The Employment and Support Allowance Regulations (Northern Ireland) 2008

Made: 1st July 2008

Coming into operation in accordance with regulation 1

This Rule contains only regulations made by virtue of, or consequential upon, provisions of Part 1 of the Welfare Reform Act (Northern Ireland) 2007.

PART 1 — GENERAL

Citation and commencement

1

• (1) These Regulations may be cited as the Employment and Support Allowance Regulations (Northern Ireland) 2008 and shall, subject to paragraphs (2) and (3), come into operation on 27th October 2008.

• (2) Regulation 128(6)(a) and paragraph 15(2) of Schedule 6, so far as they apply to a maintenance calculation, in relation to a particular case shall come into operation on the day on which paragraph 12(e) of Schedule 3 to the 2000 Act comes into operation for the purposes of that type of case.

• (2A) These Regulations do not apply to a particular case on any day on which Article 39(1)(b) of the Welfare Reform (Northern Ireland) Order 2015 (abolition of income-related employment and support allowance) is in force and applies in relation to that case.

• (3) Regulation 82 and paragraph 4 of Schedule 8, so far as they apply to additional statutory paternity pay, shall come into operation on the day on which regulations made under or by virtue of sections 167ZEA to 167ZEE of the Contributions and Benefits Act[^f00005] come into operation.

Interpretation

2

• (1) In these Regulations—

• “the 2015 Order” means the Welfare Reform (Northern Ireland) Order 2015;

• “Abbeyfield Home” means an establishment run by the Abbeyfield Society including any body corporate or incorporate which is affiliated to that Society;

• “the Act” means the Welfare Reform Act (Northern Ireland) 2007;

• ...

• “adoption leave” means a period of absence from work on ordinary or additional adoption leave under Article 107A or 107B of the Employment Rights Order[^f00006];

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

• “aircraft worker” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where—the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mail carried on that aircraft; andthe contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,but does not include a person who is in employment as a member of Her Majesty’s forces;

• “approved blood scheme” means a scheme established or approved by the Secretary of State, or trust established with funds provided by the Secretary of State, for the purpose of providing compensation in respect of a person having been infected from contaminated blood products;

• “the Armed Forces and Reserve Forces Compensation Scheme” means the scheme established under section 1(2) of the Armed Forces (Pensions and Compensation) Act 2004[^f00007];

• “armed forces independence payment” means armed forces independence payment under the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011;

• “attendance allowance” means—an attendance allowance under section 64 of the Contributions and Benefits Act[^f00008];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 under regulations made under paragraph 4(2)(b) of Schedule 8 to that Act (payments for constant attendance in workmen’s compensation cases);a payment by virtue of Article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983[^f00009] or any analogous payment;any payment based on the need for attendance which is paid as an addition to a war disablement pension;

• “basic rate” has the meaning given by section 989 of the Income Tax Act 2007;

• “the benefit Acts” means the Contributions and Benefits Act, the Jobseekers Order , Part 1 of the Act and the Pensions Act (Northern Ireland) 2015 ;

• “benefit week” means a period of 7 days ending on such day as the Department may direct but for the purposes of calculating any payment of income “benefit week” means the period of 7 days ending on the day before the first day of the first benefit week following the date of claim or the last day on which an employment and support allowance is paid if it is in payment for less than a week;

• “board and lodging” means—accommodation provided to a person or, if the person is a member of a family, to that person or any other member of that person’s family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of that person’s family) and are consumed in that accommodation or associated premises; oraccommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,except accommodation provided by a close relative of the person or any other member of the person’s family, or other than on a commercial basis;

• “carer’s allowance” means an allowance under section 70 of the Contributions and Benefits Act[^f00010];

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

• “the Caxton Foundation” means the charitable trust of that name established on 28th March 2011, for the benefit of certain persons suffering from hepatitis C and other persons eligible for payment in accordance with its provisions;

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

• “child abuse payment” means a payment from a scheme established or approved by the Secretary of State for the purpose of providing compensation in respect of historic institutional child abuse in the United Kingdom;

• “child disability payment” has the meaning given in the DACYP Regulations (see regulation 2 of those Regulations);

• “child tax credit” means a child tax credit under section 8 of the Tax Credits Act;

• “the Children Order” means the Children (Northern Ireland) Order 1995[^f00011];

• “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;

• “concessionary payment” means a payment made under arrangements made by the Department with the consent of the Department of Finance and Personnel which is charged... to a Departmental Expenditure Vote to which payments of benefit under the benefit Acts are charged;

• “confinement” has the meaning given by section 167(1) of the Contributions and Benefits Act[^f00012];

• “contribution-based jobseeker’s allowance” means an allowance under the Jobseekers (Northern Ireland) Order 1995 as amended by the provisions of Part 1 of Schedule 12 to the Welfare Reform (Northern Ireland) Order 2015 that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers (Northern Ireland) Order 1995 as that Order has effect apart from those provisions;

• “councillor” means a member of a district council;

• “councillor’s allowance” means such payments for or in connection with the work which a person undertakes as a councillor;

• “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 spouses of each other;

• “the DACYP Regulations” means the Disability Assistance for Children and Young People (Scotland) Regulations 2021;

• “daily living component” means the daily living component of personal independence payment under Article 83 of the 2015 Order;

• “the Decisions and Appeals Regulations” means the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999[^f00013];

• “the Department”, for the purposes of Chapters 2 and 3 of Part 8, includes the Department for Employment and Learning;

• “dependent child” 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;

• “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;

• “the Disabled Persons (Employment) Act” means the Disabled Persons (Employment) Act (Northern Ireland) 1945[^f00014];

• “disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act[^f00015];

• “doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom of whom the Department may request a medical opinion, a person registered or recognised as such in the country in which the person undertakes medical practice;

• “dwelling” means any residential accommodation, whether or not consisting of the whole or part of a building and whether or not comprising separate and self-contained premises;

• “dwelling occupied as the home” means the dwelling together with any garage, garden ad outbuildings normally occupied by the claimant as the claimant’s home, including any premises part thereof not so occupied which it is impracticable or unreasonable to sell separately together with—any agricultural land adjoining that dwelling; andany land not adjoining that dwelling which it is impracticable or unreasonable to sell separately;

• “the Education and Libraries Order” means the Education and Libraries (Northern Ireland) Order 1986[^f00016];

• “the Eileen Trust” means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions;

• “employed earner” means a person who is gainfully employed in Northern Ireland or the Republic of Ireland either under a contract of service or in an office (including elective office) with general earnings;

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

• “the Employment and Training Act” means the Employment and Training Act (Northern Ireland) 1950[^f00017];

• “the Employment Rights Order” means the Employment Rights (Northern Ireland) Order 1996[^f00018];

• “failure determination” has the meaning given by regulation 63(1);

• “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;

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

• “first year of training” means a period of one year beginning with and including a person’s first day of training.

• “full-time student” has the meaning given by regulation 131;

• “the Fund” means monies made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by the Secretary of State on 24th April 1992 or, in Scotland, on 10th April 1992;

• “Grenfell Tower payment” means a payment made for the purpose of providing compensation or support in respect of the fire on 14th June 2017 at Grenfell Tower;

• “guaranteed income payment” means a payment made under Article 14(1)(b) or 21(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005[^f00019];

• “hardship payment” means an income-related employment and support allowance payable at a reduced rate in accordance with the provisions of regulation 64D;

• “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[^f00020];

• “the Health and Personal Social Services Order” means the Health and Personal Social Services (Northern Ireland) Order 1972[^f00021];

• “Health and Social Services Board” means a body established under Article 16 of the Health and Personal Social Services Order;

• “Health and Social Services Trust” means a Trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991[^f00022], by which functions are exercisable by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994[^f00023];

• “the Horizon system” means any version of the computer system used by the Post Office known as Horizon, Horizon Legacy, Horizon Online or HNG-X;

• “housing association” has the meaning given by Article 3 of the Housing (Northern Ireland) Order 1992[^f00024];

• “housing benefit expenditure” means expenditure in respect of which housing benefit is payable as specified in regulation 13(1) of the Housing Benefit Regulations but does not include any such expenditure in respect of which an additional amount is applicable under regulation 67(1)(c) or 68(1)(d) (housing costs);

• “the Housing Benefit Regulations” means the Housing Benefit Regulations (Northern Ireland) 2006[^f00025];

• “the Immigration and Asylum Act” means the Immigration and Asylum Act 1999[^f00026];

• “income-related benefit” means any of the benefits listed in section 122(1) of the Contributions and Benefits Act[^f00027];

• “the Income Support Regulations” means the Income Support (General) Regulations (Northern Ireland) 1987[^f00028];

• “independent hospital” has the meaning given by Article 2(2) of the Health and Personal Social Services (Quality, Improvement and Regulation) (Northern Ireland) Order 2003[^f00029];

• “the Independent Living Fund (2006)” means the Trust of that name established by a deed dated 10th April 2006 and made between the Secretary of State for Work and Pensions of the one part and Margaret Rosemary Cooper, Michael Beresford Boyall and Marie Theresa Martin of the other part;

• “the Infected Blood Payment Scheme for Northern Ireland” means the scheme of that name administered by the Regional Business Services Organisation established under section 14 of the Health and Social Care (Reform) Act (Northern Ireland) 2009;

• “the Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance Regulations (Northern Ireland) 1996[^f00030];

• “last day of the course” means the last day of the final academic term of the course in which the student is enrolled;

• “LGBT Financial Recognition Scheme payment” means a payment under the Lesbian, Gay, Bisexual and Transgender Financial Recognition Scheme administered under the authority of the Secretary of State for Defence;

• “limited capability for work assessment” means the assessment of whether a person has limited capability for work set out in regulation 19(2) and Schedule 2;

• “local welfare provision” means occasional financial or other assistance given by a Northern Ireland Department, or a person authorised to exercise any function of, or provide a service to, it, to or in respect of individuals for the purpose of—meeting, or helping to meet, an immediate short term need—arising out of an exceptional event, or exceptional circumstances; andthat requires to be met in order to avoid a risk to the well-being of an individual; orenabling individuals to establish or maintain a settled home, where those individuals have been or, without the assistance, might otherwise be—in prison, hospital, a residential care establishment or other institution; orhomeless or otherwise living an unsettled way of life;”.

• “the London Emergencies Trust” means the company of that name (number 09928465) incorporated on 23rd December 2015 and the registered charity of that name (number 1172307) established on 28th March 2017;

• ...

• “the Macfarlane (Special Payments) Trust” means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia;

• “the Macfarlane (Special Payments) (No. 2) Trust” means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;

• “the Macfarlane Trust” means the charitable trust, established partly out of funds provided by the Secretary of State to the Haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;

• “main phase employment and support allowance” means an employment and support allowance where the calculation of the amount payable in respect of the claimant includes a component under section 2(1)(b) or 4(2)(b) of the Act or the claimant is a member of the work-related activity group ;

• “mariner” means a person who is or has been in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—the employment in that other capacity is for the purposes of that ship or vessel or her crew or any passengers or cargo or mail carried by the ship or vessel; andthe contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the ship or vessel is on her voyage,but does not include a person who is in employment as a member of Her Majesty’s forces;

• ...

• “medical evidence” , except in regulation 32A, means—evidence from a health care professional approved by the Department; andevidence (if any) from any health care professional or a hospital or similar institution,or such part of such evidence as constitutes the most reliable evidence available in the circumstances;