section 18(4)(b) of the Act, a claimant “(C)” is not to be disqualified for receiving an employment and support allowance, for any period during which C is undergoing detention in legal custody after the conclusion of criminal proceedings if it is a period during which C is detained in a hospital or similar institution in Northern Ireland as a person suffering from mental disorder unless—

(a) C is detained under Article 53 of the Mental Health Order (removal to hospital of persons serving sentences of imprisonment etc.); and

(b) in any case where there is in relation to C a release date within the meaning of Article 56(3) of that Order (further provisions as to prisoners under sentence), C is being detained on or before the day which the Secretary of State certifies to be that release date.

(4) In this regulation—

(a) “court” means any court in the United Kingdom, the Channel Islands or the Isle of Man or in any place to which the Colonial Prisoners Removal Act 1884[^f00102] applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial (Appeals) Act 1968[^f00103] or the Courts-Martial Appeal Court;

(b) “hospital or similar institution” means any place (not being a prison, a young offenders centre, a juvenile justice centre or secure accommodation in a children’s home and not being at or in any such place) in which persons suffering from mental disorder are or may be received for care or treatment;

(c) “penalty” means a sentence of imprisonment or detention under Article 45(1) or (2) of the Criminal Justice (Children) (Northern Ireland) Order 1998[^f00104];

(d) in relation to a person who is liable to be detained in Northern Ireland as a result of any order made under the Colonial Prisoners Removal Act 1884, references to a prison must be construed as including references to a prison within the meaning of that Act;

(e) criminal proceedings against any person must be deemed to be concluded upon that person being found insane in those proceedings so that the person cannot be tried or that person’s trial cannot proceed.

(5) Where a claimant outside Northern Ireland is undergoing imprisonment or detention in legal custody and, in similar circumstances in Northern Ireland, the claimant would, by virtue of this regulation, not have been disqualified for receiving an employment and support allowance, the claimant is not disqualified for receiving that allowance by reason only of the imprisonment or detention.

Suspension of payment of an employment and support allowance during imprisonment

97

(1) Subject to the following provisions of this regulation, the payment of an employment and support allowance to any claimant—

(a) which is excepted from the operation of section 18(4)(b) of the Act by virtue of the provisions of regulation 96(1), (3) or (5); or

(b) which is payable otherwise than in respect of a period during which the claimant is undergoing imprisonment or detention in legal custody,

is suspended while that claimant is undergoing imprisonment or detention in legal custody.

(2) An employment and support allowance is not to be suspended while the claimant is liable to be detained in a hospital or similar institution, as defined in regulation 96(4), during a period for which in the claimant’s case, the allowance is or would be excepted from the operation of section 18(4)(b) of the Act by virtue of regulation 96(3).

(3) Where, by virtue of this regulation, payment of an employment and support allowance is suspended for any period, the period of suspension is not to be taken into account in calculating any period under regulation 50 of the Claims and Payments Regulations 2016 (extinguishment of right to payment if payment is not obtained within the prescribed period).

PART 13 — PERIODS OF LESS THAN A WEEK

Entitlement for less than a week – amount of an employment and support allowance payable

98

(1) This regulation applies where the claimant is entitled to an employment and support allowance for a part-week and this regulation is subject to the following provisions of this Part.

(2) The amount payable by way of an employment and support allowance in respect of a part-week is to be calculated by applying the formula—

$$( N × X ) 7$ where— X is the amount calculated in accordance with section 2(1) of the Act; N is the number of days in the part-week.$

(3) In this Part—

“part-week” means an entitlement to an employment and support allowance in respect of any period of less than a week; and

“relevant week” means the period of 7 days determined in accordance with regulation 99.

Relevant week

99

(1) Where a part-week—

(a) is the whole period for which an employment and support allowance is payable, or occurs at the beginning of an award, the relevant week is the period of 7 days ending on the last day of that part-week; or

(b) occurs at the end of an award, the relevant week is the period of 7 days beginning on the first day of the part-week.

(2) Where a claimant has an award of an employment and support allowance and that claimant’s benefit week changes, for the purpose of calculating the amounts of an employment and support allowance payable for the part-week beginning on the day after the last complete benefit week before the change and ending immediately before the change, the relevant week is the period of 7 days beginning on the day after the last complete benefit week.

Modification in the calculation of income

100

For the purposes of regulation 98 (entitlement for less than a week – amount of an employment and support allowance payable), a claimant’s income is to be calculated in accordance with regulations 76 to 84 subject to the following changes—

(a) any income which is due to be paid in the relevant week is to be treated as paid on the first day of that week;

(b) any widow’s benefit, training allowance, widowed parent’s allowance, bereavement support payment under section 29 of the Pensions Act (Northern Ireland) 2015, carer’s allowance , carer support payment and any increase in disablement pension payable in accordance with Part 1 of Schedule 7 to the Contributions and Benefits Act (unemployability supplement) which is payable in the relevant week but not in respect of any day in the part-week is to be disregarded;

(i) any income, or

(ii) any change in the amount of income of the same kind,

which is first payable within the relevant week but not on any day in the part-week is to be disregarded;

(d) where only part of the weekly balance of income is taken into account in the relevant week, the balance is to be disregarded.

Reduction in certain cases

101

(1) Where a disqualification is to be made in accordance with regulation 93 in respect of a part-week, the amount referred to in paragraph (2) is to be payable by way of an employment and support allowance in respect of that part-week.

(2) The amount mentioned in paragraph (1) is—

(a) one seventh of the employment and support allowance which would have been paid for the part-week if—

(i) there was no disqualification under regulation 93; and

(ii) it was not a part-week; multiplied by

(b) the number of days in the part-week in respect of which no disqualification is to be made in accordance with regulation 93.

Payment of an employment and support allowance for days of certain treatment

102

(1) Where a claimant is entitled to an employment and support allowance as a result of being treated as having limited capability for work in accordance with regulation 22 (claimants receiving certain treatment), the amount payable is to be equal to one seventh of the amount of the employment and support allowance which would be payable in respect of a week in accordance with section 2(1) of the Act multiplied by N.

(2) In paragraph (1), N is the number of days in that week on which the claimant was receiving treatment referred to in regulation 22 or recovering from that treatment, but does not include any day during which the claimant does work.

SCHEDULE 1 — Her Majesty’s forces

PART 1 — PRESCRIBED ESTABLISHMENTS AND ORGANISATIONS

1

Any of the regular naval, military or air forces of the Crown.

2

Royal Fleet Reserve.

3

Royal Navy Reserve.

4

Royal Marines Reserve.

5

Army Reserve.

6

Territorial Army.

7

Royal Air Force Reserve.

8

Royal Auxiliary Air Force.

9

The Royal Irish Regiment, to the extent that its members are not members of any force falling within paragraph 1.

PART 2 — ESTABLISHMENTS AND ORGANISATIONS OF WHICH HER MAJESTY’S FORCES DO NOT CONSIST

10

Her Majesty’s forces are not to be taken to consist of any of the establishments or organisations specified in Part 1 of this Schedule by virtue only of the employment in such establishment or organisation of the following persons—

(a) any person who is serving as a member of any naval force of Her Majesty’s forces and who (not having been an insured person under the National Insurance Act (Northern Ireland) 1966[^f00105] and not having been a contributor under the Social Security (Northern Ireland) Act 1975[^f00106] or not being a contributor under the Contributions and Benefits Act) locally entered that force at an overseas base;

(b) any person who is serving as a member of any military force of Her Majesty’s forces and who entered that force, or was recruited for that force, outside the United Kingdom, and the depot of whose unit is situated outside the United Kingdom;

(c) any person who is serving as a member of any air force of Her Majesty’s forces and who entered that force, or was recruited for that force, outside the United Kingdom, and is liable under the terms of engagement to serve only in a specified part of the world outside the United Kingdom.

SCHEDULE 2 — Assessment of Whether a Claimant has Limited Capability for Work

PART 1 — PHYSICAL DISABILITIES

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