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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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“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 Act⁸⁵.

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 Order⁸⁶ (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 Order⁸⁷ (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 1991⁸⁸ (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 1998⁸⁹.

(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) 2001⁹⁰ (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) 2002⁹¹.

(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 2011⁹².

“attendance allowance” means—an attendance allowance under section 64 of the Contributions and Benefits Act⁹³;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 1983⁹⁴ 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 2003⁹⁵;

“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 Act⁹⁶;

“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 Act⁹⁷, 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 1884⁹⁸ applies or any naval court-martial, army court-martial or air force court-martial within the meaning of the Courts-Martial (Appeals) Act 1968⁹⁹ 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 1998¹⁰⁰;

(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) 1966¹⁰¹ and not having been a contributor under the Social Security (Northern Ireland) Act 1975¹⁰² 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

(1)	(2)	(2)	(3)
Activity	Descriptors	Descriptors	Points
1. Mobilising unaided by another person with or without a walking stick, manual wheelchair or other aid if such aid is normally or could reasonably be worn or used.	(a)	Cannot, unaided by another person, either— (i) mobilise more than 50 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or (ii) repeatedly mobilise 50 metres within a reasonable timescale because of significant discomfort or exhaustion.	15
	(b)	Cannot, unaided by another person, mount or descend two steps even with the support of a handrail.	9
	(c)	Cannot, unaided by another person, either— (i) mobilise more than 100 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or (ii) repeatedly mobilise 100 metres within a reasonable timescale because of significant discomfort or exhaustion.	9
	(d)	Cannot, unaided by another person, either— (i) mobilise more than 200 metres on level ground without stopping in order to avoid significant discomfort or exhaustion, or (ii) repeatedly mobilise 200 metres within a reasonable timescale because of significant discomfort or exhaustion.	6
	(e)	None of the above applies.	0
2. Standing and sitting.	(a)	Cannot move between one seated position and another seated position which are located next to one another without receiving physical assistance from another person.	15
	(b)	Cannot, for the majority of the time, remain at a work station— (i) standing unassisted by another person (even if free to move around), (ii) sitting (even in an adjustable chair), or (iii) a combination of (i) and (ii), for more than 30 minutes, before needing to move away in order to avoid significant discomfort or exhaustion.	9
	(c)	Cannot, for the majority of the time, remain at a work station— (i) standing unassisted by another person (even if free to move around), (ii) sitting (even in an adjustable chair), or (iii) a combination of (i) and (ii), for more than an hour before needing to move away in order to avoid significant discomfort or exhaustion.	6
	(d)	None of the above applies.	0
3. Reaching.	(a)	Cannot raise either arm as if to put something in the top pocket of a coat or jacket.	15
	(b)	Cannot raise either arm to top of head as if to put on a hat.	9
	(c)	Cannot raise either arm above head height as if to reach for something.	6
	(d)	None of the above applies.	0
4. Picking up and moving or transferring by the use of the upper body and arms.	(a)	Cannot pick up and move a 0∙5 litre carton full of liquid.	15
	(b)	Cannot pick up and move a one litre carton full of liquid.	9
	(c)	Cannot transfer a light but bulky object such as an empty cardboard box.	6
	(d)	None of the above applies.	0
5. Manual dexterity.	(a)	Cannot press a button (such as a telephone keypad) with either hand or cannot turn the pages of a book with either hand.	15
	(b)	Cannot pick up a £1 coin or equivalent with either hand.	15
	(c)	Cannot use a pen or pencil to make a meaningful mark with either hand.	9
	(d)	Cannot single-handedly use a suitable keyboard or mouse.	9
	(e)	None of the above applies.	0
6. Making self understood through speaking, writing, typing or other means which are normally or could reasonably be used, unaided by another person.	(a)	Cannot convey a simple message, such as the presence of a hazard.	15
	(b)	Has significant difficulty conveying a simple message to strangers.	15
	(c)	Has some difficulty conveying a simple message to strangers.	6
	(d)	None of the above applies.	0
7. Understanding communication by— (i) verbal means (such as hearing or lip reading) alone, (ii) non-verbal means (such as reading 16 point print or Braille) alone, or (iii) a combination of (i) and (ii), using any aid that is normally or could reasonably be used, unaided by another person.	(a)	Cannot understand a simple message, such as the location of a fire escape, due to sensory impairment.	15
	(b)	Has significant difficulty understanding a simple message from a stranger due to sensory impairment.	15
	(c)	Has some difficulty understanding a simple message from a stranger due to sensory impairment.	6
	(d)	None of the above applies.	0
8. Navigation and maintaining safety using a guide dog or other aid if either or both are normally used or could be reasonably used.	(a)	Unable to navigate around familiar surroundings, without being accompanied by another person, due to sensory impairment.	15
	(b)	Cannot safely complete a potentially hazardous task such as crossing the road, without being accompanied by another person, due to sensory impairment.	15
	(c)	Unable to navigate around unfamiliar surroundings, without being accompanied by another person, due to sensory impairment.	9
	(d)	None of the above applies.	0
9. Absence or loss of control whilst conscious leading to extensive evacuation of the bowel and/or bladder, other than enuresis (bed-wetting), despite the wearing or use of any aids or adaptations which are normally or could reasonably be worn or used.	(a)	At least once a month experiences— (i) loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, or (ii) substantial leakage of the contents of a collecting device, sufficient to require cleaning and a change in clothing.	15
	(b)	The majority of the time is at risk of loss of control leading to extensive evacuation of the bowel and/or voiding of the bladder, sufficient to require cleaning and a change in clothing, if not able to reach a toilet quickly.	6
	(c)	Neither of the above applies.	0

10. Consciousness during waking moments.	(a)	At least once a week, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.	15
	(b)	At least once a month, has an involuntary episode of lost or altered consciousness resulting in significantly disrupted awareness or concentration.	6
	(c)	Neither of the above applies.	0

PART 2 — MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT

(1)		(2)	(2)	(2)	(3)
Activity		Descriptors	Descriptors	Descriptors	Points
11. Learning tasks.	(a)	Cannot learn how to complete a simple task, such as setting an alarm clock.	Cannot learn how to complete a simple task, such as setting an alarm clock.	Cannot learn how to complete a simple task, such as setting an alarm clock.	15
	(b)	Cannot learn anything beyond a simple task, such as setting an alarm clock.	Cannot learn anything beyond a simple task, such as setting an alarm clock.	Cannot learn anything beyond a simple task, such as setting an alarm clock.	9
	(c)	Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes.	Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes.	Cannot learn anything beyond a moderately complex task, such as the steps involved in operating a washing machine to clean clothes.	6
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0

12. Awareness of everyday hazards (such as boiling water or sharp objects).	(a)	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	15
		(i)	injury to self or others, or	injury to self or others, or
		(ii)	damage to property or possessions,	damage to property or possessions,
		such that the claimant requires supervision for the majority of the time to maintain safety.	such that the claimant requires supervision for the majority of the time to maintain safety.	such that the claimant requires supervision for the majority of the time to maintain safety.
	(b)	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	9
		(i)	(i)	injury to self or others, or
		(ii)	(ii)	damage to property or possessions,
		such that the claimant frequently requires supervision to maintain safety.	such that the claimant frequently requires supervision to maintain safety.	such that the claimant frequently requires supervision to maintain safety.
	(c)	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	Reduced awareness of everyday hazards leads to a significant risk of—	6
		(i)	(i)	injury to self or others, or
		(ii)	(ii)	damage to property or possessions,
		such that the claimant occasionally requires supervision to maintain safety.	such that the claimant occasionally requires supervision to maintain safety.	such that the claimant occasionally requires supervision to maintain safety.
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0
13. Initiating and completing personal action (which means planning, organisation, problem solving, prioritising or switching tasks).	(a)	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	15
	(b)	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time.	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time.	Cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions for the majority of the time.	9
	(c)	Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	Frequently cannot, due to impaired mental function, reliably initiate or complete at least 2 sequential personal actions.	6
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0
14. Coping with change.	(a)	Cannot cope with any change to the extent that day to day life cannot be managed.	Cannot cope with any change to the extent that day to day life cannot be managed.	Cannot cope with any change to the extent that day to day life cannot be managed.	15
	(b)	Cannot cope with minor planned change (such as a pre-arranged change to the routine time scheduled for a lunch break), to the extent that, overall, day to day life is made significantly more difficult.	Cannot cope with minor planned change (such as a pre-arranged change to the routine time scheduled for a lunch break), to the extent that, overall, day to day life is made significantly more difficult.	Cannot cope with minor planned change (such as a pre-arranged change to the routine time scheduled for a lunch break), to the extent that, overall, day to day life is made significantly more difficult.	9
	(c)	Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that, overall, day to day life is made significantly more difficult.	Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that, overall, day to day life is made significantly more difficult.	Cannot cope with minor unplanned change (such as the timing of an appointment on the day it is due to occur), to the extent that, overall, day to day life is made significantly more difficult.	6
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0
15.Getting about.	(a)	Cannot get to any place outside the claimant’s home with which the claimant is familiar.	Cannot get to any place outside the claimant’s home with which the claimant is familiar.	Cannot get to any place outside the claimant’s home with which the claimant is familiar.	15
	(b)	Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.	Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.	Is unable to get to a specified place with which the claimant is familiar, without being accompanied by another person.	9
	(c)	Is unable to get to a specified place with which the claimant is unfamiliar, without being accompanied by another person.	Is unable to get to a specified place with which the claimant is unfamiliar, without being accompanied by another person.	Is unable to get to a specified place with which the claimant is unfamiliar, without being accompanied by another person.	6
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0
16. Coping with social engagement due to cognitive impairment or mental disorder.	(a)	Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	15
	(b)	Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact with someone unfamiliar to the claimant is always precluded due to difficulty relating to others or significant distress experienced by the claimant.	9
	(c)	Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the claimant.	Engagement in social contact with someone unfamiliar to the claimant is not possible for the majority of the time due to difficulty relating to others or significant distress experienced by the claimant.	6
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0
17. Appropriateness of behaviour with other people, due to cognitive impairment or mental disorder.	(a)	Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Has, on a daily basis, uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	15
	(b)	Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Frequently has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	15
	(c)	Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	Occasionally has uncontrollable episodes of aggressive or disinhibited behaviour that would be unreasonable in any workplace.	9
	(d)	None of the above applies.	None of the above applies.	None of the above applies.	0

Signed

Signed by authority of the Secretary of State for Work and Pensions

Priti Patel — Minister of State, — Department for Work and Pensions — 3rd May 2016

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations provide for a social security benefit to be known as an employment and support allowance (“ESA”), which replaces the existing benefit of the same name. The new benefit is for people who have a health condition or disability which limits their capability to work. People will only be able to claim the new benefit where they have made sufficient National Insurance contributions. People will no longer be able to claim ESA where they have low or no other income but have not made sufficient National Insurance contributions. Many rules for the existing benefit are replicated in these Regulations for the new benefit.

Most claimants will be required to serve an assessment phase which will normally last for 13 weeks from the start of the claim (regulations 5 to 7). During this period claimants will receive a rate of benefit that depends on whether they are aged under or over 25years. Once the assessment phase is complete and subject to satisfying the assessment of “limited capability for work” (see Part 4) claimants will move on to the main phase of the benefit. Their entitlement will then consist of the basic rate – a flat rate of benefit, regardless of age – and, on top of this, a work-related activity or support component. Some claimants will be entitled to the work-related activity component and will be required to engage in “conditionality” (Part 7). Failure to engage can lead to the imposition of a reduction in benefit (Part 8). Claimants who demonstrate “limited capability for work-related activity” (Part 5) will be entitled to the support component instead of the work-related activity component, in addition to the basic rate. These claimants will be those with the most severe health conditions and will not be subject to any conditionality requirements.

Part 2 provides detailed provisions on when the assessment phase will end.

Part 3 deals with conditions of entitlement.

Part 4 deals with the determination of whether or not a claimant has limited capability for work. The assessment used to determine this is set out in Schedule 2. It also provides for the circumstances in which a claimant is to be treated as having or not having limited capability for work.

Part 5 deals with the determination of whether or not a claimant has limited capability for work-related activity. The assessment used to determine this is set out in Schedule 3. It also provides for the circumstances in which a claimant is to be treated as having or not having limited capability for work-related activity.

Part 6 provides for the circumstances in which the work a claimant does affects the claimant’s entitlement.

Part 7 makes provision in relation to the claimant’s responsibilities. The claimant can be required to prepare for work and attend interviews in relation to work or work preparation. The provisions in Part 2 include details on which requirements apply to which claimants, how those requirements are met and circumstances in which they do not apply. Regulation 42 deals with the claimant’s responsibilities where they are entitled to Universal Credit as well as ESA. Regulations 44 and 45 contain provisions for accepting the claimant commitment which is usually a condition of entitlement.

Part 8 contains provisions relating to the reduction of benefit where a claimant fails to meet their responsibilities without good reason. This is known as a sanction. This includes the cases in which a sanction cannot be imposed, how long a sanction is to last and how much of the claimant’s employment and support allowance will be sanctioned. There are also provisions for transferring sanctions to and from Universal Credit, for example where a claimant with a sanction ceases to be entitled to Universal Credit and becomes entitled to ESA.

Part 9 specifies the amounts of ESA which are payable.

Part 10 deals with the calculation of a claimant’s income and earnings.

Part 11 provides for supplementary provisions. This includes providing that a claimant must wait a number of days at the start of a period of limited capability for work before becoming entitled to ESA (regulation 85) and rules which enable 2 periods of limited capability for work separated by not more than 12 weeks to be linked together (regulation 86).

Part 12 provides for the circumstances in which a claimant may be disqualified from receiving ESA and includes provision to deal with the situation where this would leave a person in hardship.

Part 13 contains details enabling the amount of ESA to be calculated where the claimant is entitled for a period of less than a week.

An impact assessment has not been produced for this instrument as no impact on the private or voluntary sector is foreseen.

Footnotes

1992 c. 8; section 5(1A) was inserted by Article 104(3) of the Welfare Reform (Northern Ireland) Order 2015 (S.I. 2015 No. 2006 (N.I. 1))

S.I. 1998/1506 (N.I. 10)

2007 c. 2 (N.I.); section 2(1) was amended by paragraph 19 of Schedule 3 and paragraph 6(2) of Schedule 5 to the Welfare Reform (Northern Ireland) Order 2015, section 3(2)(d) was amended by paragraph 21(c) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015, sections 11A to 11J were inserted by Article 63(2) of the Welfare Reform (Northern Ireland) Order 2015, section 18(4) was amended by paragraph 21(d) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015, section 20(2) to (7) was amended by paragraph 21(e) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015, paragraph 1(3) of Schedule 1 was substituted by section 12(4) of the Welfare Reform Act (Northern Ireland) 2010 (c. 13) and paragraph 1(4) was amended by section 12(5) of that Act, paragraph 3(2) of Schedule 1 was amended by paragraph 21(f) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015, paragraph 4A of Schedule 2 was inserted by Article 60(6) of the Welfare Reform (Northern Ireland) Order 2015 and paragraph 6 was amended by paragraph 21(g) of Schedule 3 to the Welfare Reform (Northern Ireland) Order 2015. Section 24(1) is cited for the meaning it gives to “prescribed” and “regulations”

S.I. 2015 No. 2006 (N.I. 1); Article 5 is cited for the meaning it gives to “the Contributions and Benefits Act” and “the Jobseekers Order”

S.R. 2016 No. 216

1992 c.7; Section 70 was amended by Articles 2(2)(a) and 3 of S.R. 2002 No. 321 and other amendments not relevant to these Regulations

S.I. 1995/755 (N.I. 2)

S.R. 2016 No. 220

The definition of “confinement” was amended by Article 4(b) of the Still-Birth (Definition) (Northern Ireland) Order 1992.(S.I. 1992/1310 (N.I. 10))

S.I. 1996/1919 (N.I.) 16)

Paragraph 1(1) of Schedule 1 was amended by section 12(2) of the Welfare Reform Act (Northern Ireland) 2010 (c. 13)

1999 c. 8. Section 60 was amended by section 26(9) of the National Health Service Reform and Health Care Professions Act 2002 (c. 17), paragraph 1 of Schedule 8 and paragraph 10 of Schedule 10 to the Health and Social Care Act 2008 (c. 14), sections 209, 201 and 213 of, and paragraphs 60 and 72 of Schedule 15 to, the Health and Social Care Act 2012 (c. 7) and S.I.s 2002/253 and 2010/231

S.I. 1972/1265 (N.I. 14)

S.R. 1987 No.459

S.R. 2016 218

S.R. 1976 No. 175

S.I. 1986/595 (N.I. 4)

S.I. 2015/621, relevant amending instruments are S.I. 2015/1724 and 2016/68.

1993 c. 49; the definition “occupational pension scheme” was substituted by Article 216(3) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005 No. 255 (N.I. 1)) and amended by regulation 2(2) of S.R. 2007 No. 457

Relevant amending Rules are S.R. 1988 Nos. 146 and 318 , S.R. 1990 No. 131, S.R. 1991 Nos. 338 and 381, S.R. 1992 Nos. 147 and 403, S.R. 1993 No. 373, S.R. 1994 No. 327, S.R. 1995 No. 86, S.R. 1996 No. 405, S.R. 1999 Nos. 342, 381 and 472 (C. 36), S.R. 2000 No. 74, S.R. 2001 No. 78, S.R. 2002 No. 363, S.R. 2004 No. 163, S.R. 2005 No. 458, S.R. 2007 No. 396 and S.R. 2010 No. 69

The definition of “personal pension scheme” was substituted by Article 216(3) of the Pensions (Northern Ireland) Order 2005

2004 c. 12

Section 138 was substituted by section 2(2) of the Child Benefit Act 2005 (c. 6)

2002 c. 14 (N.I.)

2002 c. 21

Sections 2 and 3 were amended by section 1 of the Disabled Persons (Employment) Act 1960 (c. 4) (N.I.) and Schedule 18 to the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3))

Section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10))

2002 c. 11 (N.I.). Section 6 was amended by Schedule 4 to the Welfare Reform Act (Northern Ireland) 2010

1954 c. 33 (N.I.)

S.R. 1996 No. 198; Regulation 55ZA was inserted by regulation 2(5) of S.R. 2015 No. 138.

S.R. 2008 No. 478

Section 1B was inserted by Article 58(1) of the Welfare Reform (Northern Ireland) Order 2015

Paragraph 1(2) was substituted by section 12 of the Welfare Reform Act (Northern Ireland) 2010

S.I. 2002/2005

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