Explanatory note

These Regulations further amend—

Regulation 2 amends regulation 3(j) of the Social Security (Claims and Payments) Regulations 1987 (claims not required for entitlement to benefit in certain cases) so that a claim will be required where the claimant is pursuing an Employment and Support Allowance appeal, if the determination against which the appeal is made was made following a previous unsuccessful appeal by the claimant.

Regulation 3 amends the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988 to ensure that, where employment and support allowance is awarded for a period for which child benefit is also in payment, the child benefit can be offset against the employment and support allowance due.

Regulation 4 amends provisions in the Social Security Contributions and Benefits Act 1992 to allow satisfaction of the first or second National Insurance contribution conditions for employment and support allowance to establish entitlement to deemed earnings factors for pensioners.

Regulation 5 makes a minor amendment to regulation 9 of the Social Security (Incapacity Benefit - Increases for Dependants) Regulations 1994 (increase of incapacity benefit for adult dependants and persons having the care of children or qualifying young persons) so that that the appropriate definition of pensionable age is applied.

Regulation 6 makes four amendments to the Social Security (Incapacity for Work) (General) Regulations 1994–

• Regulation 2 is amended to update the definition of ‘medical evidence’ to reflect the fact that health care professionals, as well as doctors, may provide advice to decision-makers.

• A new regulation 16A is inserted so as to provide for persons to be treated as capable of work when the period covered by their medical evidence has expired. A person will only be so treated when the Secretary of State has sent a request for further evidence and at least six weeks has passed since that request was made. This applies where a person does not supply further evidence in that period, or does not otherwise make contact with the Secretary of State to indicate that they wish to have their incapacity for work determined.

• Regulation 17 (exempt work) is amended to include work carried out under the supervision of a person employed by a community interest company, as established under the Companies (Audit, Investigations and Community Enterprise) Act 2004.

• Regulation 17 is further amended to make it clear that a period of specified work is a continuous period of 52 weeks.

Regulation 7 makes minor amendments to the Social Security and Child Support (Decisions and Appeals) Regulations 1999.

Regulation 8 makes a minor amendment to the Social Security (Claims and Information) Regulations 2007.

Regulation 9 makes a number of amendments to the Employment and Support Allowance Regulations 2008;

• The definition of ‘period of limited capability for work’ in regulation 2 is amended to clarify the period for which entitlement to an employment and support allowance can be considered.

• Minor amendments are made to regulations 5 to 7, which provide for the beginning and end of the assessment phase, including for the purpose of reflecting the new regulation 147A.

• Regulation 13 is substituted by a new regulation. This clarifies the position where a claim for employment and support allowance has been made resulting in an award of National Insurance credits only. The definition of relevant benefit year is modified for claimants who then make a later claim which would be successful if the modified relevant benefit year is used when their claim is being considered.

• Regulation 30 is modified to create a link between an unsuccessful claim for incapacity benefit and an unsuccessful claim for employment and support allowance. The amendment means that a claimant will not generally be treated as having limited capability for work if a claim for ESA is made within six months of a determination that the claimant is capable of work or is to be treated as capable of work, under the regulations relating to incapacity benefit.

• A new regulation 32A is inserted to create the same position in Employment and Support Allowance as has been created in relation to incapacity benefit by the insertion of new regulation 16A of the Social Security (Incapacity for Work) (General) Regulations 1995 described above.

• Regulation 45 is amended to create the same position in employment and support allowance as is described in relation to regulation 17 of the Social Security (Incapacity for Work) (General) Regulations 1995 above.

• Regulations 53 and 61 are amended in respect of the matters which must be considered in determining whether a claimant has good cause for failure to undertake a work-focused interview or work-focused health related assessment.

• A new regulation 147A is inserted to make provision for claimants who appeal a decision of the Secretary of State which embodies a determination that they do not have limited capability for work. The amendment means that, unless there is an intervening change of circumstances, the determination whether the claimant has limited capability for work will be made when the appeal is determined and will reflect that determination.

• Paragraph 5 of Schedule 7 is amended to create a £20 income disregard where the claimant is in receipt of a royalty payment within the scope of regulation 92(2).

• Minor amendments are made to regulations 154, 155 and 163, and paragraph 10 of schedule 6.

A full impact assessment has not been published for this instrument as it has no impact on the costs of business, charities or voluntary sectors.