The Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010

Made: 27th July 2010

Laid before Parliament: 27th July 2010

Coming into force in accordance with regulation 1(2) and (3)

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 123(1)(d) and (e), 135(1), 137(1) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 1992 , section 79(4) of the Social Security Act 1998 , paragraphs 4(4) and (6), 20(1) and 23(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 2000 , sections 22, 24, 25(2), (3) and (5), 28(2) and 29 of, and paragraph 2 of Schedule 2 and paragraphs 1(1), 3(b), 7 and 8(1) of Schedule 4 to, the Welfare Reform Act 2007 .

The Secretary of State has not referred these Regulations to the Social Security Advisory Committee as it appears to the Secretary of State that by reason of urgency it is inexpedient to do so .

The Secretary of State has not undertaken consultation with organisations appearing to the Secretary of State to be representative of the authorities concerned, as it appears to the Secretary of State that by reason of urgency it is inexpedient to do so .

PART 1 — GENERAL

Citation and commencement

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• (1) These Regulations may be cited as the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010.

• (2) Subject to paragraph (3), these Regulations come into force on 1st October 2010.

• (3) Regulations 24 (revocation of transitional claims provisions) and 25(2) (amendment of the 2008 Regulations) and paragraphs 1A and 2 of Schedule 4 (consequential amendments to the 2008 Regulations) come into force on 31st January 2011.

Interpretation

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• (1) In these Regulations—

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

• “the 2008 Regulations” means the Employment and Support Allowance Regulations 2008 ;

• “benefit week” has the same meaning as in the 2008 Regulations;

• “contributory allowance” means an employment and support allowance to which a person is entitled by virtue of these Regulations which was based on an award of incapacity benefit or severe disablement allowance to which the person was entitled ;

• “conversion decision”, in relation to a notified person, has the meaning given in regulation 5(2);

• “effective date”, in relation to a conversion decision, is to be construed in accordance with regulation 13;

• “enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 1978 );

• “income-related allowance” means an employment and support allowance to which a person is entitled by virtue of these Regulations which was based on an award of income support to which the person was entitled ;

• “notified person” has the meaning given in regulation 4(2);

• “pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 1995 ;

• “relevant deduction”, in relation to a person, includes such of the following deductions as fall to be made in relation to the person—any deduction made under any of the following provisions of the Social Security (Claims and Payments) Regulations 1987 —regulation 34A (deductions of mortgage interest which shall be made from benefit and paid to qualified lenders),regulation 34B (deductions of mortgage interest which may be made from benefits and paid to qualified lenders in other cases), orregulation 35 (deductions which may be made from benefit and paid to third parties);any deduction made under the Community Charges (Deductions from Income Support) (No.2) Regulations 1990 (deductions which may be made from benefit for meeting sums due in respect of community charges);any deduction made under the Fines (Deductions from Income Support) Regulations 1992 (deductions which may be made from an offender's benefit);any deduction made under the Council Tax (Deductions from Income Support) Regulations 1993 (deductions which may be made from benefit for meeting sums due in respect of council tax);any deduction in respect of overpayment recovery or recovery of social fund loans made under any of the following provisions of the Administration Act —section 71 (overpayments-general),section 74 (income support and other payments), orsection 78 (recovery of social fund awards).

• (2) A requirement under these Regulations to give a notice (or to notify) is a requirement to give notice in writing; and for that purpose—

• (a) a message sent by electronic communication shall be treated as a notice given in writing; and

• (b) electronic communication has the meaning given in section 15(1) of the Electronic Communications Act 2000 .

• (3) For the purposes of these Regulations, the conversion phase, in relation to any person entitled to an existing award or awards, is the period which—

• (a) begins in accordance with regulation 4(4); and

• (b) ends in accordance with regulation 5(6).

• (4) In these Regulations, any reference to Step 1, 2 or 3, in relation to any person, is to be construed in accordance with regulation 8.

Persons to whom these Regulations apply

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In these Regulations, regulations 4 to 22 apply to any person who, on or after 1st October 2010, is entitled to an existing award.

PART 2 — CONVERSION DECISIONS

The notice commencing the conversion phase

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• (1) Subject to paragraph (5), the Secretary of State may at any time issue a notice to any person who is entitled to an existing award.

• (2) Any person to whom such a notice is issued is referred to in these Regulations as a notified person.

• (3) The notice must inform the notified person—

• (a) that an existing award is to be converted into an award of an employment and support allowance if certain conditions are satisfied;

• (b) that, if those conditions are not satisfied, the existing award will not be converted and will terminate by virtue of these Regulations;

• (c) of the requirements that must be met in order to satisfy those conditions; and

• (d) of such other matters as the Secretary of State considers appropriate.

• (4) The issue of the notice to a notified person begins the conversion phase in relation to that person, with effect from the date of issue.

• (5) No notice may be issued to any person—

• (a) who reaches pensionable age at any time before 6th April 2014; or

• (b) at any time when payment of the existing award to the person is subject to adjustment under regulation 4 of the Social Security (Transitional Payments) Regulations 2009 (adjustment of subsequent payments following an adjusting payment of benefit).

• (6) Where a person is entitled to—

• (a) an existing award of incapacity benefit or severe disablement allowance; and

• (b) an existing award of income support,

the notice issued to the person under this regulation shall have effect in relation to both such awards.

Deciding whether an existing award qualifies for conversion

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• (1) In relation to the existing award or awards to which a notified person (“P”) is entitled, the Secretary of State must, except where paragraph (8)(a) applies, make a conversion decision in accordance with these Regulations.

• (2) A conversion decision is—

• (a) a decision that P's existing award or awards qualify for conversion into an award of an employment and support allowance in accordance with regulation 7 (qualifying for conversion); or

• (b) a decision that P's existing award or awards do not qualify for conversion into an award of an employment and support allowance.

• (3) A notice of a conversion decision under paragraph (2)(a) must specify the amount of an employment and support allowance to which P is entitled on the effective date (subject to any relevant deductions).

• (4) The amount referred to in paragraph (3) is to be determined in accordance with regulation 8 (amount of an employment and support allowance on conversion).

• (5) The Secretary of State must notify P of the Secretary of State's conversion decision.

• (6) The conversion phase ends in relation to P—

• (a) immediately before the effective date of the conversion decision notified to P; or

• (b) if earlier, when P's entitlement to the award or awards to which the notice under regulation 4 (notice commencing the conversion phase) relates otherwise ceases to be subject to conversion (because entitlement to the award has terminated or for some other reason).

• (7) The effective date of any conversion decision is to be determined in accordance with regulation 13 (effective date of a conversion decision).

• (8) In the event that P's entitlement to an existing award ceases to be subject to conversion (for example, because P's entitlement to an award of income support has ceased to fall within paragraph (c) of the definition of “existing award” in paragraph 11 of Schedule 4 to the 2007 Act)—

• (a) before a conversion decision is made, the Secretary of State must notify P that the conversion phase has ended without a conversion decision being made; or

• (b) after the making of a conversion decision but before its effective date, the Secretary of State must notify P that the conversion decision shall not come into effect.

• (9) On the giving of a notice under paragraph (8)(b), the conversion decision to which it relates shall lapse with immediate effect.

Application of certain enactments for purpose of making conversion decisions

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• (1) The enactments listed in paragraph (2) apply, subject to the modifications specified in Schedule 1, for the purposes of—

• (a) enabling the Secretary of State to make in relation to any person a conversion decision under this Part; and

• (b) providing for the revision or supersession of such decisions at any time before the effective date.

• (2) The listed enactments are—

• (a) Part 1 of the 2007 Act;

• (b) the 2008 Regulations;

• (c) regulation 32(1) and (1A) of the Social Security (Claims and Payments) Regulations 1987 (information to be given);

• (d) Chapter 2 of Part 1 of the Social Security Act 1998 (social security decisions and appeals); and

• (e) the Social Security and Child Support (Decisions and Appeals) Regulations 1999 .

• (3) In the application of the enactments listed in paragraph (2)(d) and (e), the conversion decision is to be treated as if it were a decision as to a person's entitlement to an employment and support allowance which had been made on a claim.

Qualifying for conversion

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• (1) Subject to paragraphs (2) and (3), for the purposes of regulation 5(2)(a) (deciding whether an existing award qualifies for conversion), an existing award or awards to which a notified person (“P”) is entitled qualify for conversion into an award of an employment and support allowance under these Regulations only if “P” satisfies the basic conditions set out in section 1(3)(a) to (d) and (f) of the 2007 Act.

• (2) Where P is entitled to an award of an employment and support allowance under the 2007 Act and it has been determined in respect of that entitlement that P—

• (a) has limited capability for work, or

• (b) is to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations ,

in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).

• (3) Where P would be entitled to an award of an employment and support allowance under the 2007 Act but for the application of section 1A of that Act (duration of contributory allowance) and it had been determined in respect of the entitlement that had ceased that P—

• (a) had limited capability for work; or

• (b) was to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations,

in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).

Amount of an employment and support allowance on conversion

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• (1) For the purposes of regulation 5(3), the amount of an employment and support allowance to which a notified person is entitled shall be determined as follows.

Step 1

Step 2

Step 3

• (2) In a case to which regulation 7(2) applies (cases where a person is already entitled to an award of an employment and support allowance), a determination that the person has, or does not have, limited capability for work-related activity made in respect of the person’s current entitlement to an award of an employment and support allowance is to be treated as having been made for the purposes of Step 1.

Determining entitlement to a transitional addition

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• (1) In relation to any notified person whose existing award or awards qualify for conversion into an employment and support allowance—

• (a) the person's entitlement (if any) to a transitional addition; and

• (b) the amount of any such transitional addition,

are to be determined in accordance with regulation 10(2) (transitional addition: incapacity benefit or severe disablement allowance) or 11(2) (transitional addition: income support).

• (2) The amount of transitional addition to which a notified person is entitled is subject to reduction in accordance with regulations 18 to 20.

• (3) The entitlement of a notified person to any transitional addition terminates in accordance with regulation 21 (termination of transitional addition).

Transitional addition: incapacity benefit or severe disablement allowance

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• (1) This regulation applies to any notified person who is entitled to an existing award of incapacity benefit or severe disablement allowance (and for these purposes it is irrelevant whether the person is also entitled to any existing award of income support).

• (2) In any case falling within paragraph (1)—

• (a) the notified person shall be entitled to a transitional addition if Amount A exceeds Amount B; and

• (b) the amount of transitional addition to which the notified person is entitled under this paragraph shall be equal to the amount of any such excess.

• (3) Amount A is the amount of the weekly rate of the existing award applicable to the notified person.

• (4) To calculate Amount B—

• (a) take the amount prescribed under paragraph (2) of regulation 67 of the 2008 Regulations (prescribed amounts for purpose of calculating a contributory allowance) which is applicable to the notified person; and

• (b) add the amount of the applicable component determined in accordance with regulation 12(5).

• (5) In paragraph (3), the reference to the weekly rate of an existing award applicable to the notified person is to—

• (a) in the case of incapacity benefit, the weekly rate payable—

• (i) under section 30B(2), (6) or (7) (subject to any deduction made in accordance with section 46(3) of the Pension Schemes Act 1993) of the Contributions and Benefits Act (incapacity benefit: rate),

• (ii) under section 40(5) or 41(4) of that Act (long-term incapacity benefit for widows and for widowers),

• (iii) under section 80, 81 or 86A of that Act (incapacity benefit: beneficiary’s dependent children; restrictions on increase – child not living with beneficiary etc; and increases for adult dependants),

• (iv) by virtue of regulation 11(4) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (former sickness benefit), or

• (v) by virtue of regulations 17(1) (transitional awards of long-term incapacity benefit) or 17A (awards of incapacity benefit in cases where periods of interruption of employment and periods of incapacity for work link) of those Regulations; or

• (b) in the case of severe disablement allowance, the weekly rate payable under sections 68(7), 69(1) and 90 of the Contributions and Benefits Act (as they have effect by virtue of article 4 of the Welfare Reform and Pensions Act 1999 (Commencement No.9 and Transitional and Savings Provisions) Order 2000 ).

• (6) Subject to paragraph (7), in determining the weekly rate of incapacity benefit or severe disablement allowance for the purposes of paragraph (5) the following amounts shall be disregarded–

• (a) any relevant deduction within the meaning of regulation 2(1) (interpretation); and

• (b) any other deduction relating to the existing award which is made by virtue of the Contributions and Benefits Act, the Administration Act or any other Act which is amended by Schedule 3 to the 2007 Act, the Social Security (Incapacity for Work) Act 1994 or by virtue of regulations made under those Acts.

• (7) Where any of the enactments referred to in paragraph (6)(b) provide for an additional amount of incapacity benefit or severe disablement allowance to be payable in prescribed circumstances (such as an increase for an adult dependant) but that additional amount is reduced or not payable in relation to P (such as where the dependant has earnings in excess of the standard amount of an increase), in determining the weekly rate of incapacity benefit or severe disablement allowance, only the reduced additional amount (if any) is to be taken into account.

Transitional addition: income support

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• (1) This regulation applies to any notified person who is entitled to an existing award of income support (and for these purposes it is irrelevant whether the person is also entitled to any existing award of incapacity benefit or severe disablement allowance).

• (2) In any case falling within paragraph (1)—

• (a) the notified person shall be entitled to a transitional addition if Amount C exceeds Amount D; and

• (b) the amount of transitional addition to which the notified person is entitled under this paragraph shall be equal to the amount of any such excess.

• (3) To calculate Amount C—

• (a) take the notified person's weekly applicable amount under regulation 17 or 18 of, and Schedule 2 to, the Income Support (General) Regulations 1987 (applicable amounts);