The Employment and Support Allowance Regulations 2013

Made: 25th February 2013

Coming into force: 29th April 2013

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 2(1)(a) and (c) and (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3) and (4)(a) and (b), 11A(5), 11B(2) and (3), 11D(2)(d), 11E(1), 11H(5) and (6), 11J(3), (4) and (8), 17(1), (2) and (3)(a) and (b), 18(1), (2) and (4), 20(2) to (7), 24(1), (2)(b) and (3) and 25(2) to (5) of, and paragraphs 1(3) and (4), 3(2) and 4(1)(a) and (c), (3) and (4) of Schedule 1 and paragraphs 1 to 4A, 5, 6, 9 and 10 of Schedule 2 to, the Welfare Reform Act 2007 , sections 5(1A), 189(4) to (6) and 191 of the Social Security Administration Act 1992 , section 21(1)(a) of the Social Security Act 1998 and paragraphs 2(3) and 3 of Schedule 5 to the Welfare Reform Act 2012 .

The Social Security Advisory Committee has agreed that the proposals in respect of these Regulations should not be referred to it .

A draft of these Regulations has been laid before Parliament in accordance with section 26(1) of the Welfare Reform Act 2007 and approved by a resolution of each House of Parliament.

PART 1 — General

Citation, commencement and application

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• (1) These Regulations may be cited as the Employment and Support Allowance Regulations 2013.

• (2) They come into force on 29th April 2013.

• (3) They apply in relation to a particular case on any day on which section 33(1)(b) of the Welfare Reform Act 2012 (abolition of income-related employment and support allowance) is in force and applies in relation to that case.

Interpretation

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In these Regulations—

• “the Act” means the Welfare Reform Act 2007;

• “advanced education” means education for the purposes of—a course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business and Technology Education Council or Qualifications Scotland, or a teaching qualification; orany other course which is of a standard above ordinary national diploma, a diploma of the Business and Technology Education Council or a higher or advanced higher national certificate of Qualifications Scotland or a general certificate of education (advanced level);

• “benefit week” means a period of seven days ending on such day as the Secretary of State may direct, but for the purposes of calculating any payment of income “benefit week” means the period of seven days ending on—the day before the first day of the first period of seven days which—ends on such day as the Secretary of State may direct; andfollows the date of claim for an employment and support allowance; orthe last day on which an employment and support allowance is paid if it is in payment for less than a week;

• “carer's allowance” means an allowance under section 70 of the Contributions and Benefits Act ;

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

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

• “Claims and Payments Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Claims and Payments) Regulations 2013 ;

• “close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister or, if any of the preceding persons is one member of a couple, the other member of that couple;

• “confinement” has the meaning given to it by section 171(1) of the Contributions and Benefits Act ;

• “councillor” means—in relation to England and Wales, a member of a London borough council, a county council, a county borough council, a district council, a parish or community council, the Common Council of the City of London or the Council of the Isles of Scilly; andin relation to Scotland, a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

• “councillor's allowance” means—in England, an allowance under or by virtue of—section 173 or 177 of the Local Government Act 1972 ; ora scheme made by virtue of section 18 of the Local Government and Housing Act 1989 ,other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972;in Wales, an allowance under or by virtue of a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972; orin Scotland, an allowance or remuneration under or by virtue of—a scheme made by virtue of section 18 of the Local Government and Housing Act 1989; orsection 11 of the Local Governance (Scotland) Act 2004 ;

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

• “Decisions and Appeals Regulations 1999” means the Social Security and Child Support (Decisions and Appeals) Regulations 1999 ;

• “Decisions and Appeals Regulations 2013” means the Universal Credit, Personal Independence Payment, Jobseeker's Allowance and Employment and Support Allowance (Decisions and Appeals) Regulations 2013 ;

• “descriptor” means, in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which describes a person's ability to perform that activity;

• “employed earner” is to be construed in accordance with section 2(1)(a) of the Contributions and Benefits Act ;

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

• “enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament or the National Assembly of Wales;

• “family” means—a couple;a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person;a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a young person;

• “first contribution condition” means the condition set out in paragraph 1(1) of Schedule 1 to the Act ;

• “First-tier Tribunal” has the meaning given by section 3(1) of the Tribunals, Courts and Enforcement Act 2007 ;

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

• “Health Service Act” means the National Health Service Act 2006 ;

• “Health Service (Wales) Act” means the National Health Service (Wales) Act 2006 ;

• “Income Support Regulations” means the Income Support (General) Regulations 1987 ;

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

• “Medical Evidence Regulations” means the Social Security (Medical Evidence) Regulations 1976 ;

• “medical treatment” means medical, surgical or rehabilitative treatment (including any course or diet or other regimen), and references to a person receiving or submitting to medical treatment are to be construed accordingly;

• “member of Her Majesty's forces” means a person, other than one mentioned in Part 2 of Schedule 1, who is—over 16 years of age; anda member of an establishment or organisation specified in Part 1 of that Schedule,but does not include any such person while absent on desertion;

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

• “National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 (rate of the national minimum wage);

• “net earnings” means such earnings as are calculated in accordance with regulation 81;

• “occupational pension scheme” has the meaning given by section 1 of the Pension Schemes Act 1993 ;

• “part-time employment” means, if the claimant were entitled to income support, employment in which the claimant is not to be treated as engaged in remunerative work under regulation 5 or 6(1) and (4) of the Income Support Regulations (persons treated, or not treated, as engaged in remunerative work) ;

• “partner” means—where a claimant is a member of a couple, the other member of that couple; orwhere a claimant is a husband or wife by virtue of a polygamous marriage, the other party to the marriage or any spouse additional to either party to the marriage;

• “payment” includes a part of a payment;

• “pay period” means the period in respect of which a claimant is, or expects to be, normally paid by the claimant's employer, being a week, a fortnight, four weeks, a month or other shorter or longer period as the case may be;

• “period of limited capability for work” means, except in regulation 3(2), a period throughout which a person has, or is treated as having, limited capability for work under these Regulations, and does not include a period which is outside the prescribed time for claiming as specified in regulation 28 of the Claims and Payments Regulations 2013;

• “permanent health insurance payment” means any periodical payment arranged by an employer under an insurance policy providing benefits in connection with physical or mental illness or disability, in relation to a former employee on the termination of that person's employment;

• “personal pension scheme” means—a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993 ;an annuity contract, trust scheme or substituted contract which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(f) of Schedule 36 to the Finance Act 2004 ;a personal pension scheme which is treated as having become a registered pension scheme by virtue of paragraph 1(1)(g) of Schedule 36 to the Finance Act 2004;

• “polygamous marriage” means any marriage entered into under a law which permits polygamy where—either party has for the time being any spouse additional to the other party; andthe claimant, the other party to the marriage and the additional spouse are members of the same household;

• “qualifying young person” has the meaning given by section 142 of the Contributions and Benefits Act (child and qualifying young person) ;

• “relative” means close relative, grand-parent, grand-child, uncle, aunt, nephew or niece;

• “second contribution condition” means the condition set out in paragraph 2(1) of Schedule 1 to the Act;

• “self-employed earner” is to be construed in accordance with section 2(1)(b) of the Contributions and Benefits Act;

• “state pension credit” means a state pension credit under the State Pension Credit Act 2002 ;

• “Tax Credits Act” means the Tax Credits Act 2002 ;

• “terminally ill”, in relation to a claimant, means the claimant is suffering from a progressive disease and death in consequence of that disease can reasonably be expected within 12 months;

• “training” means—training in pursuance of arrangements made under section 2(1) of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990 ; orany training received on a course which a person attends for 16 hours or more a week, the primary purpose of which is the teaching of occupational or vocational skills;

• “training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—out of public funds by a Government department or by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise, Highlands and Islands Enterprise ... or the Welsh Ministers;to a person for that person's maintenance or in respect of a member of that person's family; andfor the period, or part of the period, during which the person is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to that person or provided or approved by or on behalf of the Secretary of State, Skills Development Scotland, Scottish Enterprise, Highlands and Islands Enterprise, or the Welsh Ministers,but does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that that person is following a course of full-time education, other than under arrangements made under section 2 of the Employment and Training Act 1973 or section 2 of the Enterprise and New Towns (Scotland) Act 1990, or is training as a teacher;

• “voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;

• “week” means a period of seven days except in relation to regulation 22;

• “working tax credit” means a working tax credit under section 10 of the Tax Credits Act;

• “young person” is a person who, except where section 6 of the Children (Leaving Care) Act 2000 (exclusion from benefits) applies, falls within the definition of qualifying young person in section 142 of the Contributions and Benefits Act (child and qualifying young person).

Further interpretation

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• (1) In these Regulations, any reference to the claimant's family is to be construed as if it included in relation to a polygamous marriage a reference to any partner and any child or young person who is a member of the claimant's household.

• (2) For the purposes of paragraph 4 of Schedule 1 to the Act (condition relating to youth), “period of limited capability for work” means a period throughout which a person has, or is treated as having, limited capability for work.

• (3) For the purposes of paragraph 5 of Schedule 1 to the Act, “week” means a period of seven days.

Rounding of fractions

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For the purposes of these Regulations—

• (a) where any calculation under these Regulations results in a fraction of a penny, that fraction is, if it would be to the claimant's advantage, to be treated as a penny, but otherwise it must be disregarded;

• (b) where an employment and support allowance is awarded for a period which is not a complete benefit week and the applicable amount in respect of the period results in an amount which includes a fraction of a penny, that fraction is to be treated as a penny.

PART 2 — The assessment phase

The end of the assessment phase

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• (1) Subject to paragraphs (2) and (3) and regulation 6, the assessment phase in relation to a claimant ends on the last day of the relevant period.

• (2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

• (3) This paragraph applies where, at the end of the relevant period—

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

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

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

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

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

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

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

• (b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013 (extended period of sickness).

The assessment phase – previous claimants

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• (1) Where the circumstances in paragraph (2) apply in relation to a claimant, the assessment phase—

• (a) begins on the first day of the period for which the claimant was previously entitled to an employment and support allowance; and

• (b) subject to paragraphs (3), (4) and (5), ends on the day when the sum of the period for which the claimant was previously entitled to an employment and support allowance and the period for which the claimant is currently entitled to such an allowance is 13 weeks.

• (1A) For the purposes of paragraph (1), any period when the claimant was—

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

• (b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013,

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

• (2) The circumstances are that—

• (a) all of the following apply—

• (i) the claimant's current period of limited capability for work is to be treated as a continuation of an earlier period of limited capability for work under regulation 86;

• (ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work;

• (iii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; and

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

• (b) all of the following apply—