The Employment and Support Allowance Regulations 2008
S.I. 2008/794 · Made 25 March 2008 · Extends to England, Wales and Scotland
Social Security
Made 25th March 2008
Laid before Parliament 27th March 2008
Coming into force in accordance with regulation 1
The Secretary of State for Work and Pensions, in exercise of the powers conferred by sections 2(1)(a) and (c), (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3) F1, 4(2)(a), (3), (6)(a) and (c), 5(2) and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3) and (4)(a) and (b), 11(1), (2)(a) to (g), (3) to (5), (6)(a) and (7)(c), 12(1), (2)(a) to (h), (3) to (7), 14(1) and (2)(a) and (b), 16(2)(a) and (4), 17, 18(1), (2) and (4), 20(2) to (7), 22 F2, 23(1) and (3), 24(1) F3, (2)(b) and (3), 25(1) to (5) and 26(2) of, and paragraphs 1(4), 3(2), 4(1)(a) and (c), (3) and (4) and 6(1)(b), (2) to (5) F4, (7) and (8) of Schedule 1 to, and paragraphs 1 to 7, 8(1), 9, 10, 12 and 14 of Schedule 2 to, the Welfare Reform Act 2007 F5, section 5(1) of the Social Security Administration Act 1992 F6 and section 21(1)(a) of the Social Security Act 1998 F7 makes the following Regulations, which are made by virtue of, or consequential on, the provisions of the Welfare Reform Act 2007 and which are made before the end of a period of 6 months beginning with the coming into force of those provisions:C1C2C3C4
Annotations to the whole text
Textual amendments
- F1
Section 3(3) is cited for the power to prescribe a payment under paragraph (b) of the definition of “pension payment”.
- F2
Section 22 is cited insofar as it relates to paragraphs 1 to 3, 6, 7, 8(1), 9 and 10 of Schedule 2.
- F3
Section 24(1) is cited for the definition of “employment” and “employed”, “period of limited capability for work”, “prescribed”, “regulations” and “week”.
- F4
Paragraph 6(5) of Schedule 1 is cited for the definition of “couple”, “education” and “remunerative work”.
- F5
- F6
- F7
Modifications
- C1
Instrument applied (with modifications) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (S.I. 2010/1907), reg. 16(2)(e)(ii)(3), Sch. 2 Pt. 3 (with reg. 3)
- C2
Instrument applied (with modifications) (1.10.2010) by The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (S.I. 2010/1907), regs. 1(2), 6(1)(2)(b), Sch. 1 Pt. 2 (with reg. 3)
- C3
Instrument modified (with application in accordance with art. 11(1) of the amending S.I.) by The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013 (S.I. 2013/983), art. 11 (as amended (3.4.2017) by S.I. 2017/204, reg. 7(1), Sch. 1 para. 9(2) (with Sch. 2 paras. 1-7); (30.6.2013) by The Welfare Reform Act 2012 (Commencement No. 11 and Transitional and Transitory Provisions and Commencement No. 9 and Transitional and Transitory Provisions (Amendment)) Order 2013 (S.I. 2013/1511), art. 9; (29.10.2013) by The Welfare Reform Act 2012 (Commencement No. 13 and Transitional and Transitory Provisions) Order 2013 (S.I. 2013/2657), art. 5(a)); (24.11.2014) by The Welfare Reform Act 2012 (Commencement No. 9, 11, 13 14, 16, 17 and 19 and Transitional and Transitory Provisions (Amendment)) Order 2014 (S.I. 2014/3067), art. 7, (a)
- C4
Instrument modified (temp.) (8.4.2020) by The Social Security (Coronavirus) (Prisoners) Regulations 2020 (S.I. 2020/409), reg. 2(2)(d) (with reg. 6(2)) (as amended) (12.5.2021) by S.I. 2020/476, reg. 4(6)
Contents
- Part 1: GENERAL
- 1Citation, commencement and application
- 2Interpretation
- 2ADisapplication of section 1(1A) of the Social Security Administration Act 1992
- 3Rounding of fractions
- Part 2: THE ASSESSMENT PHASE
- 4The end of the assessment phase
- 5The assessment phase – previous claimants
- 6The assessment phase – claimants appealing against a decision Repealed
- 7Circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arises does not apply
- Part 3: CONDITIONS OF ENTITLEMENT – CONTRIBUTORY ALLOWANCE
- 7AConditions relating to national insurance and relevant earnings
- 8Relaxation of the first contribution condition
- 9Condition relating to youth – claimants aged 20 or over but under 25
- 10Condition relating to youth – previous claimants
- 11Condition relating to youth – residence or presence
- 12Condition relating to youth – full-time education
- 13Modification of the relevant benefit year
- Part 4: CONDITIONS OF ENTITLEMENT – INCOME-RELATED ALLOWANCE
- 14Meaning of education
- 15Claimants to be treated as receiving education
- 16Claimants not to be treated as receiving education
- 17Courses of study
- 18Circumstances in which the condition that the claimant is not receiving education does not apply
- Part 5: LIMITED CAPABILITY FOR WORK
- 19Determination of limited capability for work
- 20Certain claimants to be treated as having limited capability for work
- 21Information required for determining capability for work
- 22Failure to provide information in relation to limited capability for work
- 23Claimant may be called for a medical examination to determine whether the claimant has limited capability for work
- 24Matters to be taken into account in determining good cause in relation to regulations 22 or 23
- 25Hospital in-patients
- 26Claimants receiving certain regular treatment
- 27Claimant to be treated as having limited capability for work throughout a day
- 28Night workers
- 29Exceptional circumstances
- 30Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made
- 31Claimant who claims jobseeker's allowance to be treated as not having limited capability for work Repealed
- 32Certain claimants to be treated as not having limited capability for work
- 32AClaimants to be treated as not having limited capability for work at the end of the period covered by medical evidence
- 33Additional circumstances where claimants are to be treated as having limited capability for work
- Part 6: LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY
- 34Determination of limited capability for work-related activity
- 35Certain claimants to be treated as having limited capability for work-related activity
- 35ARelevant linked cases – limited capability for work-related activity
- 36Information required for determining capability for work-related activity
- 37Failure to provide information in relation to work-related activity
- 38Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity
- 39Matters to be taken into account in determining good cause in relation to regulations 37 or 38
- Part 7: EFFECT OF WORK ON ENTITLEMENT TO AN EMPLOYMENT AND SUPPORT ALLOWANCE
- 40A claimant who works to be treated as not entitled to an employment and support allowance
- 41Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule 1 to the Act
- 42Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule 1 to the Act
- 43Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work
- 44Claimants who are treated as not entitled to any allowance at all by reason of regulation 40(1) are to be treated as not having limited capability for work
- 45Exempt work
- 46Effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment
- Part 8: CONDITIONALITY
- Chapter 1: Work-focused health-related assessment
- 47Requirement to take part in a work-focused health-related assessment Repealed
- 48Work-focused health-related assessment Repealed
- 49Notification of assessment Repealed
- 50Determination of the place of the work-focused health-related assessment Repealed
- 51Taking part in a work-focused health-related assessment Repealed
- 52Deferral of requirement to take part in a work-focused health-related assessment Repealed
- 53Failure to take part in a work-focused health-related assessment Repealed
- Chapter 2: Work-focused interviews
- 54Requirement to take part in a work-focused interview
- 55Work-focused interview
- 56Notification of interview
- 57Taking part in a work-focused interview
- 58Action plan Repealed
- 59Deferral of requirement to take part in a work-focused interview
- 60Requirement to take part in a work-focused interview not to apply
- 61Failure to take part in a work-focused interview
- 62Contracting out certain functions relating to work-focused interviews
- Chapter 3: Reduction of employment and support allowance
- 63Reduction of employment and support allowance
- 64Cessation of reduction
- 64AHardship payments
- 64BCircumstances in which a claimant is to be treated as being in hardship
- 64CMatters to be taken into account in determining hardship
- 64DThe amount of a hardship payment
- Chapter 4: Notification
- 65Notification under this Part
- Chapter 5: Modification of the Act in relation to claims to which section 5(1)(c) of the Administration Act applies
- 66Modifications of the Act
- Part 9: AMOUNTS OF ALLOWANCE
- Chapter 1: Prescribed amounts
- 67Prescribed amounts
- 68Polygamous marriages
- 69Special cases
- 70Special cases: supplemental – persons from abroad
- 71Definition of non-dependant
- Chapter 2: Deductions from the contributory allowance
- 72Permanent health insurance
- 72AFinancial Assistance Scheme
- 73Councillor's allowance
- 74Deductions for pension payment and PPF payment
- 75Payments treated as not being payments to which section 3 applies
- 76Deductions for councillor's allowance
- 77Date from which payments are to be taken into account
- 78Date from which a change in the rate of the payment takes effect
- 79Calculation of payment made other than weekly
- Chapter 3: Statutory payments
- 80Effect of statutory maternity pay on a contributory allowance
- 81Effect of statutory adoption pay on a contributory allowance
- 82Effect of additional statutory paternity pay on a contributory allowance Repealed
- 82AEffect of statutory shared parental pay on a contributory allowance
- 82BEffect of statutory neonatal care pay on a contributory allowance
- Part 10: INCOME AND CAPITAL
- Chapter 1: General
- 83Calculation of income and capital of members of claimant's family and of a polygamous marriage
- 84Income of participants in the self-employment route
- 85... liable relative payments
- 86Child support Repealed
- 87Calculation of income and capital of students
- 88Calculation of income which consists of earnings of participants in exempt work
- 89Calculation of income where pension payments, PPF periodic payments or councillor's allowance payable
- Chapter 2: Income
- 90Calculation of income
- 91Calculation of earnings derived from employed earner's employment and income other than earnings
- 92Calculation of earnings of self-employed earners
- 93Date on which income is treated as paid
- 94Calculation of weekly amount of income
- Chapter 3: Employed earners
- 95Earnings of employed earners
- 96Calculation of net earnings of employed earners
- Chapter 4: Self-employed earners
- 97Earnings of self-employed earners
- 98Calculation of net profit of self-employed earners
- 99Deduction of tax and contributions for self-employed earners
- Chapter 5: Participants in the self-employment route
- 100Interpretation
- 101Treatment of gross receipts of participants in the self-employment route
- 102Calculation of income of participants in the self-employment route
- 103Deduction in respect of tax for participants in the self-employment route
- Chapter 6: Other income
- 104Calculation of income other than earnings
- 105Capital treated as income
- 106Notional income – deprivation and income on application
- 107Notional income – income due to be paid or income paid to or in respect of a third party
- 108Notional income – other income
- 109Notional income – calculation and interpretation
- Chapter 7: Capital
- 110Capital limit
- 111Calculation of capital
- 112Income treated as capital
- 113Calculation of capital in the United Kingdom
- 114Calculation of capital outside the United Kingdom
- 115Notional capital
- 116Diminishing notional capital rule
- 117Capital jointly held
- 118Calculation of tariff income from capital
- Chapter 8: ... liable relative payments
- 119Interpretation
- 120Treatment of ... liable relative payments
- 121Disregard of payments treated as not relevant income
- 122Period over which periodical payments are to be taken into account
- 123Period over which payments other than periodical payments are to be taken into account
- 124Calculation of the weekly amount of a ... liable relative payment
- 125Date on which a ... liable relative payment is to be treated as paid
- 126Liable relative payments to be treated as capital Repealed
- Chapter 9: Child support
- 127Regulation 127 Repealed
- 128Regulation 128 Repealed
- 129Regulation 129 Repealed
- 130Regulation 130 Repealed
- Chapter 10: Students
- 131Interpretation
- 132Calculation of grant income
- 133Calculation of covenant income where a contribution is assessed
- 134Calculation of covenant income where no grant income or no contribution is assessed
- 135Relationships with amounts to be disregarded under Schedule 8
- 136Other amounts to be disregarded
- 137Treatment of student loans and postgraduate ... loans
- 138Treatment of payments from access funds
- 139Treatment of fee loans
- 139ATreatment of loans for specific purposes
- 140Disregard of contribution
- 141Further disregard of student's income
- 142Income treated as capital
- 143Disregard of changes occurring during summer vacation
- Part 11: SUPPLEMENTARY PROVISIONS
- Chapter 1: Miscellaneous
- 144Waiting days
- 145Linking rules
- 146Advance awards
- 147Recovery orders
- 147AClaimants appealing a decision
- Chapter 2: Work or training beneficiaries
- 148Work or training beneficiaries Repealed
- 149Linking rules – limited capability for work Repealed
- 150Linking rules – limited capability for work-related activity Repealed
- Chapter 3: Temporary absence from Great Britain
- 151Absence from Great Britain
- 152Short absence
- 153Absence to receive medical treatment
- 154Absence in order to receive NHS treatment
- 155Absence of member of family of member of Her Majesty's forces
- 155AAbsence where His Majesty’s Government provides public information to advise British nationals to leave a country or territory or arranges the evacuation of British nationals from that country or territory
- Chapter 4: Membership of household
- 156Circumstances in which a person is to be treated as being or not being a member of the household
- Part 12: DISQUALIFICATION
- 157Disqualification for misconduct etc.
- 158Meaning of “person in hardship”
- 159Treating a claimant as not having limited capability for work
- 160Exceptions from disqualification for imprisonment
- 161Suspension of payment of a contributory allowance during imprisonment
- Part 13: URGENT CASES
- 162Urgent cases
- 163Applicable amounts in urgent cases
- 164Assessment of income and capital in urgent cases
- Part 14: PERIODS OF LESS THAN A WEEK
- 165Entitlement for less than a week – amount of an employment and support allowance payable
- 166Relevant week
- 167Modification in the calculation of income
- 168Reduction in certain cases
- 169Payment of a contributory allowance for days of certain regular treatment
- Signature
- Schedule 1: HER MAJESTY'S FORCES
- Part 1: Prescribed establishments and organisations
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- 8Paragraph 8
- 9Paragraph 9
- Part 2: Establishments and organisations of which Her Majesty's forces do not consist
- 10Paragraph 10
- Schedule 2: ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK
- 1Physical disabilities
- 2Mental, cognitive and intellectual function assessment
- Schedule 3ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY
- Schedule 4: AMOUNTS
- Part A1: Prescribed amounts for an income-related allowance
- A1Paragraph A1
- Part 1: Prescribed amounts for a contributory allowance
- 1Paragraph 1
- Part 2: Premiums
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- 5Pensioner premium
- 6Severe disability premium
- 7Enhanced disability premium
- 8Carer premium
- 9Persons in receipt of concessionary payments
- 10Persons in receipt of benefit
- Part 3: Weekly amount of premiums specified in Part 2
- 11Paragraph 11
- Part 4: The components The component
- 12Paragraph 12
- 12AParagraph 12A
- 13Paragraph 13
- 13AParagraph 13A
- Schedule 5: SPECIAL CASES
- 1Amounts prescribed for the purposes of section 4(2) of the Act
- 2Amounts prescribed for the purposes of sections 2(1) and 4(2) of the Act
- Schedule 6: HOUSING COSTS
- Paragraph
- 1Paragraph 1
- 2Remunerative work
- 3Previous entitlement to other income-related benefits
- 4Circumstances in which a person is liable to meet housing costs
- 5Circumstances in which a person is to be treated as occupying a dwelling as the home
- 6Housing costs not met
- 7Apportionment of housing costs
- 8Existing housing costs
- 9New housing costsHousing costs
- 10General exclusions from paragraphs 8 and 9 paragraph 9
- 11The calculation for loans
- 12General provisions applying to new and existing housing costs
- 13The standard rate
- 14Excessive Housing Costs
- 15Linking rule
- 16Loans on residential property
- 17Loans for repairs and improvements to the dwelling occupied as the home
- 18Other housing costs Housing costs
- 19Non-dependant deductions
- 20Continuity with income support, an income-based jobseeker's allowance or state pension credit
- Schedule 7: SUMS TO BE DISREGARDED IN THE CALCULATION OF EARNINGS
- 1Paragraph 1
- 2Paragraph 2
- 3Paragraph 3
- 3AParagraph 3A
- 4Paragraph 4
- 5Paragraph 5
- 5AParagraph 5A
- 6Paragraph 6
- 7Paragraph 7
- 8Paragraph 8
- 9Paragraph 9
- 10Paragraph 10
- 11Paragraph 11
- 11AParagraph 11A
- 12Paragraph 12
- 13Paragraph 13
- 14Paragraph 14
- Schedule 8: SUMS TO BE DISREGARDED IN THE CALCULATION OF INCOME OTHER THAN EARNINGS
- 1Paragraph 1
- 1AParagraph 1A
- 2Paragraph 2
- 2AParagraph 2A
- 3Paragraph 3
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- 8Paragraph 8
- 9Paragraph 9
- 10Paragraph 10
- 11Paragraph 11
- 12Paragraph 12
- 13Paragraph 13
- 14Paragraph 14
- 15Paragraph 15
- 15AParagraph 15A
- 16Paragraph 16
- 17Paragraph 17
- 18Paragraph 18
- 19Paragraph 19
- 20Paragraph 20
- 21Paragraph 21
- 22Paragraph 22
- 23Paragraph 23
- 24Paragraph 24
- 25Paragraph 25
- 26Paragraph 26
- 27Paragraph 27
- 28Paragraph 28
- 29Paragraph 29
- 29AParagraph 29A
- 30Paragraph 30
- 31Paragraph 31
- 32Paragraph 32
- 33Paragraph 33
- 34Paragraph 34
- 35Paragraph 35
- 35AParagraph 35A
- 36Paragraph 36
- 37Paragraph 37
- 38Paragraph 38
- 39Paragraph 39
- 40Paragraph 40
- 41Paragraph 41
- 42Paragraph 42
- 43Paragraph 43
- 44Paragraph 44
- 45Paragraph 45
- 46Paragraph 46
- 47Paragraph 47
- 48Paragraph 48
- 49Paragraph 49
- 50Paragraph 50
- 51Paragraph 51
- 52Paragraph 52
- 53Paragraph 53
- 54Paragraph 54
- 55Paragraph 55
- 56Paragraph 56
- 57Paragraph 57
- 58Paragraph 58
- 59Paragraph 59
- 60Paragraph 60
- 61Paragraph 61
- 62Paragraph 62
- 63Paragraph 63
- 64Paragraph 64
- 65Paragraph 65 Repealed
- 66Paragraph 66
- 67Paragraph 67
- 68Paragraph 68
- 69Paragraph 69
- 70Paragraph 70
- 71Paragraph 71
- 72Paragraph 72
- 73Paragraph 73
- 74Paragraph 74
- 75Paragraph 75
- 76Paragraph 76
- 77Paragraph 77
- Schedule 9: CAPITAL TO BE DISREGARDED
- 1Paragraph 1
- 1AParagraph 1A
- 2Paragraph 2
- 3Paragraph 3
- 4Paragraph 4
- 5Paragraph 5
- 6Paragraph 6
- 7Paragraph 7
- 8Paragraph 8
- 9Paragraph 9
- 10Paragraph 10
- 11Paragraph 11
- 11AParagraph 11A
- 12Paragraph 12
- 13Paragraph 13
- 14Paragraph 14
- 15Paragraph 15
- 16Paragraph 16
- 17Paragraph 17
- 18Paragraph 18
- 19Paragraph 19
- 20Paragraph 20
- 21Paragraph 21
- 22Paragraph 22
- 23Paragraph 23
- 23AParagraph 23A
- 24Paragraph 24
- 25Paragraph 25
- 26Paragraph 26
- 27Paragraph 27
- 28Paragraph 28
- 29Paragraph 29
- 30Paragraph 30
- 31Paragraph 31
- 32Paragraph 32
- 32AParagraph 32A
- 33Paragraph 33
- 34Paragraph 34
- 35Paragraph 35
- 36Paragraph 36
- 37Paragraph 37
- 38Paragraph 38
- 38AParagraph 38A
- 39Paragraph 39
- 40Paragraph 40
- 41Paragraph 41
- 42Paragraph 42
- 43Paragraph 43
- 44Paragraph 44
- 45Paragraph 45
- 46Paragraph 46
- 47Paragraph 47
- 48Paragraph 48
- 49Paragraph 49
- 50Paragraph 50
- 51Paragraph 51
- 52Paragraph 52
- 53Paragraph 53
- 54Paragraph 54
- 55Paragraph 55
- 56Paragraph 56
- 57Paragraph 57
- 58Paragraph 58
- 59Paragraph 59
- 60Paragraph 60
- 61Paragraph 61
- 62Paragraph 62
- 63Paragraph 63
- 64Paragraph 64
- 65Paragraph 65
- 66Paragraph 66
- Explanatory note