EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
2008 No. 794
SOCIAL SECURITY
The Employment and Support Allowance
Regulations 2008
Made
-
-
-
-
25th March 2008
Laid before Parliament
27th March 2008
Coming into force in accordance with regulation 1
CONTENTS
PART 1
General
1.
Citation and commencement
2.
Interpretation
3.
Rounding of fractions
PART 2
The Assessment Phase
4.
The end of the assessment phase
5.
The assessment phase – previous claimants
6.
The assessment phase – claimants appealing against a decision
7.
Circumstances 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
8.
Relaxation of the first contribution condition
9.
Condition relating to youth – claimants aged 20 or over but under 25
10.
Condition relating to youth – previous claimants
11.
Condition relating to youth – residence or presence
12.
Condition relating to youth – full-time education
13.
Modification of the relevant benefit year
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
PART 4
Conditions of Entitlement – Income-Related Allowance
14.
Meaning of education
15.
Claimants to be treated as receiving education
16.
Claimants not to be treated as receiving education
17.
Courses of study
18.
Circumstances in which the condition that the claimant is not receiving
education does not apply
PART 5
Limited Capacity for Work
19.
Determination of limited capability for work
20.
Certain claimants to be treated as having limited capability for work
21.
Information required for determining capability for work
22.
Failure to provide information in relation to limited capability for work
23.
Claimant may be called for a medical examination to determine whether
the claimant has limited capability for work
24.
Matters to be taken into account in determining good cause in relation
to regulations 22 or 23
25.
Hospital in-patients
26.
Claimants receiving certain regular treatment
27.
Claimant to be treated as having limited capability for work throughout
a day
28.
Night workers
29.
Exceptional circumstances
30.
Conditions for treating a claimant as having limited capability for work
until a determination about limited capability for work has been made
31.
Claimant who claims jobseeker’s allowance to be treated as not having
limited capability for work
32.
Certain claimants to be treated as not having limited capability for work
33.
Additional circumstances where claimants are to be treated as having
limited capability for work
PART 6
Limited Capacity for Work-Related Activity
34.
Determination of limited capability for work-related activity
35.
Certain claimants to be treated as having limited capability for work-
related activity
36.
Information required for determining capability for work-related activity
37.
Failure to provide information in relation to work-related activity
38.
Claimant may be called for a medical examination to determine whether
the claimant has limited capability for work-related activity
39.
Matters to be taken into account in determining good cause in relation
to regulations 37 or 38
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
PART 7
Effect of Work on entitlement to an Employment and Support Allowance
40.
A claimant who works to be treated as not entitled to an employment and
support allowance
41.
Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of
Schedule 1 to the Act
42.
Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of
Schedule 1 to the Act
43.
Circumstances under which partners of claimants entitled to an income-
related allowance are not to be treated as engaged in remunerative work
44.
Claimants 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 capa-
bility for work
45.
Exempt work
46.
Effect of work on entitlement to contributory allowance where claimant
is receiving certain regular treatment
PART 8
Conditionality
CHAPTER 1
Work-focused health-related assessment
47.
Requirement to take part in a work-focused health-related assessment
48.
Work-focused health-related assessment
49.
Notification of assessment
50.
Determination of the place of the work-focused health-related assessment
51.
Taking part in a work-focused health-related assessment
52.
Deferral of requirement to take part in a work-focused health-related
assessment
53.
Failure to take part in a work-focused health-related assessment
CHAPTER 2
Work-focused interviews
54.
Requirement to take part in a work-focused interview
55.
Work-focused interview
56.
Notification of interview
57.
Taking part in a work-focused interview
58.
Action plan
59.
Deferral of requirement to take part in a work-focused interview
60.
Requirement to take part in a work-focused interview not to apply
61.
Failure to take part in a work-focused interview
62.
Contracting out certain functions relating to work-focused interviews
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
CHAPTER 3
Reduction of employment and support allowance
63.
Reduction of employment and support allowance
64.
Cessation of reduction
CHAPTER 4
Notification
65.
Notification under this Part
CHAPTER 5
Modification of the Act in relation to claims to which section 5(1)(c) of the
Administration Act applies
66.
Modifications of the Act
PART 9
AMOUNTS OF ALLOWANCE
CHAPTER 1
Prescribed amounts
67.
Prescribed amounts
68.
Polygamous marriages
69.
Special cases
70.
Special cases: supplemental – persons from abroad
71.
Definition of non-dependant
CHAPTER 2
Deductions from the contributory allowance
72.
Permanent health insurance
73.
Councillor’s allowance
74.
Deductions for pension payment and PPF payment
75.
Payments treated as not being payments to which section 3 applies
76.
Deductions for councillor’s allowance
77.
Date from which payments are to be taken into account
78.
Date from which a change in the rate of the payment takes effect
79.
Calculation of payment made other than weekly
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
CHAPTER 3
Statutory payments
80.
Effect of statutory maternity pay on a contributory allowance
81.
Effect of statutory adoption pay on a contributory allowance
82.
Effect of additional statutory paternity pay on a contributory allowance
PART 10
INCOME AND CAPITAL
CHAPTER 1
General
83.
Calculation of income and capital of members of claimant’s family and
of a polygamous marriage
84.
Income of participants in the self-employment route
85.
Liable relative payments
86.
Child support
87.
Calculation of income and capital of students
88.
Calculation of income which consists of earnings of participants in
exempt work
89.
Calculation of income where pension payments, PPF periodic payments
or councillor’s allowance payable
CHAPTER 2
Income
90.
Calculation of income
91.
Calculation of earnings derived from employed earner’s employment and
income other than earnings
92.
Calculation of earnings of self-employed earners
93.
Date on which income is treated as paid
94.
Calculation of weekly amount of income
CHAPTER 3
Employed earners
95.
Earnings of employed earners
96.
Calculation of net earnings of employed earners
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
CHAPTER 4
Self-employed earners
97.
Earnings of self-employed earners
98.
Calculation of net profit of self-employed earners
99.
Deduction of tax and contributions for self-employed earners
CHAPTER 5
Participants in the self-employment route
100.
Interpretation
101.
Treatment of gross receipts of participants in the self-employment route
102.
Calculation of income of participants in the self-employment route
103.
Deduction in respect of tax for participants in the self-employment route
CHAPTER 6
Other income
104.
Calculation of income other than earnings
105.
Capital treated as income
106.
Notional income – deprivation and income on application
107.
Notional income – income due to be paid or income paid to or in respect
of a third party
108.
Notional income – other income
109.
Notional income – calculation and interpretation
CHAPTER 7
Capital
110.
Capital limit
111.
Calculation of capital
112.
Income treated as capital
113.
Calculation of capital in the United Kingdom
114.
Calculation of capital outside the United Kingdom
115.
Notional capital
116.
Diminishing notional capital rule
117.
Capital jointly held
118.
Calculation of tariff income from capital
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
CHAPTER 8
Liable relatives
119.
Interpretation
120.
Treatment of liable relative payments
121.
Disregard of payments treated as not relevant income
122.
Period over which periodical payments are to be taken into account
123.
Period over which payments other than periodical payments are to be
taken into account
124.
Calculation of the weekly amount of a liable relative payment
125.
Date on which a liable relative payment is to be treated as paid
126.
Liable relative payments to be treated as capital
CHAPTER 9
Child support
127.
Treatment of child support maintenance
128.
Calculation of the weekly amount of payments of child support mainte-
nance
129.
Date on which child support maintenance is to be treated as paid
130.
Disregard of payments treated as not relevant income
CHAPTER 10
Students
131.
Interpretation
132.
Calculation of grant income
133.
Calculation of covenant income where a contribution is assessed
134.
Calculation of covenant income where no grant income or no contribu-
tion is assessed
135.
Relationships with amounts to be disregarded under Schedule 8
136.
Other amounts to be disregarded
137.
Treatment of student loans
138.
Treatment of payments from access funds
139.
Treatment of fee loans
140.
Disregard of contribution
141.
Further disregard of student’s income
142.
Income treated as capital
143.
Disregard of changes occurring during summer vacation
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
PART 11
SUPPLEMENTARY PROVISIONS
CHAPTER 1
Miscellaneous
144.
Waiting days
145.
Linking rules
146.
Advance awards
147.
Recovery orders
CHAPTER 2
Work or training beneficiaries
148.
Work or training beneficiaries
149.
Linking rules – limited capability for work
150.
Linking rules – limited capability for work-related activity
CHAPTER 3
Temporary absence from Great Britain
151.
Absence from Great Britain
152.
Short absence
153.
Absence to receive medical treatment
154.
Absence in order to receive NHS treatment
155.
Absence of member of family of member of Her Majesty’s forces
CHAPTER 4
Membership of household
156.
Circumstances in which a person is to be treated as being or not being a
member of the household
PART 12
DISQUALIFICATION
157.
Disqualification for misconduct etc.
158.
Meaning of “person in hardship”
159.
Treating a claimant as not having limited capability for work
160.
Exceptions from disqualification for imprisonment
161.
Suspension of payment of a contributory allowance during imprisonment
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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PART 13
URGENT CASES
162.
Urgent cases
163.
Applicable amounts in urgent cases
164.
Assessment of income and capital in urgent cases
PART 14
PERIODS OF LESS THAN A WEEK
165.
Entitlement for less than a week – amount of an employment and support
allowance payable
166.
Relevant week
167.
Modification in the calculation of income
168.
Reduction in certain cases
169.
Payment of a contributory allowance for days of certain regular treat-
ment
SCHEDULE 1 —  HER MAJESTY’S FORCES
PART I — Prescribed establishments and organisations
PART 2 — Establishments and organisations of which Her Majesty’s forces do
not consist
SCHEDULE 2 — ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK
PART 1 — Physical disabilities
PART 2 — Mental, cognitive and intellectual function assessment
SCHEDULE 3 — ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK-RELATED ACTIVITY
SCHEDULE 4 — AMOUNTS
PART 1 — Prescribed amounts
PART 2 — Premiums
PART 3 — Weekly amount of premiums specified in Part 2
PART 4 — The components
SCHEDULE 5 — SPECIAL CASES
PART 1 — Amounts prescribed for the purposes of section 4(2) of the Act
PART 2 — Amounts prescribed for the purposes of sections 2(1) and 4(2) of the
Act
SCHEDULE 6 — HOUSING COSTS
SCHEDULE 7 — SUMS TO BE DISREGARDED IN THE CALCULATION OF
EARNINGS
SCHEDULE 8 — SUMS TO BE DISREGARDED IN THE CALCULATION OF
INCOME OTHER THAN EARNINGS
SCHEDULE 9 — CAPITAL TO BE DISREGARDED
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 1-2
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)(a), 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(b),
23(1) and (3), 24(1)(c), (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)(d), (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(e), section 5(1) of the Social Security Administration Act 1992(f) and section
21(1)(a) of the Social Security Act 1998(g) 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:
PART 1
GENERAL
Citation and commencement
1.  These Regulations may be cited as the Employment and Support Allowance
Regulations 2008 and shall come into force–
(a)
subject to paragraphs (b) and (c), on 27th October 2008;
(b)
in relation to regulation 128(6)(a) and paragraph 15(2) of Schedule 6, so far
as it applies to a maintenance calculation, in relation to a particular case, on
the day on which paragraph 11(20)(d) of Schedule 3 to the 2000 Act comes
into force for the purposes of that type of case;
(c)
in relation to regulation 82 and paragraph 4 of Schedule 8, so far as it
applies to additional statutory paternity pay, on the day on which regulations
made under or by virtue of sections 171ZEA to 171ZEE of the Contributions
and Benefits Act(h) come into force.
Interpretation
2.—(1) In these Regulations–
“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 2007(i);
“action plan” has the meaning given by regulation 58;
“adoption leave” means a period of absence from work on ordinary or additional
adoption leave under section 75A or 75B of the Employment Rights Act 1996(j);
( a ) Section 3(3) is cited for the power to prescribe a payment under paragraph (b) of the
definition of “pension payment”.
( b ) Section 22 is cited insofar as it relates to paragraphs 1 to 3, 6, 7, 8(1), 9 and 10 of Schedule
2.
( c ) Section 24(1) is cited for the definition of “employment” and “employed”, “period of
limited capability for work”, “prescribed”, “regulations” and “week”.
( d ) Paragraph 6(5) of Schedule 1 is cited for the definition of “couple”, “education” and
“remunerative work”.
( e ) 2007 c. 5.
( f ) 1992 c. 5.
( g ) 1998 c. 14.
( h ) 1992 c. 4. Sections 171ZEA to 171ZEE were inserted by sections 6 to 10 of the Work and
Families Act 2006 (c. 18).
(i) 2007 c. 5.
( j ) 1996 c. 18. Sections 75A and 75B were inserted by section 3 of the Employment Act 2002
(c. 22).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 2
“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–
(a) 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; and
(b) the 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;
“Armed Forces and Reserve Forces Compensation Scheme” means the scheme
established under section 1(2) of the Armed Forces (Pensions and Compensation)
Act 2004(a);
“attendance allowance” means–
(a) an attendance allowance under section 64 of the Contributions and
Benefits Act;
(b) an increase of disablement pension under section 104 or 105 of that Act;
(c) a payment under regulations made under section 111 of, and paragraph
7(2)(b) of Schedule 8 to, that Act;
(d) an increase in allowance which is payable in respect of constant attendance
under section 111 of, and paragraph 4 of Schedule 8 to, that Act;
(e) a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries
(Civilians) Scheme 1983(b) or any analogous payment;
(f) any payment based on the need for attendance which is paid as an addition
to a war disablement pension;
̈1“basic rate” has the same meaning as in the Income Tax Act 2007(c) (see section
1Defn. of “basic rate”
989 of that Act);̇
inserted by reg. 3(a) of
S.I. 2008/2428 as from
“benefit Acts” means the Contributions and Benefits Act, Jobseekers Act and Part
2 7 . 1 0 . 0 8 .
1 of the Act;
“benefit week” means a period of 7 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 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–
(a) 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; or
(b) accommodation 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;
“care home” in England and Wales has the meaning assigned to it by section 3 of
the Care Standards Act 2000(d), and in Scotland means a care home service within
the meaning assigned to it by section 2(3) of the Regulation of Care (Scotland)
Act 2001(e);
(a) 2004 c. 32.
(b) S.I. 1983/686. Article 14 was substituted by S.I. 2001/420, article 15 was amended by S.I.
2001/420 and article 16 was amended by S.I. 1984/1675 and S.I. 2001/420.
( c ) 2007 c. 3.
( d ) 2000 c. 14.
( e ) 2001 asp. 8.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 2
“carer’s allowance” means an allowance under section 70 of the Contributions
and Benefits Act;
“child” means a person under the age of 16;
“child tax credit” means a child tax credit under section 8 of the Tax Credits Act;
“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;
“college of further education” means a college of further education within the
meaning of Part 1 of the Further and Higher Education (Scotland) Act 1992(a);
“concessionary payment” means a payment made under arrangements made by
1Words omitted in defn.
the Secretary of State with the consent of the Treasury which is charged ̈1̇ to a
of “concessionary
Departmental Expenditure Vote to which payments of benefit or tax credits under
payment” by reg.
the benefit Acts or the Tax Credits Act are charged;
11(2)(a) of S.I. 2008/
3157 as from 5.1.09.
“confinement” has the meaning given to it by section 171(1) of the Contributions
and Benefits Act(b);
“co-ownership scheme” means a scheme under which a dwelling is let by a housing
association and the tenant, or the tenant’s personal representative, will, under the
terms of the tenancy agreement or of the agreement under which the tenant became
a member of the association, be entitled, on that tenant ceasing to be a member
and subject to any condition stated in either agreement, to a sum calculated by
reference directly or indirectly to the value of the dwelling and “co-ownership
agreement” will be construed accordingly;
“councillor” means–
(a) in relation to England and Wales, a member of a London borough council,
a county 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; and
(b) in relation to Scotland, a member of a council constituted under section
2 of the Local Government etc. (Scotland) Act 1994(c);
“councillor’s allowance” means–
(a) in England or Wales, an allowance under or by virtue of–
(i) section 173 or 177 of the Local Government Act 1972(d); or
(ii) a scheme made by virtue of section 18 of the Local Government and
Housing Act  1989(e),
other than such an allowance as is mentioned in section 173(4) of the
Local Government Act 1972; or
( a ) 1992 c. 37.
( b ) 1992 c. 4. Section 171(1) was amended by the Still-Birth (Definition) Act 1992 (c. 29),
sections 2(1) and 4(2).
( c ) 1994 c. 39.
( d ) 1972 c. 70. Section 173 was amended by the Local Government, Planning and Land Act
1980 (c. 65), section 24(1) and by the Local Government and Housing Act 1989(c. 42),
section 194 and Schedule 11, paragraph 26 and S.I. 1977/1710, article 3(c). Section
177(1A) was inserted by the School Standards and Framework Act 1998 (c. 31), section
140(1) and Schedule 30, paragraph 3(3) and amended by the Education and Inspections Act
2006 (c. 40), sections 30 and 184 and Schedule 3, paragraph 1 and Schedule 18, Part 3.
Section 177(2) was substituted by, and section 177(4) was amended by the Local
Government and Housing Act 1989 (c. 42), section 194 and Schedule 11, paragraph 28(3)
and (4), respectively.
( e ) 1989 c. 42. Section 18(1) was amended by the Local Government Act 2000 (c. 22) (“the
2000 Act”), section 99(3) and (4). Section 18(1A) was inserted by the 2000 Act, section
99(3) and (4). Section 18(2A) was inserted by the 2000 Act, section 99(3) and (5). Section
18(3) was amended by the 2000 Act, section 99(3) and (6). Section 18(3A) to (3G) were
inserted by the 2000 Act, section 99(3) and (7). Section 18(4) was amended by the 2000
Act, section 99(3) and (8). Section 18(5) was amended by the Police and Magistrates’ Courts
Act 1994 (c. 29), section 43 and Schedule 4, Part 1, paragraph 37 and the Education Act
1996 (c. 56), section 582(1) and Schedule 37, paragraph 97 and the 2000 Act, section 99(3)
and (9).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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Reg. 2
(b) in Scotland, an allowance or remuneration under or by virtue of–
(i) a scheme made by virtue of section 18 of the Local Government and
Housing Act 1989; or
(ii) sections 11 and 16 of the Local Governance (Scotland) Act 2004(a);
“couple” means–
(c) a man and woman who are married to each other and are members of the
same household;
(a) a man and woman who are not married to each other but are living together
as husband and wife;
(b) two people of the same sex who are civil partners of each other and are
members of the same household; or
(c) two people of the same sex who are not civil partners of each other but are
living together as if they were civil partners,
and for the purposes of paragraph (d), two people of the same sex are to be regarded
as living together as if they were civil partners if, but only if, they would be
regarded as living together as husband and wife were they instead two people of
the opposite sex;
“Crown tenant” means a person who occupies a dwelling under a tenancy or
licence where the interest of the landlord belongs to Her Majesty in right of the
Crown or to a government department or is held in trust for Her Majesty for the
purposes of a government department, except (in the case of an interest belonging
to Her Majesty in right of the Crown) where the interest is under the management
of the Crown Estate Commissioners;
“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;
“disability living allowance” means a disability living allowance under section
71 of the Contributions and Benefits Act;
“doctor” means a registered medical practitioner, or in the case of a medical
practitioner practising outside the United Kingdom of whom the Secretary of
State 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 and outbuildings, normally occupied by the claimant as the claimant’s
home including any premises not so occupied which it is impracticable or
unreasonable to sell separately, in particular, in Scotland, any croft land on which
the dwelling is situated;
“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” 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;
“employment zone” means an area within Great Britain designated for the purposes
of section 60 of the Welfare Reform and Pensions Act 1999(b) and an “employment
zone programme” means a programme established for such an area or areas designed
( a ) 2004 asp. 9.
( b ) 1999 c. 30.
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to assist claimants for a jobseeker’s allowance to obtain sustainable employment;
“enactment” includes an enactment comprised in, or in an instrument made under–
(a) an Act;  or
(b) an Act of the Scottish Parliament;
“failure determination” has the meaning given by regulation 63(1);
“family” means–
(a) a couple;
(b) 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;
(c) 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;
“full-time student” has the meaning prescribed in regulation 131 (students:
interpretation);
“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;
“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(a);
“health care professional” means–
(a) a registered medical practitioner;
(b) a registered nurse; or
(c) an occupational therapist or physiotherapist registered with a regulatory
body established by an Order in Council under section 60 of the Health
Act 1999(b);
“Health Service Act” means the National Health Service Act 2006(c);
“Health Service (Wales) Act” means the National Health Service (Wales) Act
2006(d);
“housing association” has the meaning given to it by section 1(1) of the Housing
Associations Act 1985(e);
“housing benefit expenditure” means expenditure in respect of which housing
benefit is payable as specified in regulation 12(1) of the Housing Benefit
Regulations 2006(f) 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);
“Immigration and Asylum Act” means the Immigration and Asylum Act 1999(g);
“income-related benefits” means the benefits listed in section 123(1) of the
Contributions and Benefits Act;
“Income Support Regulations” means the Income Support (General) Regulations
1987(h);
(a) S.I. 2005/439.
( b ) 1999 c. 8. Section 60(1) was amended by the National Health Service Reform and Health
Care Professions Act 2002 (c. 17), section 26(9). Section 60(2) was amended by S.I. 2002/
253, article 54(3) and Schedule 5, paragraph 16(a) and S.I. 2002/254, article 48(3) and
Schedule 4, paragraph 8(a).
( c ) 2006 c. 41.
( d ) 2006 c. 42.
( e ) 1985 c. 69.
( f ) S.I. 2006/213.
( g ) 1999 c. 33.
( h ) S.I. 1987/1967.
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“independent hospital” in England and Wales has the meaning assigned to it by
section 2 of the Care Standards Act 2000, and in Scotland means an independent
healthcare service as defined in section 2(5)(a) and (b) of the Regulation of Care
(Scotland) Act 2001(a);
̈1̇
1Defns. of “Independent
̈1̇
Living (Extension)
F u n d ” ,   “ I n d e p e n d e n t
̈1̇
Living Fund”,
“ I n d e p e n d e n t   L i v i n g
“the Independent Living Fund (2006)” means the Trust of that name established
(1993) Fund” &
by a deed dated 10th April 2006 and made between the Secretary of State for Work
“ I n d e p e n d e n t   L i v i n g
and Pensions of the one part and Margaret Rosemary Cooper, Michael Beresford
Funds” omitted by reg.
Boyall and Marie Theresa Martin of the other part;
3(b) of S.I. 2008/2428
as from 27.10.08.
̈1̇
“Jobseekers Act” means the Jobseekers Act 1995;
“Jobseeker’s Allowance Regulations” means the Jobseeker’s Allowance
Regulations 1996(b);
“last day of the course” means the last day of the final academic term of the course
in which the student is enrolled;
“limited capability for work assessment” means the assessment of whether a person
has limited capability for work as set out in regulation 19(2) and in Schedule 2;
“London Bombings Relief Charitable Fund” means the company limited by
guarantee (number 5505072) and registered charity of that name established on
11th July 2005 for the purpose of (amongst other things) relieving sickness,
disability or financial need of victims (including families or dependants of victims)
of the terrorist attacks carried out in London on 7th July 2005;
“lone parent” means a person who has no partner and who is responsible for, and
a member of the same household as, a child or young person;
“long tenancy” means a tenancy granted for a term of years certain exceeding
twenty one years, whether or not the tenancy is, or may become, terminable before
the end of that term by notice given by or to the tenant or by re-entry, forfeiture
(or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law
under a grant with a covenant or obligation for perpetual renewal unless it is a
lease by sub-demise from one which is not a long tenancy;
“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;
“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;
“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;
“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–
(a) the employment in that other capacity is for the purposes of that ship or
vessel or her crew or any passengers or cargo or mails carried by the ship
or vessel; and
(b) the 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;
( a ) 2001 asp. 8. Section 2(5) was amended by section 29 of the Smoking, Health and Social
Care (Scotland) Act 2005 (asp. 13).
( b ) S.I. 1996/1207.
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Reg. 2
but does not include a person who is in employment as a member of Her Majesty’s
forces;
“maternity allowance period” has the meaning it has in section 35(2) of the
Contributions and Benefits Act;
“medical evidence” means–
(a) evidence from a health care professional approved by the Secretary of
State; and
(b) evidence (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;
“Medical Evidence Regulations” means the Social Security (Medical Evidence)
Regulations 1976(a);
“medical examination centre” means premises which are equipped and suitable
for conducting a medical examination;
“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–
(a) over 16 years of age; and
(b) a member of an establishment or organisation specified in Part 1 of that
Schedule who gives full pay service,
but does not include any such person while absent on desertion;
“mobility supplement” means any supplement under article 20 of the Naval,
Military and Air Forces Etc. (Disablement and Death) Service Pensions Order
2006(b) including such a supplement by virtue of any other scheme or order or
under article 25A of the Personal Injuries (Civilians) Scheme 1983(c);
“net earnings” means such earnings as are calculated in accordance with regulation
96;
“net profit” means such profit as is calculated in accordance with regulation 98;
“New Deal options” means the employment programmes specified in regulation
75(1)(a)(ii) of the Jobseeker’s Allowance Regulations and the training scheme
specified in regulation 75(1)(b)(ii) of those Regulations;
“non-dependant” has the meaning prescribed in regulation 71;
“non-dependant deduction” means a deduction that is to be made under regulation
67(1)(c) (prescribed amounts) and paragraph 19 of Schedule 6 (housing costs);
“occupational pension” means any pension or other periodical payment under an
occupational pension scheme but does not include any discretionary payment
out of a fund established for relieving hardship in particular cases;
“occupational pension scheme” has the meaning given by section 1 of the Pension
Schemes Act  1993(d);
“ordinary clothing or footwear” means clothing or footwear for normal daily use,
but does not include school uniforms, or clothing or footwear used solely for
sporting activities;
“partner” means where a claimant–
(a) is a member of a couple, the other member of that couple;
(b) 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;
( a ) S.I. 1976/615.
( b ) S.I. 2006/606.
( c ) S.I. 1983/686.
( d ) 1993 c. 48. Section 1(1) was amended by the Pensions Act 2004 (c. 35), section 239(1) and
(3), S.I. 1999/1820, article 4 and Schedule 2, Part 1, paragraph 113(a) and (b) and S.I.
2007/3014, regulation 2(b) and paragraph 1(a) of the Schedule.
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“passenger” means any person carried on a ship except–
(a) a person employed or engaged in any capacity on board the ship on the
business of the ship; or
(b) a person on board the ship either in pursuance of the obligation to carry
shipwrecked, distressed or other persons, or by reason of any circumstance
that neither the master nor the owner nor the charterer (if any) could have
prevented or forestalled;
“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;
“pension fund holder” means in relation to a personal pension scheme or an
occupational pension scheme, the trustees, managers or scheme administrators, as
the case may be, of the scheme concerned;
“pensionable age” has the meaning given by the rules in paragraph 1 of Schedule
4 to the Pensions Act 1995(a);
“period of limited capability for work” means a period throughout which a person
has, or is treated as having, limited capability for work;
“period of study” means the period beginning with the date on which a person
starts attending or undertaking a course of study and ending with the last day of
the course or such earlier date (if any) as that person finally abandons it or is
dismissed from it;
“personal pension scheme” means–
(a) a personal pension scheme as defined by section 1 of the Pension Schemes
Act 1993(b);
(b) an annuity contract or trust scheme approved under section 620 or 621 of
the Income and Corporation Taxes Act 1988(c) or a substituted contract
within the meaning of section 622(3) of that Act 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(d);
(c) a personal pension scheme approved under Chapter 4 of Part 14 of the
Income and Corporation Taxes Act 1988 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;
“policy of life insurance” means any instrument by which the payment of money
is assured on death (except death by accident only) or the happening of any
contingency dependent on human life, or any instrument evidencing a contract
which is subject to payment of premiums for a term dependent on human life;
“polygamous marriage” means any marriage entered into under a law which permits
polygamy where–
(a) either party has for the time being any spouse additional to the other
party; and
(b) the claimant, the other party to the marriage and the additional spouse
are members of the same household;
“qualifying person” means a person in respect of whom payment has been made
from the Fund, the Eileen Trust, the Skipton Fund or the London Bombings Relief
Charitable Fund;
( a ) 2005 c. 26.
( b ) 1993 c. 48. Section 1(1) has been amended by the Pensions Act 2004 (c. 35), section
239(1), (2) and (3), S.I. 1999/1820, article 4 and Schedule 2, Part 1, paragraph 113(a) and
(b) and S.I. 2007/3014, regulation 2(b) and paragraph 1(a) of the Schedule. Section 1(2) to
(6) was inserted by the Pensions Act 2004 (c. 35), section 239(1) and (4).
( c ) 1988 c. 1. Sections 620, 621 and 622 were repealed by the Finance Act 2004 (c. 12), section
326 and Schedule 42, Part 3.
( d ) 2004 c. 12.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 2
“qualifying remunerative work” has the meaning given by Part 1 of the Tax Credits
Act;
“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;
“relevant disease” means–
(a) in England and Wales, any disease, food poisoning, infection, infectious
disease or notifiable disease–
(i) to which section 20(1) of the Public Health (Control of Disease) Act
1984(a) (stopping of work to prevent spread of disease) applies;
(ii) to  which–
(aa) regulation 3 (public health enactments applied to certain diseases)
of, and Schedule 1 to,
(bb) regulation 9(1) (provisions for preventing the spread of typhus
and relapsing fever) of, and Schedule 3 to, or
(cc) regulation 9(2) (provisions for preventing the spread of food
poisoning and food borne infections) of, and Schedule 4 to,
the Public Health (Infectious Diseases) Regulations 1988(b) apply;
(iii) to which regulation 9 (powers in respect of persons leaving aircraft) of
the Public Health (Aircraft) Regulations 1979(c) applies; or
(iv) to which regulation 10 (powers in respect of certain persons on ships)
of the Public Health (Ships) Regulations 1979(d) applies; and
(b) in Scotland, any food poisoning or infectious disease–
(i) to which section 71(1) of the Health Services and Public Health Act
1968(e) (compensation for stopping employment to prevent spread of
disease in Scotland) applies; or
(ii) to  which–
(aa) regulations 8 and 9 (examination, etc. of persons on aircraft and
powers in respect of persons leaving aircraft) of the Public Health
(Aircraft) (Scotland) Regulations 1971(f); or
(bb)
regulations 9 and 10 (examination, etc. of persons on ships and
powers in respect of certain persons on ships) of the Public Health
(Ships) (Scotland) Regulations 1971(g),
apply;
“relevant enactment” means the Army Act 1955(h), the Air Force Act 1955(i), the
Naval
( a ) 1984 c. 22. Section 20 was amended by section 59 of, and Schedule 3 to, the Food Safety
Act 1990 (c. 16).
( b ) S.I. 1988/1546.
( c ) S.I. 1979/1434.
( d ) S.I. 1979/1435.
( e ) 1968 c. 46. Section 71 was amended by section 64 of, and Schedule 6 to, the National
Health Service (Scotland) Act 1972 (c. 58) and section 180 of, and Schedule 14 to, the Local
Government etc. (Scotland) Act 1994 (c. 39).
( f ) S.I. 1971/131.
( g ) S.I. 1971/132.
( h ) 1955 c. 18.
(i) 1955 c. 19.
13.5130  (–13.5136)
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Discipline Act 1957(a), the Matrimonial Proceedings Children Act 1958(b), the
Social Work (Scotland) Act 1968(c), the Family Law Reform Act 1969(d), the
Children and Young Persons Act 1969(e), the Matrimonial Causes Act 1973(f), the
Domestic Proceedings and Magistrates’ Courts Act 1978(g), the Adoption (Scotland)
Act 1978(h), the Family Law Act 1986(i), the Children Act 1989(j) and the Adoption
and Children Act 2002(k);
“remunerative work” has the meaning prescribed in regulations 41 and 42 except
in relation to Schedules 6 and 7;
“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;
“self-employment route” means assistance in pursuing self-employed earner’s
employment whilst participating in–
(a) an employment zone programme; or
(b) a programme provided or other arrangements made under section 2 of the
Employment and Training Act 1973(l) (functions of the Secretary of State)
or section 2 of the Enterprise and New Towns (Scotland) Act 1990(m)
(functions in relation to training for employment etc.);
“single claimant” means a claimant who neither has a partner nor is a lone parent;
“Skipton Fund” means the ex-gratia payment scheme administered by the Skipton
Fund Limited, incorporated on 25th March 2004, for the benefit of certain persons
suffering from hepatitis C and other persons eligible for payment in accordance
with the scheme’s provisions;
“sports award” means an award made by one of the Sports Councils named in
section 23(2) of the National Lottery etc. Act 1993(n) out of sums allocated to it
for distribution under that section;
̈1“state pension credit” means a state pension credit under the State Pension
1Defn. of “state pension
Credit Act 2002(o);̇
credit” inserted & defn.
of “starting rate”
̈1̇
omitted by regs. 3(b) &
“subsistence allowance” means an allowance which an employment zone
(c) of S.I. 2008/2428 as
contractor has agreed to pay to a person who is participating in an employment
f r o m   2 7 . 1 0 . 0 8 .
zone programme;
“the Tax Credits Act” means the Tax Credits Act 2002(p);
“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 6 months;
( a ) 1957 c. 53.
( b ) 1958 c. 40.
( c ) 1968 c. 49.
( d ) 1969 c. 46.
( e ) 1969 c. 54.
( f ) 1973 c. 18.
( g ) 1978 c. 22.
( h ) 1978 c. 28.
(i) 1986 c. 55.
( j ) 1989 c. 41.
( k ) 2002 c. 38.
(l) 1973 c. 50. Section 2 was substituted by the Employment Act 1988 (c. 19), section 25(1).
Sections 2(3A) and (3B) were inserted by the Trade Union Reform and Employment Rights
Act 1993 (c. 19) section 47(1) and apply to Scotland only.
( m ) 1990 c. 35. Section 2(3) was amended by the Trade Union Reform and Employment Rights
Act 1993, sections 47(2) and (4)(a) and 51 and Schedule 10. Section 2(4) was amended by
the Trade Union Reform and Employment Rights Act 1993, section 47(2) and (4)(b).
Section 2(6) was repealed by S.I. 1999/1820.
( n ) 1993 c. 39. Section 23(2) was amended by S.I. 1996/3095, article 2 and S.I. 1999/1563,
article 2(1) and (6). There are other amending instruments but none is relevant.
( o ) 2007 c. 3.
( p ) 2002 c. 21.
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“training” means–
(a) 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; or
(b) any 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–
(a) out of public funds by a Government department or by or on behalf of the
Secretary of State for Work and Pensions, Scottish Enterprise or Highlands
and Islands Enterprise, the Learning and Skills Council for England or
the Welsh Ministers;
(b) to a person for that person’s maintenance or in respect of a member of that
person’s family; and
(c) for 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 so provided or approved by or on behalf of
the Secretary of State for Work and Pensions, Scottish Enterprise or
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;
1Words substituted in
“war disablement pension” means any ̈1retired pay or pension or allowance
defns. of “war
payablė in respect of disablement under an instrument specified in section 639(2)
disablement pension”
of the Income Tax (Earnings and Pensions) Act 2003(a);
“war widow’s pension”
& ”war widower’s
“war widow’s pension”̈1means any pension or allowancė payable to a woman
pension” by reg.
as a widow under an instrument specified in section 639(2) of the Income Tax
11(2)(b) & (c) of S.I.
(Earnings and Pensions) Act 2003 in respect of the death or disablement of any
2008/3157 as  from
5 . 1 . 0 9 .
person;
“war widower’s pension” ̈1means any pension or allowancė payable to a man as
a widower or to a surviving civil partner under an instrument specified in section
639(2) of the Income Tax (Earnings and Pensions) Act 2003 in respect of the death
or disablement of any person;
“water charges” means–
(a) as respects England and Wales, any water and sewerage charges under
Chapter 1 of Part 5 of the Water Industry Act 1991(b);
(b) as respects Scotland, any water and sewerage charges under Part 2 of the
Local Government etc. (Scotland) Act 1994(c),
in so far as such charges are in respect of the dwelling which a person occupies as
the home;
“week” means a period of 7 days except in relation to regulation 26;
“work or training beneficiary” has the meaning prescribed in regulation 148;
“working day” means any day except for a Saturday, Sunday, Christmas Day,
Good Friday or bank holiday under the Banking and Financial Dealings Act 1971(d)
in England, Wales or Scotland;
“working tax credit” means a working tax credit under section 10 of the Tax
Credits Act;
( a ) 2003 c. 1.
( b ) 1991 c. 56.
( c ) 1994 c. 39.
( d ) 1971 c. 80.
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Regs. 2-4
“young person” is a person who, except where section 6 of the Children (Leaving
Care) Act  2000(a) (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).
(2) In ̈1̇ paragraph 15(2) of Schedule 6 (housing costs – linking rule)–
1Words omitted in reg.
“child support maintenance” means such periodical payments as are referred to in
2(2) by reg. 20(1) of
S.I. 2008/2428 as from
section 3(6) of the Child Support Act 1991(b) and includes any payments made by
2 7 . 1 0 . 0 8 .
the Secretary of State in lieu of such payments;
“the 1991 Act” means the Child Support Act 1991;
“the 2000 Act” means the Child Support, Pensions and Social Security Act 2000(c);
“maintenance assessment” has the same meaning as in the 1991 Act by virtue of
section 54 of that Act as it has effect apart from the 2000 Act;
“maintenance calculation” has the same meaning as in the 1991 Act by virtue of
section 54 of that Act as amended by the 2000 Act.
(3) 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.
(4) For the purposes of paragraph 5 of Schedule 1 to the Act, “week” means a period of
7 days.
Rounding of fractions
3.  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, 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
4.—(1) Subject to paragraph (2) and regulations 5 and 6, the assessment phase in
relation to a claimant ends on the last day of a period of 13 weeks beginning on the
first day of the assessment phase as determined under section 24(2)(a) of the Act.
(2) If at the end of the period of 13 weeks referred to in paragraph (1), it has not yet
been determined whether the claimant has limited capability for work–
(a)
the claimant having been assessed in accordance with a limited capability
for work assessment; or
(b)
as a result of the claimant being treated as having limited capability for
work in accordance with regulation 20, 25, 26, 29 or regulation 33(2)
(persons to be treated as having limited capability for work),
the assessment phase will end when the limited capability for work determination is
made.
( a ) 2000 c. 35.
( c ) 1991 c. 48. Section 3(6) was amended by the Child Support, Pensions and Social Security
Act (c. 19), section 1(2)(a).
( d ) 2000 c. 19.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 5-7
The assessment phase – previous claimants
5.—(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 paragraph (3) and regulation 6, 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.
(2) The circumstances are that–
(a) (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 145(1) or (2);
(ii) the  claimant was entitled to an employment and support allowance in
the earlier period of limited capability for work; and
(iii) the assessment phase had not ended in the previous period for which the
claimant was entitled to an employment and support allowance; or
(b) (i) paragraph (3) or (5) of regulation 145 applies to the claimant; and
(ii) the assessment phase had not ended in the previous period for which the
claimant was entitled to an employment and support allowance.
(3) If, on the day referred to in paragraph (1)(b), it has not yet been determined
whether the claimant has limited capability for work–
(a)
the claimant having been assessed in accordance with a limited capability
for work assessment; or
(b)
as a result of the claimant being treated as having limited capability for
work in accordance with regulation 20, 25, 26, 29 or regulation 33(2)
(persons to be treated as having limited capability for work),
the assessment phase will end when the limited capability for work determination is
made.
The assessment phase – claimants appealing against a decision
6.
Where the period for which the claimant is entitled to an employment and
support allowance commences and the claimant has made and is pursuing an appeal
against a decision which embodies a determination that that claimant does not have
limited capability for work, the assessment phase in relation to that claimant ends
when the appeal is determined by an appeal tribunal constituted under Chapter 1 of
Part 1 of the Social Security Act 1998(a).
Circumstances 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
7.—(1) Subject to paragraph (2), sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a) of the
Act do not apply where–
(a)
a claimant is terminally ill and has either–
(i) made a claim expressly on the ground of being terminally ill; or
(ii) made an application for supersession or revision in accordance with the
Social Security and Child Support (Decisions and Appeals) Regulations
1999(b) which contains an express statement that the claimant is
1
terminally ill; 
Words omitted from
̈1̇
reg. 7(1)(a)(ii), by reg.
(b) (i) a period of limited capability for work is to be treated as a continuation
12(2)(a) of S.I. 2008/
of an earlier period of limited capability for work under regulation 145(1)
3051 as from 24.11.08.
or (2);
( a ) 1998 c. 14.
( b ) S.I. 1999/991.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 7-8
(ii) the  claimant was entitled to an employment and support allowance in
the earlier period of limited capability for work; and
(iii) the assessment phase had ended in the previous period for which the
claimant was entitled to an employment and support allowance ̈1or
(c) (i) the claimant’s entitlement to an employment and support allowance
1Words added to sub-
commences within 12 weeks of the claimant’s entitlement to income
para. (b)(iii) & sub-
support coming to an end;
para. (c) inserted by
reg. 12(2)(b) of S.I.
(ii) in relation to that entitlement to income support, immediately before it
2008/3051 as from
ended the claimant’s applicable amount included the disability premium
2 4 . 1 1 . 0 8 .
by virtue of satisfying the conditions in paragraphs 11 and 12 of Schedule
2 to the Income Support regulations; and
(iii) that entitlement to income support ended solely by virtue of the coming
into force, in relation to the claimant, of the Social Security (Lone Parents
and Miscellaneous Amendments) Regulations 2008.̇
(2) Paragraph (1)(b) does not apply where the claimant is appealing a decision
which embodies a determination that the claimant does not have limited capability
for work.
PART 3
CONDITIONS OF ENTITLEMENT – CONTRIBUTORY
ALLOWANCE
Relaxation of the first contribution condition
8.—(1) A  claimant who satisfies any of the conditions in paragraph (2) is to be
taken to satisfy the first contribution condition if–
(a)
the claimant paid Class 1 or Class 2 contributions before the relevant benefit
week in respect of any one tax year; and
(b)
the earnings factor is derived–
(i) from earnings, on which primary Class 1 contributions have been paid or
treated as paid, which are not less than that year’s lower earnings limit
multiplied by 25; or
(ii) from Class 2 contributions multiplied by 25.
(2) The conditions referred to in paragraph (1) are that the claimant–
(a)
was entitled to a carer’s allowance in the last complete tax year immediately
preceding the relevant benefit year;
(b)
had been engaged in qualifying remunerative work for a period of more than
2 years immediately before the first day of the period of limited capability
for work and who was entitled to working tax credit where the disability
element or the severe disability element of working tax credit specified in
regulation 20(1)(b) or (f) of the Working Tax Credit (Entitlement and
Maximum Rate) Regulations 2002(a) was included in the award;
(c)
in respect of any week in any tax year preceding the relevant benefit year–
(i) is entitled to be credited with earnings or contributions in accordance
with regulation 9D of the Social Security (Credits) Regulations 1975(b)
(credits for certain periods of imprisonment or detention in legal custody);
or
(ii) would have been so entitled had an application to the Secretary of State
been made for the purpose of that regulation; or
(d)
on the first day of the period of limited capability for work, had received a
contributory allowance in the last complete tax year immediately preceding
( a ) S.I. 2002/2005.
( b ) S.I. 1975/556. Regulation 9D was inserted by S.I.2001/573, regulation 2.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 8-10
the relevant benefit year in which entitlement to a contributory allowance is
now being decided.
Condition relating to youth – claimants aged 20 or over but under 25
9.—(1) For the purposes of paragraph 4(1)(a) of Schedule 1 to the Act, a claimant
who satisfies the conditions specified in paragraph (2) falls within a prescribed case.
(2) The conditions are that the claimant–
(a)
registered on a course of–
(i) full-time advanced or secondary education; or
(ii) training,
at least 3 months before attaining the age of 20; and
(b)
not more than one academic term immediately after registration attended
one  or more such courses in respect of a period referred to in paragraph (3).
(3) The period mentioned in sub-paragraph (2)(b) is a period which–
(a)
began on or before a day at least 3 months before the day the claimant
attained the age of 20; and
(b)
ended no earlier than the beginning of the last two complete tax years before
the relevant benefit year which would have applied if the claimant was
entitled to an employment and support allowance having satisfied the first
contribution condition and the second contribution condition.
(4) For the purposes of this regulation a claimant is to be treated as attending a
course on any day on which the course is interrupted by an illness or domestic
emergency.
(5) In this regulation–
“advanced education” means education for the purposes of–
(a) a course in preparation for a degree, a diploma of higher education, a
higher national diploma, a higher national diploma of the Business and
Technician Education Council or the Scottish Qualifications Authority,
or a teaching qualification; or
(b) any other course which is of a standard above ordinary national diploma,
a diploma of the Business and Technical Education Council or a higher
or advanced higher national certificate of the Scottish Qualifications
Authority or a general certificate of education (advanced level);
“full-time” includes part-time where the person’s disability prevents attendance
at a full-time course;
“secondary education” means a course of education below a course of advanced
education–
(a) by attendance at an establishment recognised by the Secretary of State as
being, or as comparable to, a university, college or school; or
(b) elsewhere where the Secretary of State is satisfied that the education is
equivalent to that given in an establishment recognised as being, or as
comparable to, a university, college or school.
1Reg. 9(6) inserted by
̈1(6) A claimant is to be treated as not having limited capability for work on a day
reg. 4 of S.I. 2008/2428
which is not, for the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act (period
as from 27.10.08.
of 196 consecutive days preceding the relevant period of limited capability for work),
part of any consecutive days of limited capability for work.̇
Condition relating to youth – previous claimants
10.—(1) Paragraph 4(1)(a) of Schedule 1 to the Act does not apply to a claimant–
(a)
who has previously ceased to be entitled to an employment and support
allowance, entitlement for which was as a result of satisfying the condition
set out in sub-paragraph (1) of that paragraph;
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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Regs. 10-11
(b)
whose previous entitlement had not been ended by a decision which
embodied a determination (other than a determination in the circumstances
applicable to a claimant under paragraph (2)(a)) that the claimant did not
have limited capability for work;
(c)
in relation to whom regulation 145 (linking rules) does not apply;
(d)
aged 20 or over, or, where regulation 9 would otherwise apply to the person,
aged 25 or over; and
(e)
to whom paragraph (2) applies.
(2) This paragraph applies to a claimant–
(a)
whose previous entitlement to an employment and support allowance ended
solely with a view to that person taking up employment or training;
(b)
whose earnings factor from an employment or series of employments pursued
in the period from the end of the previous entitlement to the beginning of
the period of limited capability for work, was below the lower earnings limit
multiplied by 25 in any of the last three complete tax years before the
beginning of the relevant benefit year; and
(c)
who–
(i) in respect of the last two complete tax years before the beginning of the
relevant benefit year has either paid or been credited with earnings
equivalent in each of those years to the year’s lower earnings limit
multiplied by 50, of which at least one, in the last tax year, was in respect
of the disability element or severe disability element of working tax
credit; or
(ii) makes a claim for an employment and support allowance within a period
of 12 weeks after the day on which the last such employment pursued in
accordance with sub-paragraph (b) ceased.
Condition relating to youth – residence or presence
11.—(1) The prescribed conditions for the purposes of paragraph 4(1)(c) of
Schedule 1 to the Act as to residence or presence in Great Britain are that the claimant–
(a)
is ordinarily resident in Great Britain;
(b)
is not a person subject to immigration control within the meaning of section
115(9) of the Immigration and Asylum Act or is a person to whom paragraph
(3) applies;
(c)
is present in Great Britain; and
(d)
has been present in Great Britain for a period of, or for periods amounting in
aggregate to, not less than 26 weeks in the 52 weeks immediately preceding
the relevant benefit week.
(2) For the purposes of paragraph (1), a claimant is to be treated as being resident
and present in Great Britain where the claimant is absent from Great Britain by reason
only of being–
(a)
the spouse, civil partner, son, daughter, father, father-in-law, mother or mother-
in-law of, and living with, a member of Her Majesty’s forces who is abroad in
that capacity;
(b)
in employment prescribed for the purposes of paragraph 7(1)(c) of Schedule
2 to the Act in connection with continental shelf operations; or
(c)
abroad in the capacity of being an aircraft worker or mariner.
(3) This paragraph applies where a person is–
(a)
a member of a family of a national of an European Economic Area state;
(b)
a person who is lawfully working in Great Britain and is a national of a State
with which the Community has concluded an agreement under Article 310
of the Treaty of Amsterdam amending the Treaty on European Union, the
Treaties establishing the European Communities and certain related Acts
providing, in the field of social security, for the equal treatment of workers
who are nationals of the signatory State and their families;
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 11-13
(c)
a person who is a member of a family of, and living with, a person specified
in sub-paragraph (b); or
(d)
a person who has been given leave to enter, or remain in, the United Kingdom
by the Secretary of State upon an undertaking by another person or persons
pursuant to the immigration rules within the meaning of the Immigration
Act 1971(a) to be responsible for tha t person’s maintenance and
accommodation.
(4) A person is to be treated as having satisfied the residence or presence conditions
in paragraph (1) throughout a period of limited capability for work where those
conditions are satisfied on the first day of that period of limited capability for work.
Condition relating to youth – full-time education
12.—(1) For the purposes of paragraph 4(4) of Schedule 1 to the Act, a claimant is
to be treated as receiving full-time education for any period during which the claimant–
(a)
is at least 16 years old but under the age of 19; and
(b)
attends a course of education for 21 hours or more a week.
(2) For the purposes of paragraph (1)(b), in calculating the number of hours a week
during which a claimant attends a course, no account is to be taken of any instruction
or tuition which is not suitable for persons of the same age who do not have a disability.
(3) In determining the duration of a period of full-time education under paragraph
(1) any temporary interruption of that education may be disregarded.
(4) A claimant who is 19 years of age or over is not to be treated for the purposes of
paragraph 4(1)(b) of Schedule 1 to the Act as receiving full-time education.
Modification of the relevant benefit year
13.—(1)  Where paragraph (2) applies, sub-paragraph (1)(f) of paragraph 3 of Schedule
1 to the Act has effect as if “relevant benefit year” is the benefit year which includes
the day which would be the beginning of the period of limited capability for work if
regulation 145 did not apply.
(2) This paragraph applies where a claimant does not satisfy–
(a)
the first contribution condition;
(b)
the second contribution condition; or
(c)
both contribution conditions,
but would satisfy those conditions if the modified definition of “relevant benefit
year” provided in paragraph (1) applied.
( a ) 1971 c. 77.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 14
PART 4
CONDITIONS OF ENTITLEMENT – INCOME-RELATED
ALLOWANCE
Meaning of education
14.—(1)  Subject to regulations 15 and 16, for the purposes of paragraph 6 of
Schedule 1 to the Act, “education” means a course of study to which paragraph (2)
applies which is being undertaken at an educational establishment.
(2)  This paragraph applies to a course of study which is–
(a)
a full-time course which is not funded in whole or in part by–
(i) the Learning and Skills Council for England;
(ii) the Welsh Ministers; or
(iii) the Scottish Ministers at a college of further education;
(b)
a full-time course of higher education which is funded in whole or in part by
the Scottish Ministers;
(c)
funded in whole or in part by the Learning and Skills Council for England or
by the Welsh Ministers if it involves more than 16 guided learning hours per
week for the student in question, according to the number of guided learning
hours per week for that student set out–
(i) in the case of a course funded by the Learning and Skills Council for
England, in the student’s learning agreement signed on behalf of the
establishment which is funded by that Council for the delivery of that
course; or
(ii) in  the case of a course funded by the Welsh Ministers, in a document
signed on behalf of the establishment which is funded by those Ministers
for the delivery of that course;
(d)
not a course of higher education and which is funded in whole or in part by
the Scottish Ministers at a college of further education and involves–
(i) more than 16 hours per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff
according to the number of hours set out in a document signed on behalf
of the college; or
(ii) 16  hours or less per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff and it
involves additional hours using structured learning packages supported
by the teaching staff where the combined total of hours exceeds 21 per
week according to the number of hours set out in a document signed on
behalf of the college; or
(e)
a sandwich course within the meaning prescribed in regulation 2(9) of the
Education (Student Support) Regulations 2007(a), regulation 4(2) of the
Education (Student Loans) (Scotland) Regulations 2007(b) or regulation
2(8) of the Education (Student Support) Regulations (Northern Ireland)
2007(c).
(3) In this regulation “higher education” means higher education within the meaning
of Part 2 of the Further and Higher Education (Scotland) Act 1992(d).
( a ) S.I. 2007/176.
( b ) S.S.I. 2007/154.
( c ) S.R. 2007/195.
( d ) 1992 c. 37, amended by the Further and Higher Education (Scotland) Act 2005 (asp. 6).
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 15-18
Claimants to be treated as receiving education
15.  Subject to regulation 18, a qualifying young person is to be treated as receiving
education for the purposes of paragraph 6(1)(g) of Schedule 1 to the Act.
Claimants not to be treated as receiving education
16.  Where a claimant is under 19 but not a qualifying young person, that claimant
is not to be treated as receiving education where the course of study is not–
(a)
a course leading to a postgraduate degree or comparable qualification, a
first degree or comparable qualification, a diploma of higher education or a
higher national diploma; or
(b)
any other course which is of a standard above advanced GNVQ or equivalent,
including a course which is of a standard above a general certificate of
education (advanced level) or above a Scottish national qualification (higher
or advanced higher).
Courses of study
17.—(1) For the purposes of the definition of “education” in regulation 14, a person
is to be regarded as undertaking a course of study–
(a)
subject to paragraph (2), in the case of a person undertaking a part of a
modular course that would be a course of study for the purposes of these
Regulations, for the period beginning on the day on which that part of the
course starts and ending–
(i) on the last day on which the person is registered with the educational
establishment as attending or undertaking that part as a full-time course
of study; or
(ii) on such earlier date (if any) as the person finally abandons the course or
is dismissed from it;
(b)
in any other case, throughout the period beginning on the date on which the
person starts undertaking the course and ending on the last day of the course
or on such earlier date (if any) as the person finally abandons it or is dismissed
from it.
(2)  For the purpose of sub-paragraph (a) of paragraph (1), the period referred to in
that sub-paragraph includes–
(a)
where a person has failed examinations or has failed to successfully complete
a module relating to a period when the person was attending or undertaking
a part of the course as a course of study, any period in respect of which the
person attends or undertakes the course for the purpose of retaking those
examinations or that module;
(b)
any period of vacation within the period specified in that paragraph or
immediately following that period except where the person has registered
with the educational establishment to attend or undertake the final module
in the course and the vacation immediately follows the last day on which
the person is required to attend or undertake the course.
(3) In paragraph (1), “modular course” means a course of study which consists of
two or more modules, the successful completion of a specified number of which is
required before a person is considered by the educational establishment to have
completed the course.
Circumstances in which the condition that the claimant is not receiving education
does not apply
18.  Paragraph 6(1)(g) of Schedule 1 to the Act does not apply where the claimant is
entitled to a disability living allowance.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 19
PART 5
LIMITED CAPABILITY FOR WORK
Determination of limited capability for work
19.—(1)  For the purposes of Part 1 of the Act, whether a claimant’s capability for
work is limited by the claimant’s physical or mental condition and, if it is, whether the
limitation is such that it is not reasonable to require the claimant to work is to be
determined on the basis of a limited capability for work assessment of the claimant in
accordance with this Part.
(2)  The limited capability for work assessment is an assessment of the extent to
which a claimant who has some specific disease or bodily or mental disablement is
capable of performing the activities prescribed in Schedule 2 or is incapable by reason
of such disease or bodily or mental disablement of performing those activities.
(3)  Subject to paragraph (6), for the purposes of Part 1 of the Act a claimant has
limited capability for work if, by adding the points listed in column (3) of Schedule 2
against any descriptor listed in that Schedule, the claimant obtains a total score of at
least–
(a)
15 points whether singly or by a combination of descriptors specified in
Part 1 of that Schedule;
(b)
15 points whether singly or by a combination of descriptors specified in
Part 2 of that Schedule; or
(c)
15 points by a combination of descriptors specified in Parts 1 and 2 of that
Schedule.
(4) In assessing the extent of a claimant’s capability to perform any activity listed
in Part 1 of Schedule 2, the claimant is to be assessed as if wearing any prosthesis with
which the claimant is fitted or, as the case may be, wearing or using any aid or appliance
which is normally worn or used.
(5) In assessing the extent of a claimant’s capability to perform any activity listed
in Schedule 2, it is a condition that the claimant’s incapability to perform the activity
arises from–
(a)
a specific bodily disease or disablement;
(b)
a specific mental illness or disablement; or
(c)
as a direct result of treatment provided by a registered medical practitioner,
for such a disease, illness or disablement.
(6)  Where more than one descriptor specified for an activity apply to a claimant,
only the descriptor with the highest score in respect of each activity which applies is
to be counted.
(7)  Where a claimant–
(a)
has been determined to have limited capability for work; or
(b)
is to be treated as having limited capability for work under regulations 20,
25, 26, 29 or 33(2),
the Secretary of State may, if paragraph (8) applies, determine afresh whether the
claimant has or is to be treated as having limited capability for work.
(8) This paragraph applies where–
(a)
the Secretary of State wishes to determine whether there has been a relevant
change of circumstances in relation to the claimant’s physical or mental
condition;
(b)
the Secretary of State wishes to determine whether the previous
determination of limited capability for work or that the claimant is to be
treated as having limited capability for work, was made in ignorance of , or
was based on a mistake as to, some material fact; or
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 19-21
(c)
at least 3 months have passed since the date on which the claimant was
determined to have limited capability for work or to be treated as having
limited capability for work.
Certain claimants to be treated as having limited capability for work
20.  A claimant is to be treated as having limited capability for work if–
(a)
the claimant is terminally ill;
(b)
the claimant is–
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal
chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied the
claimant should be treated as having limited capability for work;
(c)
the claimant is–
(i) excluded or abstains from work, or from work of such a kind, pursuant to
a request or notice in writing lawfully made under an enactment; or
(ii) otherwise prevented from working pursuant to an enactment,
by reason of the claimant being a carrier, or having been in contact with a
case, of a relevant disease;
(d)
in the case of a pregnant woman, there is a serious risk of damage to her
health or to the health of her unborn child if she does not refrain from work;
(e)
in the case of a pregnant woman, she–
(i) is within the maternity allowance period; and
(ii) is  entitled to a maternity allowance under section 35(1) of the
Contributions and Benefits Act(a);
(f)
 in the case of a pregnant woman whose expected or actual date of confinement
has been certified in accordance with the Medical Evidence Regulations,
on any day in the period–
(i) beginning with the first date of the 6th week before the expected week of
her confinement or the actual date of her confinement, whichever is
earlier; and
(ii) ending on the 14th day after the actual date of her confinement,
if she would have no entitlement to a maternity allowance or statutory maternity
pay were she to make a claim in respect of that period.
Information required for determining capability for work
21.—(1)  Subject to paragraphs (2) and (3), the information or evidence required to
determine whether a claimant has limited capability for work is–
(a)
evidence of limited capability for work in accordance with the Medical
Evidence Regulations (which prescribe the form of doctor’s statement or
other evidence required in each case);
(b)
any information relating to a claimant’s capability to perform the activities
referred to in Schedule 2 as may be requested in the form of a questionnaire;
and
(c)
any such additional information as may be requested.
(2) Where the Secretary of State is satisfied that there is sufficient information to
determine whether a claimant has limited capability for work without the information
specified in paragraph (1)(b), that information will not be required for the purposes of
making the determination.
( a ) 1992 c. 4. Amended by section 53 of the Welfare Reform and Pensions Act 1999 (c. 30).
13.5154  (–13.5160)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 21-26
(3)  Paragraph (1) does not apply in relation to a determination whether a claimant
is to be treated as having limited capability for work under any of regulations 20
(certain claimants to be treated as having limited capability for work), 25 (hospital in-
patients), 26 (claimants receiving certain regular treatment) and 33(2) (additional
circumstances in which a claimant is to be treated as having limited capability for
work).
Failure to provide information in relation to limited capability for work
22.—(1) Where a claimant fails without good cause to comply with the request
referred to in regulation 21(1)(b), that claimant is, subject to paragraph (2), to be
treated as not having limited capability for work.
(2) Paragraph (1) does not apply unless–
(a)
at least 6 weeks have passed since the claimant was sent the first request for
the information; and
(b)
the claimant was sent a further request at least 4 weeks after the date of the
first request, and at least 2 weeks have passed since the further request was
sent.
Claimant may be called for a medical examination to determine whether the
claimant has limited capability for work
23.—(1) Where it falls to be determined whether a claimant has limited capability
for work, that claimant may be called by or on behalf of a health care professional
approved by the Secretary of State to attend for a medical examination.
(2)  Subject to paragraph (3), where a claimant fails without good cause to attend for
or to submit to an examination listed in paragraph (1), the claimant is to be treated as
not having limited capability for work.
(3)  Paragraph (2) does not apply unless written notice of the time and place for the
examination was sent to the claimant at least 7 days in advance, or unless that claimant
agreed to accept a shorter period of notice whether given in writing or otherwise.
Matters to be taken into account in determining good cause in relation to regulations
22 or 23
24.  The matters to be taken into account in determining whether a claimant has
good cause under regulations 22 (failure to provide information in relation to limited
capability for work) or 23 (failure to attend a medical examination to determine limited
capability for work) include–
(a)
whether the claimant was outside Great Britain at the relevant time;
(b)
the claimant’s state of health at the relevant time; and
(c)
the nature of any disability the claimant has.
Hospital in-patients
25.—(1) A claimant is to be treated as having limited capability for work on any
day on which that claimant is undergoing medical or other treatment as an in-patient
in a hospital or similar institution, or which is a day of recovery from that treatment.
(2)  For the purposes of this regulation, “day of recovery” means a day on which a
claimant is recovering from treatment as an in-patient in a hospital or equivalent
under paragraph (1) and the Secretary of State is satisfied that the claimant should be
treated as having limited capability for work on that day.
Claimants receiving certain regular treatment
26.—(1)  Subject to paragraph (2), a claimant receiving–
(a)
regular weekly treatment by way of haemodialysis for chronic renal failure;
(b)
treatment by way of plasmapheresis or by way of radiotherapy; or
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 26-29
(c)
regular weekly treatment by way of total parenteral nutrition for gross
impairment of enteric function,
is to be treated as having limited capability for work during any week in which that
claimant is engaged in that treatment or has a day of recovery from that treatment.
1Reg. 26(2) substituted
̈1(2) A claimant who receives the treatment referred to in paragraph (1) is only to
by reg. 5(1) of S.I.
be treated as having limited capability for work from the first week of treatment in
2008/2428 as  from
which the claimant undergoes no fewer than–
2 7 . 1 0 . 0 8 .
(a)
two days of treatment;
(b)
two days of recovery from any of the forms of treatment listed in paragraph
(1)(a) to (c); or
(c)
one day of treatment and one day of recovery from that treatment,
but the days of treatment or recovery from that treatment or both need not be
consecutive.̇
(3)  For the purpose of this regulation “day of recovery” means a day on which a
claimant is recovering from any of the forms of treatment listed in paragraph (1)(a) to
(c) and the Secretary of State is satisfied that the claimant should be treated as having
limited capability for work on that day.
Claimant to be treated as having limited capability for work throughout a day
27.  A claimant who at the commencement of any day has, or thereafter develops,
limited capability for work as determined in accordance with the limited capability
for work assessment is to be treated as having limited capability for work throughout
that day.
Night workers
28.—(1)  Where a claimant works for a continuous period which extends over
midnight into the following day, that claimant is to be treated as having limited
capability for work on the day on which the lesser part of that period falls if that
claimant had limited capability for work for the remainder of that day.
(2) Where, in relation to a period referred to in paragraph (1), the number of hours
worked before and after midnight is equal–
(a)
if the days in question fall at the beginning of a period of limited capability
for work, the claimant is to be treated as having limited capability on the
second day; and
(b)
if the days in question fall at the end of a period of limited capability for
work, the claimant is to be treated as having limited capability for work on
the first day.
Exceptional circumstances
29.—(1) A claimant who does not have limited capability for work as determined
in accordance with the limited capability for work assessment is to be treated as
having limited capability for work if paragraph (2) applies to the claimant.
(2) This paragraph applies if–
(a)
the claimant is suffering from a life threatening disease in relation to which–
(i) there is medical evidence that the disease is uncontrollable, or
uncontrolled, by a recognised therapeutic procedure; and
(ii) in the case of a disease that is uncontrolled, there is a reasonable cause
for it not to be controlled by a recognised therapeutic procedure; or
(b)
the claimant suffers from some specific disease or bodily or mental
disablement and, by reasons of such disease or disablement, there would be
a substantial risk to the mental or physical health of any person if the claimant
were found not to have limited capability for work.
13.5162
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 30-32
Conditions for treating a claimant as having limited capability for work until a
determination about limited capability for work has been made
30.—(1) A claimant is, if the conditions set out in paragraph (2) are met, to be
treated as having limited capability for work until such time as it is determined–
(a)
whether or not the claimant has limited capability for work;
(b)
whether or not the claimant is to be treated as having limited capability for
work otherwise than in accordance with this regulation; or
(c)
whether the claimant falls to be treated as not having limited capability for
work in accordance with regulation 22 (failure to provide information in
relation to limited capability for work) or 23 (failure to attend a medical
examination to determine limited capability for work).
(2)  The conditions are–
(a)
that the claimant provides evidence of limited capability for work in
accordance with the Medical Evidence Regulations; and
(b)
that it has not, within the 6 months preceding the date of claim, been
determined, in relation to the claimant’s entitlement to any benefit, allowance
or advantage which is dependent on the claimant having limited capability
for work, that the claimant does not have limited capability for work or is to
be treated as not having limited capability for work under regulation 22 or
23 unless–
(i) the claimant is suffering from some specific disease or bodily or mental
disablement from which the claimant was not suffering at the time of that
determination;
(ii) a disease or bodily or mental disablement from which the claimant was
suffering at the time of that determination has significantly worsened; or
(iii) in the case of a claimant who was treated as not having limited capability
for work under regulation 22 (failure to provide information), the claimant
has since provided the information requested under that regulation.
(3)  Paragraph (2)(b) does not apply where a claimant has made and is pursuing an
appeal against a decision that embodies a determination that the claimant does not
have limited capability for work and that appeal has not yet been determined by an
appeal tribunal constituted under Chapter 1 of Part 1 of the Social Security Act 1998(a).
Claimant who claims jobseeker’s allowance to be treated as not having limited
capability for work
31.—(1) A claimant who–
(a)
claims a jobseeker’s allowance; and
(b)
is able to show a reasonable prospect of obtaining employment,
is, throughout the period of that claim, to be treated as not having limited capability
for work.
(2)  Paragraph (1) applies even though it has been determined that the claimant–
(a)
has limited capability for work; or
(b)
is to be treated as having limited capability for work under any of regulations
20 (certain claimants to be treated as having limited capability for work), 25
(hospital in-patients), 26 (claimants undergoing certain regular treatment)
or 29 (exceptional circumstances).
Certain claimants to be treated as not having limited capability for work
̈132.—(1)̇  A claimant ̈1who is or has been a member of Her Majesty’s forceṡ is
1Reg. 32 re-numbered
to be treated as not having limited capability for work on any day which is recorded
32(1) & words added to
by the Secretary of State for Defence as a day of sickness absence from duty.
re-numbered para. (1)
by reg. 5(2)(a) & (b) of
S.I. 2008/2428 as from
2 7 . 1 0 . 0 8 .
( a ) 1998 c. 14.
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 32-34
1Reg. 32(2) inserted by
̈1(2) A claimant is to be treated as not having limited capability for work on any
reg. 5(2)(c) of S.I.
day on which the claimant attends a training course in respect of which the claimant is
2008/2428 as  from
paid a training allowance or premium pursuant to arrangements made under section 2
2 7 . 1 0 . 0 8 .
of the Employment and Training Act 1973(a) or section 2(3) of the Enterprise and New
towns (Scotland) Act 1990(b).
(3) Paragraph (2) is not to apply–
(a)
for the purposes of any claim to employment and support allowance for a
period commencing after the claimant ceased attending the training course
in question; or
(b)
where any training allowance or premium paid to the claimant is paid for the
sole purpose of travelling or meal expenses incurred or to be incurred under
the arrangement made under section 2 of the Employment and Training Act
1973 or section 2(3) of the Enterprise and New towns (Scotland) Act 1990.̇
Additional circumstances where claimants are to be treated as having limited
capability for work
33.—(1) For the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act, a
claimant is to be treated as having limited capability for work on any day in respect of
which that claimant is entitled to statutory sick pay.
(2) or the purposes of an income-related allowance, a claimant is to be treated as
having limited capability for work where–
(a)
that claimant is not a qualifying young person;
(b)
that claimant is receiving education; and
(c)
paragraph 6(1)(g) of Schedule 1 to the Act does not apply in accordance
with regulation 18.
PART 6
LIMITED CAPABILITY FOR WORK-RELATED ACTIVITY
Determination of limited capability for work-related activity
34.—(1) For the purposes of Part 1 of the Act, where, by reason of a claimant’s
physical or mental condition, at least one of the descriptors set out in Schedule 3
applies to the claimant, the claimant’s capability for work-related activity will be
limited and the limitation will be such that it is not reasonable to require that claimant
to undertake such activity.
(2) A descriptor applies to a claimant if that descriptor applies to the claimant for
the majority of the time or, as the case may be, on the majority of the occasions on
which the claimant undertakes or attempts to undertake the activity described by that
descriptor.
(3) In determining whether a descriptor applies to a claimant, the claimant is to be
assessed as if the claimant were wearing any prosthesis with which the claimant is
fitted or, as the case may be, wearing or using any aid or appliance which the claimant
normally wears or uses.
(4)  Where a determination has been made about whether a claimant–
(a)
has limited capability for work-related activity;
(b)
is to be treated as having limited capability for work-related activity; or
(c)
is to be treated as not having limited capability for work-related activity,
( a ) 1973 c. 50. Section 2(1) was substituted by section 25(1) of the Employment Act 1988 (c.
1 9 ) .
( b ) 1990 c. 35. Section 2(3) was amended by section 47(2), (4)(a), section 51 of and Schedule
10 to the Trade Union Reform and Employment Act 1993 (c. 19).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 34-37
the Secretary of State may, if paragraph (5) applies, determine afresh whether the
claimant has or is to be treated as having limited capability for work-related activity.
(5) This paragraph applies where–
(a)
the Secretary of State wishes to determine whether there has been a relevant
change of circumstances in relation to the claimant’s physical or mental
condition;
(b)
the Secretary of State wishes to determine whether the previous
determination about limited capability for work-related activity or about
treating the claimant as having or as not having limited capability for work-
related activity, was made in ignorance of, or was based on a mistake as to,
some material fact; or
(c)
at least 3 months have passed since the date of the previous determination
about limited capability for work-related activity or about treating the
claimant as having or as not having limited capability for work-related
activity.
Certain claimants to be treated as having limited capability for work-related activity
35.—(1) A claimant is to be treated as having limited capability for work-related
activity if–
(a)
the claimant is terminally ill;
(b)
the claimant is–
(i) receiving treatment by way of intravenous, intraperitoneal or intrathecal
chemotherapy; or
(ii) recovering from that treatment and the Secretary of State is satisfied that
the claimant should be treated as having limited capability for work-
related activity; or
(c)
in the case of a woman, she is pregnant and there is a serious risk of damage
to her health or to the health of her unborn child if she does not refrain from
work-related activity.
(2) A claimant who does not have limited capability for work-related activity as
determined in accordance with regulation 34(1) is to be treated as having limited
capability for work-related activity if–
(a)
the claimant suffers from some specific disease or bodily or mental
disablement; and
(b)
by reasons of such disease or disablement, there would be a substantial risk
to the mental or physical health of any person if the claimant were found not
to have limited capability for work-related activity.
Information required for determining capability for work-related activity
36.—(1)  Subject to paragraph (2), the information or evidence required to determine
whether a claimant has limited capability for work-related activity is–
(a)
any information relating to the descriptors set out in Schedule 3 as may be
requested in the form of a questionnaire; and
(b)
any such additional information as may be requested.
(2) Where the Secretary of State is satisfied that there is sufficient information to
determine whether a claimant has limited capability for work-related activity without
the information specified in paragraph (1)(a), that information will not be required for
the purposes of making the determination.
Failure to provide information in relation to work-related activity
37.—(1) Where a claimant fails without good cause to comply with the request
referred to in regulation 36(1)(a), the claimant is, subject to paragraph (2), to be treated
as not having limited capability for work-related activity.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 37-40
(2) Paragraph (1) does not apply unless–
(a)
at least 6 weeks have passed since the claimant was sent the first request for
the information; and
(b)
the claimant was sent a further request at least 4 weeks after the date of the
first request, and at least 2 weeks have passed since the further request was
sent.
Claimant may be called for a medical examination to determine whether the
claimant has limited capability for work-related activity
38.—(1) Where it falls to be determined whether a claimant has limited capability
for work-related activity, that claimant may be called by or on behalf of a health care
professional approved by the Secretary of State to attend for a medical examination.
(2)  Subject to paragraph (3), where a claimant fails without good cause to attend for
or to submit to an examination listed in paragraph (1), the claimant is to be treated as
not having limited capability for work-related activity.
(3)  Paragraph (2) does not apply unless written notice of the time and place for the
examination was sent to the claimant at least 7 days in advance, or unless the claimant
agreed to accept a shorter period of notice whether given in writing or otherwise.
Matters to be taken into account in determining good cause in relation to regulations
37 or 38
39.  The matters to be taken into account in determining whether a claimant has
good cause under regulations 37 (failure to provide information in relation to work-
related activity) or 38 (failure to attend a medical examination to determine limited
capability for work-related activity) include–
(a)
whether the claimant was outside Great Britain at the relevant time;
(b)
the claimant’s state of health at the relevant time; and
(c)
the nature of any disability the claimant has.
PART 7
EFFECT OF WORK ON ENTITLEMENT TO AN
EMPLOYMENT AND SUPPORT ALLOWANCE
A claimant who works to be treated as not entitled to an employment and support
allowance
40.—(1)  Subject to the following paragraphs, a claimant is to be treated as not
entitled to an employment and support allowance in any week in which that claimant
does work.
(2)  Paragraph (1) does not apply to–
(a)
work as a councillor;
(b)
duties undertaken on either one full day or two half-days a week as–
(i) a member of the Disability Living Allowance Advisory Board; or
(ii) a panel member with a disability qualification, as defined in regulation
1(3) (interpretation) of the Social Security and Child Support (Decisions
and Appeals) Regulations 1999(a), acting as a member of an appeal
tribunal constituted under Chapter 1 of Part 1 of the Social Security Act
1998;
(c)
domestic tasks carried out in the claimant’s own home or the care of a relative;
(d)
duties undertaken in caring for another person who is accommodated with
the claimant by virtue of arrangements made under any of the provisions
( a ) S.I. 1999/991.
13.5166  (–13.5172)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 40-41
referred to in paragraphs 28 or 29 of Schedule 8 (sums to be disregarded in
the calculation of income other than earnings) where the claimant is in
receipt of any payment specified in those paragraphs;
(e)
any activity the claimant undertakes during an emergency to protect another
person or to prevent serious damage to property or livestock; or
(f)
any of the categories of work set out in regulation 45 (exempt work).
(3)  This regulation is subject to regulation 46 (effect of work on entitlement to
contributory allowance where claimant is receiving certain regular treatment).
(4) A claimant who does work to which this regulation applies in a week which is–
(a)
the week in which the claimant first becomes entitled to a benefit, allowance
or advantage on account of the claimant’s limited capability for work in any
period; or
(b)
the last week in any period in which the claimant has limited capability for
work or is treated as having limited capability for work,
is to be treated as not entitled to an employment and support allowance by virtue of
paragraph (1) only on the actual day or days in that week on which the claimant does
that work.
(5) Regulation 145 (linking rules) does not apply for the purposes of calculating
the beginning or end of any period of limited capability for work under paragraph (4).
(6)  The day or days in a week on which a night worker works, for the purposes of
̈1paragraph (4)̇ , are to be calculated by reference to regulation 28 (night workers).
1Words in reg. 40(6)
substituted by reg. 6 of
(7) In this regulation–
S.I. 2008/2428 as from
2 7 . 1 0 . 0 8 .
“week” means a week in respect of which a claimant is entitled to an employment
and support allowance;
“work” means any work which a claimant does, whether or not that claimant
undertakes it in expectation of payment;
“work as a councillor” is to be taken to include any work which a claimant
undertakes as a member of any of the bodies referred to in section 177(1) of the
Local Government Act 1972(a) or sub-sections 49(1) or 49(1A) of the Local
Government (Scotland) Act 1973(b), of which the claimant is a member by reason
of being a councillor.
Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule
1 to the Act
41.—(1) For 
the purposes of paragraph 6(1)(e) of Schedule 1 to the Act (conditions
of entitlement to an income-related allowance), “remunerative work” means any work
which a claimant does for which payment is made or which is done in expectation of
payment, other than work listed in paragraph (2) of regulation 40.
(2)  Subject to paragraph (3), a claimant who was, or who was being treated as–
(a)
engaged in remunerative work; and
(b)
in respect of that work earnings to which regulation 95(1)(b) and (d) applies
are paid,
is to be treated as being engaged in remunerative work for the period for which those
earnings are taken into account in accordance with Part 10 of these Regulations.
( a ) 1972 c. 70. Subsection (1) was substituted by the Local Government and Housing Act 1989
(c. 42), section 194 and Schedule 11, paragraph 28(2). Subsection (1) was amended by the
School Standards and Framework Act 1998, section 140(1) and (3), Schedule 30, paragraph
3(2) and Schedule 31.
( b ) 1973 c. 65. Subsections 49(1)(b) and (f) were repealed by Schedule 7 of the Local
Government (Scotland) Act 1975. Section 49(1A) was inserted by Local Government
(Scotland) Act 1975. Section 49(1)(a) was repealed by regulation 2(4) of the Local
Governance (Scotland) Act 2004 (Allowances and Expenses) Regulations  2007.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 41-43
(3)  Paragraph (2) does not apply to earnings disregarded under paragraph 1 of
Schedule 7 (sums to be disregarded in the calculation of earnings).
Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule
1 to the Act
42.—(1) For the purposes of paragraph 6(1)(f) of Schedule 1 to the Act, (conditions
of entitlement to an income-related allowance where a claimant must not be a member
of a couple the other member of which is engaged in remunerative work), “remunerative
work” means work in which the claimant’s partner is engaged or, where the partner’s
hours of work fluctuate, the partner is engaged on average, for not less than 24 hours
a week, being work for which payment is made or which is done in expectation of
payment.
(2) In calculating the number of hours for which a claimant’s partner is engaged in
work so as to determine whether that partner is engaged in remunerative work, the
number of hours are to be determined in accordance with paragraphs (8) and (9) of
regulation 45 and those paragraphs are to be read as though they referred to the
claimant’s partner.
(3) The claimant’s partner is to be treated as engaged in remunerative work during
any period for which that partner is absent from work referred to in paragraph (1) if the
absence is either without good cause or by reason of a recognised, customary or other
holiday.
(4)  Subject to paragraph (5), a claimant’s partner who was, or who was being treated
as–
(a)
engaged in remunerative work; and
(b)
in respect of that work earnings to which regulation 95(1)(b) and (d) applies
are paid,
is to be treated as being engaged in remunerative work for the period for which those
earnings are taken into account in accordance with Part 10 of these Regulations.
(5)  Paragraph (4) does not apply to earnings disregarded under paragraph 1 of
Schedule 7 (sums to be disregarded in the calculation of earnings).
(6)  For the purposes of this regulation, in determining the number of hours in
which a claimant’s partner is engaged or treated as engaged in remunerative work, no
account is to be taken of any hours in which the claimant’s partner is engaged in an
employment or a scheme to which regulation 43(1) or (2) (claimants’ partners not
treated as engaged in remunerative work) applies.
Circumstances under which partners of claimants entitled to an income-related
allowance are not to be treated as engaged in remunerative work
43.—(1) A claimant’s partner is not to be treated as engaged in remunerative work
in so far as–
(a)
the partner is engaged in child minding in the partner’s home;
(b)
the partner is engaged by a charity or voluntary organisation, or is a volunteer,
where the only payment received by the partner or due to be paid to the
partner, is a payment which is to be disregarded under regulation 104(2)
(calculation of income other than earnings) and paragraph 2 of Schedule 8
(sums to be disregarded in the calculation of income other than earnings);
(c)
the partner is engaged on a scheme for which a training allowance is being
paid;
(d)
the partner is receiving assistance under the self-employment route;
(e)
the partner is engaged in employment as any one of the following–
(i) a part-time fireman in a fire brigade maintained in pursuance of the Fire
and Rescue Services Act 2004(a);
( a ) 2004 c. 21.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 43
(ii) a part-time fire-fighter employed by a fire and rescue authority;
(iii) a part-time fire-fighter employed by a fire and rescue authority (as defined
in section 1 of the Fire (Scotland) Act 2005(a) or a joint fire and rescue
board constituted by an amalgamation scheme made under section 2(1)
of that Act;
(iv) an auxiliary coastguard in respect of coast rescue activities;
(v) a person engaged part-time in the manning or launching of a life boat;
(vi) a member of any territorial or reserve force prescribed in Part 1 of Schedule
6 to the Social Security (Contributions) Regulations 2001(b); or
(f)
the partner is undertaking work as a councillor;
(g)
the partner is engaged in caring for a person who is accommodated with the
partner by virtue of arrangements made under any of the provisions referred
to in paragraphs 28 or 29 of Schedule 8 (sums to be disregarded in the
calculation of income other than earnings) and the partner is in receipt of
any payment specified in those paragraphs;
(h)
the partner is engaged in an activity in respect of which–
(i) a sports award has been made, or is to be made, to the partner; and
(ii) no other payment is made or is expected to be made to the partner.
(2) A claimant’s partner is not to be treated as engaged in remunerative work, where
the partner is–
(a)
a person who is mentally or physically disabled and by reason of that
disability–
(i) the person’s earnings are reduced to 75% or less of what a person without
that disability and working the same number of hours would reasonably
be expected to earn in that employment or in comparable employment in
the area; or
(ii) the person’s number of hours are 75% or less of what a person without
that disability would reasonably be expected to undertake in that
employment or in comparable employment in the area;
(b)
subject to regulation 42(4) (partners treated as engaged in remunerative
work), a person who would otherwise have satisfied section 126(1) of the
Contributions and Benefits Act (trade disputes)(c) or in respect of whom
section 124(1) of that Act (conditions of entitlement to income support)(d)
would otherwise have had effect as modified by section 127(b) of that Act
(effect of return to work)(e);
(c)
a person who would otherwise satisfy the conditions set out in paragraph 4
of Schedule 1B to the Income Support Regulations(f);
(d)
a person who–
(i) is in employment;
(ii) lives in, or is temporarily absent from, a care home, an Abbeyfield Home
or an independent hospital; and
( a ) 2005 asp. 5.
( b ) S.I. 2001/1004.
( c ) Section 126(1) was amended by paragraph 31 of Schedule 1 to the Incapacity Act 1994 (c.
18) and paragraph 31(a) and (b) of Schedule 2 to the Jobseekers Act 1995 (c. 18).
( d ) Section 124(1) was amended by paragraph 30(2) to (5) of Schedule 2 to the Jobseekers Act
1995 and by section 14 of and paragraphs 1, 2(1) and (2) of Part 1 of Schedule 2 to the
State Pension Credit Act 2002 (c. 16).
( e ) Section 127(b) was amended by paragraph 44 of Schedule 24 to the Civil Partnership Act
2004 (c. 33).
( f ) Schedule 1B to the Income Support Regulations was inserted by regulation 22 of and
Schedule 1 to the Income Support (Jobseeker’s Allowance Consequential Amendments)
Regulations 1996 (S.I. 1996/206). Paragraph 4 was amended by regulation 33 of the
Jobseekers Allowance and Income Support (General) (Amendment) Regulations 1996 (S.I.
1996/1517), by paragraph 2 of Schedule 2 to the Social Security Amendment (Carer’s
Allowance) Regulations 2002 (S.I. 2002/2497) and by regulation 4(1) of the Social Security
(Loss of Benefit) (Consequential Amendments) Regulations 2002 (S.I. 2002/490).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 43-45
(iii) requires personal care by reason of old age, disablement, past or present
dependence on alcohol or drugs, past or present mental disorder or a
terminal illness.
(3) The claimant’s partner is not to be treated as engaged in remunerative work on
any day on which that partner is on maternity leave, paternity leave or adoption leave
or is absent from work because the partner is ill.
(4) In this regulation–
“work as a councillor” has the same meaning as in regulation 40;
“volunteer” means a person who is engaged in voluntary work otherwise than for
a relative, where the only payment received or due to be paid to the person by
virtue of being so engaged is in respect of any expenses reasonably incurred by
the person in connection with that work.
Claimants 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
44.—(1) Where a claimant is treated as not entitled to an employment and support
allowance by reason of regulation 40(1), subject to paragraph (2), the claimant is to be
treated as not having limited capability for work.
(2)  Paragraph (1) does not apply where the claimant remains entitled to a
contributory allowance, but is not entitled to an income-related allowance by reason
of regulation 40(1).
(3)  Paragraph (1) applies even if–
(a)
it has been determined that the claimant has or is to be treated as having,
under any of regulations 20 (certain claimants to be treated as having limited
capability for work), 25 (hospital in-patients), 26 (claimants undergoing
certain regular treatment) or 29 (exceptional circumstances), limited
capability for work; or
(b)
the claimant meets the conditions set out in regulation 30(2) for being treated
as having limited capability for work until a determination is made in
accordance with the limited capability for work assessment.
Exempt work
45.—(1)  The categories of work referred to in regulation 40(2)(f) are set out in the
following paragraphs.
(2)  Work for which the earnings in any week do not exceed £20.00.
1Amounts substituted in
(3) Work for which the earnings in any week do not exceed ̈1£92.00̇ and which–
reg. 45(3) & (4) by reg.
(a)
is part of the claimant’s treatment programme and is done under medical
6(2) of S.I. 2008/2428
supervision while the claimant is an in-patient, or is regularly attending as
as from 27.10.08.
an out-patient, of a hospital or similar institution; or
(b)
is supervised by a person employed by a public or local authority or voluntary
organisation engaged in the provision or procurement of work for persons
who have disabilities.
(4) Work which is done for less than 16 hours a week, for which earnings in any
week do not exceed ̈1£92.00̇ and which–
(a)
is done during a 52 week period beginning on the first day on which the
work is done, provided that–
(i) the claimant has not previously done specified work;
(ii) since the beginning of the last period of specified work, the claimant has
ceased to be entitled to a relevant benefit for a continuous period
exceeding 12 weeks;
(iii) not less than 52 weeks have elapsed since the claimant previously did
the specified work; or
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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Reg. 45
(b)
done by a claimant who has or is treated as having limited capability for
work-related activity.
(5) Work done in the course of receiving assistance in pursuing self-employed
earner’s employment whilst participating in a programme provided or other
arrangements made under section 2 of the Employment and Training Act 1973(a)
(functions of the Secretary of State) or section 2 of the Enterprise and New Towns
(Scotland) Act 1990(b) (functions in relation to training for employment etc.).
(6) Work done where the claimant receives no payment of earnings and where the
claimant–
(a)
is engaged by a charity or voluntary organisation; or
(b)
is a volunteer,
where the Secretary of State is satisfied in any of those cases that it is reasonable for
the claimant to provide the service free of charge.
(7) Work done in the course of participating in a work placement approved in
writing by the Secretary of State before the placement starts.
(8)  The number of hours for which a claimant is engaged in work is to be
determined–
(a)
where no recognisable cycle has been established in respect of a claimant’s
work, by reference to the number of hours or, where those hours are likely to
fluctuate, the average of the hours, which the claimant is expected to work
in a week;
(b)
where the number of hours for which the claimant is engaged fluctuate, by
reference to the average of hours worked over–
(i) if there is a recognisable cycle of work, the period of one complete cycle
(including, where the cycle involves periods in which the claimant does
no work, those periods but disregarding any other absences);
(ii) in any other case, the period of five weeks immediately before the date of
claim or the date on which a superseding decision is made under section
10 (decisions superseding earlier decisions) of the Social Security Act
1998(c), or such other length of time as may, in the particular case, enable
the claimant’s average hours of work to be determined more accurately.
(9)  For the purposes of determining the number of hours for which a claimant is
engaged in work, that number is to include any time allowed to that claimant by the
claimant’s employer for a meal or for refreshment, but only where that claimant is, or
expects to be, paid earnings in respect of that time.
(10) In 
this regulation–
“relevant benefit” means–
(a) an employment and support allowance; or
(b) credits under regulations made under section 22(5) of the Contributions
and Benefits Act(d),
( a ) 1973 c. 50. Section 2 was substituted by section 25(1) of the Employment Act 1988.
Subsections (4) and (6) of section 2 were repealed by section 29(4) of and Schedule 7 to the
Employment Act 1989. Subsections (3A) and (3B) of section 2, which apply to Scotland
only, inserted by the Trade Union Reform and Employment Rights Act 1993.
( b ) 1990 c. 35. Section 2 amended by sections 47(4)(a) and (b) and 51 of and Schedule 10 to
the Trade Union Reform and Employment Rights Act 1993. Section 2 also amended by
articles 1(2) and 4 of and paragraph 100(2) of Schedule 2 to Scotland Act 1998
(Consequential Modifications) Order (No. 2) 1999.
( c ) 1998 c. 14. Section 10 was amended by sections 18 and 26(3) of and by paragraph 23 of
Schedule 7 to and by Schedule 10 to the Transfer of Functions Act 1999.
( d ) 1992 c. 4. Section 22 was amended by Paragraph 22 of Schedule 2 to the Jobseeker’s Act
1995.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 45-48
in respect of which the question of the claimant’s limited capability for work
arises under the Act;
“specified work” means work done in accordance with paragraph (4);
“supervised work” means work done in accordance with paragraph (3)(a) or (b);
“volunteer” has the same meaning it has in regulation 43;
“work placement” means practical work experience with an employer, which is
neither paid nor undertaken in expectation of payment.
Effect of work on entitlement to contributory allowance where claimant is receiving
certain regular treatment
46.  Where a claimant who is entitled to a contributory allowance and is treated as
having limited capability for work by virtue of regulation 26 works on any day during
a week when the claimant is, in accordance with regulation 26, receiving certain
regular treatment or recovering from that treatment, that work is to have no effect on
the claimant’s entitlement to the contributory allowance.
PART 8
CONDITIONALITY
CHAPTER 1
Work-focused health-related assessment
Requirement to take part in a work-focused health-related assessment
47.—(1)  The Secretary of State may require a claimant who satisfies the
requirements in paragraph (2) to take part in one or more work-focused health-related
assessments as a condition of continuing to be entitled to the full amount of
employment and support allowance payable to the claimant.
(2)  The requirements referred to in paragraph (1) are that the claimant–
(a)
is either–
(i) entitled to an employment and support allowance; or
(ii) a person who has made a claim for an employment and support allowance
to which regulations under section 5(1)(c) of the Administration Act
apply;
(b)
is not a member of the support group; and
(c)
has not reached the age at which a woman of the same age as the claimant
would attain pensionable age.
(3)  Any requirement to take part in a work-focused health-related assessment ceases
to have effect if the claimant ceases to satisfy the requirements in paragraph (2).
Work-focused health-related assessment
48.  For the purposes of section 11(7)(c) of the Act, matters to be assessed in the
work-focused health-related assessment include–
(a)
 difficulties which are likely to be experienced as a result of the claimant’s
physical or mental condition in relation to obtaining or remaining in work
and how these might be managed or alleviated; and
(b)
the claimant’s views on the impact of the claimant’s physical or mental
condition in relation to obtaining or remaining in work and any aspirations
in relation to work in the light of that condition.
13.5178  (–13.5184)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 49-53
Notification of assessment
49.—(1) The health care professional who is to carry out the work-focused health-
related assessment, or a person acting on the health care professional’s behalf, must
notify the claimant of the requirement to attend the work-focused health-related
assessment including details of the date, time and place of the assessment.
(2)  Notification under paragraph (1) must be given in writing at least 7 days before
the claimant is required to attend the work-focused health-related assessment unless
the claimant agrees to accept a shorter period of notice whether given in writing or
otherwise.
Determination of the place of the work-focused health-related assessment
50.—(1)  Subject to paragraph (2), the work-focused health-related assessment must
be carried out in a medical examination centre.
(2) A work-focused health-related assessment may take place at the claimant’s home
if the Secretary of State is of the opinion that requiring the claimant to attend elsewhere
would cause the claimant undue inconvenience or endanger the claimant’s health.
Taking part in a work-focused health-related assessment
51.  A claimant is to be regarded as having taken part in a work-focused health-
related assessment if the claimant–
(a)
attends for the assessment at the date, time and place notified in accordance
with regulation 49;
(b)
provides all information which the Secretary of State requests as being
necessary for the work-focused health-related assessment; and
(c)
participates in discussions to the extent the Secretary of State considers
necessary for the work-focused health-related assessment.
Deferral of requirement to take part in a work-focused health-related assessment
52.—(1)  Where–
(a)
a health care professional has conducted an assessment in relation to the
claimant for the purpose of enabling the Secretary of State to determine
whether the claimant has limited capability for work-related activity;
(b)
it appears to the health care professional that–
(i) at least one of the descriptors set out in Schedule 3 applies to the claimant;
or
(ii) regulation 35 applies to the claimant; and
(c)
the Secretary of State has not made a determination about whether the
claimant has limited capability for work-related activity,
the requirement to take part in the work-focused health-related assessment does not
apply until such time after the Secretary of State has made a determination in relation
to the claimant’s limited capability for work-related activity as the Secretary of State
may decide.
(2) Where paragraph (1) applies, the health care professional must notify the claimant
that the requirement to take part in the work-focused health-related assessment has
been deferred, pending determination by the Secretary of State of the claimant’s
capability for work-related activity.
Failure to take part in a work-focused health-related assessment
53.—(1) A claimant who is required to take part in a work-focused health-related
assessment but fails to do so must show good cause for that failure within 5 working
days of the date on which the Secretary of State gives notification of that failure.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 53-56
(2)  The Secretary of State must determine whether a claimant who is required to
take part in a work-focused health-related assessment has failed to do so and, if so,
whether the claimant has shown good cause for that failure in accordance with paragraph
(1).
(3) In determining whether a claimant has shown good cause for the failure to
participate in a work-focused health-related assessment, the Secretary of State must
take the following matters into account–
(a)
whether the claimant was outside Great Britain at the time of the notification;
(b)
the claimant’s state of health at the time of the work-focused health-related
assessment;
(c)
the nature of any disability which the claimant has; and
(d)
any other matter which the Secretary of State considers appropriate.
CHAPTER 2
Work-focused interviews
Requirement to take part in a work-focused interview
54.—(1)  The Secretary of State may require a claimant who satisfies the
requirements in paragraph (2) to take part in one or more work-focused interviews as a
condition of continuing to be entitled to the full amount of employment and support
allowance payable to the claimant.
(2)  The requirements referred to in paragraph (1) are that the claimant–
(a)
is either–
(i) entitled to an employment and support allowance; or
(ii) a person in respect of whom the Secretary of State has made an award
under regulation 146(1);
(b)
is not a member of the support group;
(c)
has not reached the age at which a woman of the same age as the claimant
would attain pensionable age; and
(d)
is not only entitled to a contributory allowance payable at a nil rate.
(3)  Any requirement to take part in a work-focused interview ceases to have effect
if the claimant ceases to satisfy the requirements in paragraph (2).
Work-focused interview
55.  The purposes of a work-focused interview are any or all of the following–
(a)
assessing the claimant’s prospects for remaining in or obtaining work;
(b)
assisting or encouraging the claimant to remain in or obtain work;
(c)
identifying activities that the claimant may undertake that will make
remaining in or obtaining work more likely;
(d)
identifying training, educational or rehabilitation opportunities for the
claimant which may make it more likely that the claimant will remain in or
obtain work or be able to do so;
(e)
identifying current or future work opportunities, including self-employment
opportunities, for the claimant, that are relevant to the claimant’s needs and
abilities.
Notification of interview
56.—(1)  The Secretary of State must notify the claimant of the requirement to
attend the work-focused interview including details of the date, time and place of the
interview.
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Regs. 56-58
(2) A work-focused interview may take place at a claimant’s home if it is determined
that requiring the claimant to attend elsewhere would cause undue inconvenience to,
or endanger the health of, the claimant.
(3)  The notification referred to in paragraph (1) may be in writing or otherwise.
Taking part in a work-focused interview
57.—(1) A 
claimant is regarded as having taken part in a work-focused interview if
the claimant–
(a)
attends for the interview at the place and at the date and time notified in
accordance with regulation 56;
(b)
provides information, if requested by the Secretary of State, about any or all
of the matters set out in paragraph (2);
(c)
participates in discussions to the extent the Secretary of State considers
necessary, about any or all of the matters set out in paragraph (3);
(d)
assists the Secretary of State in the completion of an action plan.
(2)  The matters referred to in paragraph (1)(b) are–
(a)
the claimant’s educational qualifications and vocational training;
(b)
the claimant’s work history;
(c)
the claimant’s aspirations for future work;
(d)
the claimant’s skills that are relevant to work;
(e)
the claimant’s work-related abilities;
(f)
the claimant’s caring or childcare responsibilities; and
(g)
any paid or unpaid work that the claimant is undertaking.
(3)  The matters referred to in paragraph (1)(c) are–
(a)
any activity the claimant is willing to undertake which may make obtaining
or remaining in work more likely;
(b)
any such activity that the claimant may have previously undertaken;
(c)
any progress the claimant may have made towards remaining in or obtaining
work;
(d)
any work-focused health-related assessment the claimant may have taken
part in; and
(e)
the claimant’s opinion as to the extent to which the ability to remain in or
obtain work is restricted by the claimant’s physical or mental condition.
Action plan
58.—(1) An action plan is a document that is completed by the Secretary of State
and contains–
(a)
a record of a work-focused interview;
(b)
a record of any activity that the claimant is willing to take which may make
obtaining or remaining in work more likely or which may make it more
likely that the claimant will be able to do so;
(c)
any other information that the Secretary of State considers to be appropriate.
(2) An action plan must be in writing.
(3)  The Secretary of State must provide a claimant who attends a work-focused
interview with an action plan.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 59-61
Deferral of requirement to take part in a work-focused interview
59.—(1) A 
requirement to take part in a work-focused interview may be deferred or
treated as having been deferred if at the time the work-focused interview is to take
place, or was due to take place, such an interview would not at that time be or have
been–
(a)
of assistance to the claimant; or
(b)
appropriate in the circumstances.
(2) A decision under paragraph (1) may be made at any time after the requirement to
take part in the work-focused interview is imposed, including after the time that the
work-focused interview was due to take place or took place.
(3) Where a requirement to take part in a work-focused interview is deferred, or
treated as having been deferred, then the time that the work-focused interview is to
take place must be re-determined.
Requirement to take part in a work-focused interview not to apply
60.  The Secretary of State may determine that a requirement on a claimant to take
part in a work-focused interview is not to apply, or is to be treated as not having
applied, if that interview would not be, or would not have been, of assistance because
the claimant is or was likely to be starting or returning to work.
Failure to take part in a work-focused interview
61.—(1) A claimant who is required to take part in a work-focused interview but
fails to do so must show good cause for that failure within 5 working days of the date
on which the Secretary of State gives notification of that failure.
(2)  The Secretary of State must determine whether a claimant who is required to
take part in a work-focused interview has failed to do so and, if so, whether the claimant
has shown good cause for that failure in accordance with paragraph (1).
(3) In determining whether a claimant has shown good cause for the failure to take
part in a work-focused interview, the Secretary of State may take the following matters
into account–
(a)
that the claimant misunderstood the requirement to take part in the work-
focused interview due to learning, language or literacy difficulties or any
misleading information given or sent by the Secretary of State;
(b)
that the claimant had transport difficulties and that no reasonable alternative
was available;
(c)
that the claimant was attending an interview with an employer with a view
to remaining in or obtaining work;
(d)
that the claimant was pursuing employment opportunities as a self-employed
earner;
(e)
that the claimant was attending a medical or dental appointment and that it
would have been unreasonable in the circumstances to re-arrange the
appointment;
(f)
that the claimant was accompanying another person for whom the claimant
has caring responsibilities to a medical or dental appointment and that it
would have been unreasonable for that other person to re-arrange the
appointment;
(g)
that the claimant, a dependant or another person for whom the claimant
provides care suffered an accident, sudden illness or relapse of a physical or
mental condition;
(h)
that the claimant was attending the funeral of a relative or close friend on
the day of the work-focused interview;
(i)
that the physical or mental condition of the claimant made it impossible to
attend at the time and place fixed for the interview;
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Regs. 61-63
(j)
that the established customs and practices of the religion to which the
claimant belongs prevented attendance on that day or at that time;
(k)
any other matter which the Secretary of State considers appropriate.
Contracting out certain functions relating to work-focused interviews
62.—(1)  Any function of the Secretary of State specified in paragraph (2) may be
exercised by, or by employees of, such person (if any) as may be authorised by the
Secretary of State.
(2)  The functions are any function under–
(a)
regulation 54(1) (requirement to take part in a work-focused interview);
(b)
regulation 56(1) and (2) (notification requirement);
(c)
regulation 57(1)(b) and (c) (taking part in a work-focused interview);
(d)
regulation 58(1) and (3) (action plan);
(e)
regulation 59(1) and (3) (deferral of requirement to take part in a work-
focused interview);
(f)
regulation 60 (requirement to take part in a work-focused interview not to
apply).
CHAPTER 3
Reduction of employment and support allowance
Reduction of employment and support allowance
63.—(1) Where the Secretary of State has determined that a claimant who was
required to take part in–
(a)
a work-focused health-related assessment; or
(b)
a work-focused interview,
has failed to do so and has failed to show good cause for that failure in accordance
with regulation 53 or 61, as the case may be (“a failure determination”), the amount of
the employment and support allowance payable to the claimant is to be reduced in
accordance with this regulation.
(2)  Subject to paragraph (3), the amount of the reduction in relation to each failure
determination is–
(a)
50% of the amount of the work-related activity component as set out in Part
4 of Schedule 4 for the first 4 benefit weeks to which, by virtue of section
10(5) of the Social Security Act 1998(a) or regulations made under section
10(6) of that Act, the reduction applies; and
(b)
100% of the amount of that component for each subsequent benefit week.
(3) In any benefit week, the amount of an employment and support allowance payable
to a claimant is not, by virtue of this regulation, to be reduced–
(a)
below 10 pence;
(b)
in relation to more than–
(i) one failure determination relating to a work-focused health-related
assessment; and
(ii) one failure determination relating to a work-focused interview; and
(c)
by more than 100% of the amount of the work-related activity component as
set out in Part 4 of Schedule 4 in any circumstances.
( a ) 1998 c. 14.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 63-66
(4) Where a claimant is entitled to both a contributory allowance and an income-
related allowance, any reduction in the claimant’s allowance must first be applied to
the part of that allowance treated as attributable to the claimant’s contributory allowance
and only if there is any amount outstanding is it to be applied to the part of that
allowance treated as attributable to the claimant’s income-related allowance.
(5)  For the purposes of determining the amount of any income-related allowance
payable, a claimant is to be treated as receiving the amount of any contributory
allowance which would have been payable but for any reduction made in accordance
with this regulation.
Cessation of reduction
64.—(1)  Any reduction imposed as a result of a failure determination which resulted
from a failure to take part in a work-focused health-related assessment ceases to have
effect if–
(a)
the claimant complies with a requirement to attend a work-focused health-
related assessment; or
(b)
the claimant subsequently ceases to meet the requirements set out in
regulation 47(2).
(2) Any reduction imposed as a result of a failure determination which resulted
from a failure to take part in a work-focused interview ceases to have effect if–
(a)
the claimant complies with a requirement to attend a work-focused interview;
or
(b)
the claimant subsequently ceases to meet the requirements set out in
regulation 54(2).
CHAPTER 4
Notification
Notification under this Part
65.—(1)  Where written notification is to be given in accordance with this Part,
such notification may be sent by post.
(2) Any notification sent by post is to be taken to have been received on the second
working day after posting.
CHAPTER 5
Modification of the Act in relation to claims to which section 5(1)(c) of the
Administration Act applies
Modifications of the Act
66.—(1)  Where a person has made a claim for an employment and support allowance
to which section 5(1)(c) of the Administration Act applies, the Act applies with the
following modifications.
(2)  Section 11(1) of the Act applies–
(a)
as if for sub-paragraph (a) there were substituted–
“(a) either–
(i) entitled to an employment and support allowance; or
(ii) a person who has made a claim for an employment and support
allowance   to which regulations under section 5(1)(c) of the
Administration Act apply; and”; and
13.5190  (–13.5196)
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SI 2008/794
Regs. 66-68
(b)
as if for “continuing to be” there were substituted “being”.
(3)  Section 12(1) of the Act applies–
(a)
as if for sub-paragraph (a) there were substituted–
“(a) either–
(i) entitled to an employment and support allowance; or
(ii) a person who has made a claim to which section 5 applies; and”;
and
(b)
as if for “continuing to be” there were substituted “being”.
PART 9
AMOUNTS OF ALLOWANCE
CHAPTER 1
Prescribed amounts
Prescribed amounts
67.—(1)  Subject to regulations 68, 69 and 163 (amounts in other cases, special
cases and urgent cases), the amounts prescribed for the purposes of the calculation of
the amount of an income-related allowance under section 4(2)(a) of the Act in relation
to a claimant are such of the following amounts as may apply in the claimant’s case–
(a)
an amount in respect of the claimant or, if the claimant is a member of a
couple, an amount in respect of both of them determined in accordance with
paragraph 1(1), (2) or (3) of Schedule 4 (amounts) as the case may be;
(b)
the amount of any premiums which may be applicable to the claimant
determined in accordance with Parts 2 and 3 of that Schedule (premiums);
(c)
any amounts determined in accordance with Schedule 6 (housing costs)
which may be applicable to the claimant in respect of mortgage interest
repayments or such other housing costs as are prescribed in that Schedule.
(2)  Subject to regulation 69 (special cases) the amount prescribed for the purposes
of the calculation of the amount of a claimant’s contributory allowance under section
2(1)(a) of the Act is the amount determined in accordance with paragraph 1(1) of
Schedule 4 as may apply in the claimant’s case.
(3)  Subject to regulation 69, the amount of the work-related activity component
and the support component are prescribed in Part 4 of Schedule 4.
Polygamous marriages
68.—(1)  Subject to regulation 69 and 163 (special cases and urgent cases), where
a claimant is a husband or wife by virtue of a polygamous marriage the amounts
prescribed for the purposes of the calculation of the amount of an income-related
allowance under section 4(2)(a) of the Act are such of the following amounts as may
apply in the claimant’s case–
(a)
an amount in respect of the claimant and the other party to the marriage
determined in accordance with paragraph 1(3) of Schedule 4;
(b)
an amount equal to the difference between the amounts specified in
paragraph 1(3)(a) (couple where both aged 18 and over) and 1(1)(b) (single
claimant aged 25 and over) of Schedule 4 in respect of each spouse additional
to the marriage;
(c)
the amount of any premiums which are applicable to the claimant determined
in accordance with Parts 2 and 3 of that Schedule (premiums);
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 68-69
(d)
any amounts determined in accordance with Schedule 6 (housing costs)
which may be applicable to the claimant in respect of mortgage interest
payments or such other housing costs as are prescribed in that Schedule.
(2) In the case of a partner who is aged less than 18, the amount which applies in
respect of that partner is nil unless–
(a)
that partner is treated as responsible for a child; or
(b)
that partner is a person who–
(i) had that partner not been a member of a polygamous marriage would
have qualified for an income-related allowance; or
(ii) satisfies the requirements of section 3(1)(f)(iii) of the Jobseekers Act
(prescribed circumstances for persons aged 16 but less than 18); or
(iii) is the subject of a direction under section 16(a) of that Act (persons
under 18: severe hardship).
Special cases
69.—(1) In the case of a claimant to whom any paragraph in column (1) of Schedule
5 applies (amounts in special cases), the amount in respect of the claimant is to be the
amount in the corresponding paragraph in column (2) of that Schedule.
(2) In Schedule 5–
“partner of a person subject to immigration control” means a person–
(a) who is not subject to immigration control within the meaning of section
115(9) of the Immigration and Asylum Act; or
(b) to whom section 115 of that Act does not apply by virtue of regulation 2
of the Social Security (Immig ration and Asylum) Consequential
Amendments Regulations 2000(b); and
(c) who is a member of a couple and the member’s partner is subject to
immigration control within the meaning of section 115(9) of that Act and
section 115 of that Act applies to the partner for the purposes of exclusion
from entitlement to an income-related allowance;
“patient” means a person (other than a prisoner) who is regarded as receiving free
in-patient treatment within the meaning of regulation 2(4) and (5) of the Social
Security (Hospital In-Patients) Regulations 2005(c);
“person from abroad” has the meaning given in regulation 70;
“person in hardship” means a person who satisfies regulation 158 but only for a
period not exceeding 6 weeks;
“prisoner” means a person who–
(a) is detained in custody pending trial or sentence on conviction or under a
sentence imposed by a court; or
(b) is on temporary release in accordance with the provisions of the Prison
Act 1952(d) or the Prisons (Scotland) Act 1989(e),
other than a person who is detained in hospital under the provisions of the Mental
Health Act  1983(f) or, in Scotland, under the provisions of the Mental Health
(Care and Treatment) (Scotland) Act 2003(g) or the Criminal Procedure (Scotland)
Act 1995(h).
( a ) Section 16 was amended by paragraph 139(1) and (2) of Schedule 7 to the Social Security
Act 1998 (c. 14).
( b ) S.I. 2000/636.
( c ) S.I. 2005/3360.
( d ) 1952 c. 52.
( e ) 1989 c. 45.
( f ) 1983 c. 20.
( g ) 2003 asp. 13.
(h) 1995 c. 46.
13.5198
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 70
Special cases: supplemental – persons from abroad
70.—(1)  “Person from abroad” means, subject to the following provisions of this
regulation, a claimant who is not habitually resident in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland.
(2) A claimant must not be treated as habitually resident in the United Kingdom,
the Channel Islands, the Isle of Man or the Republic of Ireland unless the claimant has
a right to reside in (as the case may be) the United Kingdom, the Channel Islands, the
Isle of Man or the Republic of Ireland other than a right to reside which falls within
paragraph (3).
(3) A right to reside falls within this paragraph if it is one which exists by virtue of,
or in accordance with, one or more of the following–
(a)
regulation 13 of the Immigration (European Economic Area) Regulations
2006(a);
(b)
regulation 14 of those Regulations, but only in a case where the right exists
under that regulation because the claimant is–
(i) a jobseeker for the purpose of the definition of “qualified person” in
regulation 6(1) of those Regulations; or
(ii) a  family member (within the meaning of regulation 7 of those
Regulations) of such a jobseeker;
(c)
Article 6 of Council Directive No. 2004/38/EC(b); or
(d)
Article 39 of the Treaty establishing the European Community (in a case
where the claimant is a person seeking work in the United Kingdom, the
Channel Islands, the Isle of Man or the Republic of Ireland).
(4) A claimant is not a person from abroad if the claimant is–
(a)
a worker for the purposes of Council Directive No. 2004/38/EC;
(b)
a self-employed person for the purposes of that Directive;
(c)
a person who retains a status referred to in sub-paragraph (a) or (b) pursuant
to Article 7(3) of that Directive;
(d)
a person who is a family member of a person referred to in sub-paragraph (a),
(b) or (c) within the meaning of Article 2 of that Directive;
(e)
a person who has a right to reside permanently in the United Kingdom by
virtue of Article 17 of that Directive;
(f)
a person who is treated as a worker for the purpose of the definition of
“qualified person” in regulation 6(1) of the Immigration (European Economic
Area) Regulations 2006 pursuant to–
(i) regulation 5 of the Accession (Immigration and Worker Registration)
Regulations 2004(c) (application of the 2006 Regulations in relation to
a national of the Czech Republic, Estonia, Latvia, Lithuania, Hungary,
Poland, Slovenia or the Slovak Republic who is an “accession State
worker requiring registration”); or
(ii) regulation 6 of the Accession (Immigration and Worker Authorisation)
Regulations 2006(d) (right of residence of a Bulgarian or Romanian who
is an “accession State national subject to worker authorisation”);
(g)
a refugee within the definition in Article 1 of the Convention relating to the
Status of Refugees done at Geneva on 28th July 1951(e), as extended by
Article 1(2) of the Protocol relating to the Status of Refugees done at New
York on 31st January 1967(f);
( a ) S.I. 2006/1003.
( b ) OJL 158, 30.4.04, p. 77.
( c ) S.I. 2004/1219.
( d ) S.I. 2006/3317.
( e ) Cmnd. 9171.
( f ) Cmnd. 3906.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 70-71
(h)
a person who has exceptional leave to enter or remain in the United Kingdom
granted outside the rules made under section 3(2) of the Immigration Act
1971(a);
(i)
a person who has humanitarian protection granted under those rules;
(j)
a person who is not a person subject to immigration control within the
meaning of section 115(9) of the Immigration and Asylum Act and who is in
the United Kingdom as a result of deportation, expulsion or other removal
by compulsion of law from another country to the United Kingdom; or
(k)
a person in Great Britain who left the territory of Montserrat after 1st
November 1995 because of the effect on that territory of a volcanic eruption.
Definition of non-dependant
71.—(1) In 
these Regulations, “non-dependant” means any person, except someone
to whom paragraph (2), (3) or (4) applies, who normally resides with a claimant or with
whom a claimant normally resides.
(2)  This paragraph applies to–
(a)
any member of the claimant’s family;
(b)
a child or young person who is living with the claimant but who is not a
member of the claimant’s household;
(c)
a person who lives with the claimant in order to care for the claimant or for
the claimant’s partner and who is engaged for that purpose by a charitable or
voluntary organisation which makes a charge to the claimant or the
claimant’s partner for the care provided by that person;
(d)
the partner of a person to whom sub-paragraph (c) applies.
(3)  This paragraph applies to a person, other than a close relative of the claimant or
the claimant’s partner–
(a)
who is liable to make payments on a commercial basis to the claimant or the
claimant’s partner in respect of the person’s occupation of the claimant’s
dwelling;
(b)
to whom the claimant or the claimant’s partner is liable to make payments
on a commercial basis in respect of the claimant’s occupation of that person’s
dwelling;
(c)
who is a member of the household of a person to whom sub-paragraph (a) or
(b) applies.
(4)  Subject to paragraph (5), this paragraph applies to–
(a)
a person who jointly occupies the claimant’s dwelling and who is either–
(i) a co-owner of that dwelling with the claimant or the claimant’s partner
(whether or not there are other co-owners); or
(ii) jointly liable with the claimant or the claimant’s partner to make payments
to a landlord in respect of the person’s occupation of that dwelling;
(b)
a partner of a person to whom sub-paragraph (a) applies.
(5)  Where a person is a close relative of the claimant or the claimant’s partner,
paragraph (4) applies to that person only if the claimant’s, or the claimant’s partner’s,
co-ownership, or joint liability to make payments to a landlord in respect of occupation
of the dwelling arose either before 11th April 1988 or, if later, on or before the date on
which the claimant or the claimant’s partner first occupied the dwelling in question.
(6)  For the purposes of this regulation a person resides with another only if they
share any accommodation except a bathroom, a lavatory or a communal area but not if
each person is separately liable to make payments in respect of occupation of the
dwelling to the landlord.
( a ) 1971 c. 77.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 71-74
(7) In this regulation “communal area” means any area (other than rooms) of common
access (including halls and passageways) and rooms of common use in sheltered
accommodation.
CHAPTER 2
Deductions from the contributory allowance
Permanent health insurance
72.—(1) For the purposes of sections 2(1)(c) and 3 of the Act (deductions from
contributory allowance) pension payment is to include a permanent health insurance
payment.
(2) In this regulation “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.
̈1Financial Assistance Scheme
1Reg. 72A inserted &
words substituted in reg.
72A.—(1) For the purposes of sections 2(1)(c) and 3 of the Act (deductions from
74(1)(a) by reg. 7(1) &
contributory allowance) pension payment is to include a Financial Assistance Scheme
(2) of S.I. 2008/2428 as
payment.
f r o m   2 7 . 1 0 . 0 8 .
(2) In this regulation “Financial Assistance Scheme payment” means a payment
made under the Financial Assistance Scheme Regulations 2005(a).̇
Councillor’s allowance
73.  For the purposes of section 3(1)(c) of the Act–
(a)
a councillor’s allowance is a payment of a prescribed description; and
(b)
the prescribed bodies carrying out public or local functions are those councils
referred to in the definition of “councillor”.
Deductions for pension payment and PPF payment
74.—(1)  Where–
(a)
̈1a claimanṫ is entitled to a contributory allowance in respect of any period
of a week or part of a week;
(b)
there is–
(i) a pension payment;
(ii) a PPF periodic payment; or
(iii) any combination of the payments specified in paragraphs (i) and (ii),
payable to that person in respect of that period (or a period which forms part of that
period or includes that period or part of it); and
(c)
the amount of the payment, or payments when taken together, exceeds
(i) if the period in question is a week, £85.00; or
(ii) if that period is not a week, such proportion of the amount mentioned in
paragraph (i) as falls to be calculated in accordance with regulation 94(1)
or (6) (calculation of weekly amount of income),
the amount of that allowance is to be reduced by an amount equal to 50% of the
excess.
(2)  For the purposes of this Chapter “payment” means a payment or payments, as
the case may be, referred to in paragraph (1)(b).
( a ) S.I. 2005/1986.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 75-79
Payments treated as not being payments to which section 3 applies
75.  The following payments are to be treated as not being payments to which section
3 applies–
(a)
any pension payment made to a claimant as a beneficiary on the death of a
member of any pension scheme;
(b)
any PPF periodic payment made to a claimant as a beneficiary on the death
of a person entitled to such a payment;
(c)
where a pension scheme is in deficit or has insufficient resources to meet the
full pension payment, the extent of the shortfall;
(d)
any pension payment made under an instrument specified in section 639(2)
of the Income Tax (Earnings and Pensions) Act 2003(a);
(e)
any guaranteed income payment;
(f)
any permanent health insurance payment in respect of which the employee
had contributed to the premium to the extent of more than 50%.
Deductions for councillor’s allowance
76.—(1) Where the net amount of councillor’s allowance to which a claimant is
1Amount in reg. 76(1)
entitled in respect of any week exceeds ̈1£92.00̇, an amount equal to the excess is to
substituted by reg. 7(3)
be deducted from the amount of a contributory allowance to which that person is
of S.I. 2008/2428 as
entitled in respect of that week, and only the balance remaining (if any) is to be
f r o m   2 7 . 1 0 . 0 8 .
payable.
(2) In paragraph (1) “net amount”, in relation to any councillor’s allowance to
which a claimant is entitled, means the aggregate amount of the councillor’s allowance
or allowances, or remuneration to which that claimant is entitled for the week in
question, reduced by the amount of any payment in respect of expenses wholly,
exclusively and necessarily incurred by that claimant, in that week, in the performance
of the duties of a councillor.
Date from which payments are to be taken into account
77.  Where regulations 74(1) and 76(1) apply, deductions must have effect,
calculated where appropriate in accordance with regulation 94(1) or (6), from the first
day of the benefit week in which the payment or councillor’s allowance is paid to a
claimant who is entitled to a contributory allowance in that week.
Date from which a change in the rate of the payment takes effect
78.  Where a payment or councillor’s allowance is already being made to a claimant
and the rate of that payment or that allowance changes, the deduction at the new rate
must take effect, calculated where appropriate in accordance with regulation 94(1) or
(6), from the first day of the benefit week in which the new rate of the payment or
councillor’s allowance is paid.
Calculation of payment made other than weekly
79.—(1) Where the period in respect of which a payment or councillor’s allowance
is paid is otherwise than weekly, an amount calculated or estimated in accordance
with regulation 94(1) or (6) is to be regarded as the weekly amount of that payment or
allowance.
(2) In determining the weekly payment, where two or more payments are payable to
a claimant, each payment is to be calculated separately in accordance with regulation
94(1) or (6) before aggregating the sum of those payments for the purposes of the
reduction of a contributory allowance in accordance with regulation 74.
( a ) 2003 c. 1.
13.5202  (–13.5208)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 80-81
CHAPTER 3
Statutory payments
Effect of statutory maternity pay on a contributory allowance
80.—(1)  This regulation applies where–
(a)
a woman is entitled to statutory maternity pay and, on the day immediately
preceding the first day in the maternity pay period–
(i) is in a period of limited capability for work; and
(ii) satisfies the conditions of entitlement to a contributory allowance in
accordance with section 1(2)(a) of the Act; and
(b)
on any day during the maternity pay period–
(i) she is in a period of limited capability for work; and
(ii) that day is not a day where she is treated as not having limited capability
for work.
(2) Where this regulation applies, notwithstanding section 20(2) of the Act, a woman
who is entitled to statutory maternity pay is to be entitled to a contributory allowance
in respect of any day that falls within the maternity pay period.
(3) Where by virtue of paragraph (2) a woman is entitled to a contributory allowance
for any week (including part of a week), the total amount of such benefit payable to
her for that week is to be reduced by an amount equivalent to any statutory maternity
pay to which she is entitled in accordance with Part 12 of the Contributions and
Benefits Act for the same week (or equivalent part of a week where entitlement to a
contributory allowance is for part of a week) and only the balance, if any, of the
contributory allowance is to be payable to her.
Effect of statutory adoption pay on a contributory allowance
81.—(1)  This regulation applies where–
(a)
a claimant is entitled to statutory adoption pay and, on the day immediately
preceding the first day in the adoption pay period–
(i) is in a period of limited capability for work; and
(ii) satisfies the conditions of entitlement to a contributory allowance in
accordance with section 1(2)(a) of the Act; and
(b)
on any day during the adoption pay period–
(i) that claimant is in a period of limited capability for work; and
(ii) that day is not a day where that claimant is treated as not having limited
capability for work.
(2) Where this regulation applies, notwithstanding section 20(4) of the Act, a
claimant who is entitled to statutory adoption pay is to be entitled to a contributory
allowance in respect of any day that falls within the adoption pay period.
(3) Where by virtue of paragraph (2) a claimant is entitled to a contributory
allowance for any week (including part of a week), the total amount of such benefit
payable to that claimant for that week is to be reduced by an amount equivalent to any
statutory adoption pay to which that claimant is entitled in accordance with Part
12ZB of the Contributions and Benefits Act(a) for the same week (or equivalent part of
a week where entitlement to a contributory allowance is for part of a week) and only
the balance, if any, of the contributory allowance is to be payable to that claimant.
( a ) Part 12ZB was inserted by section 4 of the Employment Act 2002 (c. 22) and amended by
the Employment Equality (Age) Regulations 2006 (S.I. 2006/1031), regulation 49(1) and
paragraph 12 of Schedule 8.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 82-83
Effect of additional statutory paternity pay on a contributory allowance
82.—(1)  This regulation applies where–
(a)
a claimant is entitled to additional statutory paternity pay and, on the day
immediately preceding the first day in the additional paternity pay period–
(i) is in a period of limited capability for work; and
(ii) satisfies the conditions of entitlement to a contributory allowance in
accordance with section 1(2)(a) of the Act; and
(b)
on any day during the additional statutory paternity pay period–
(i) that claimant is in a period of limited capability for work; and
(ii) that day is not a day where that claimant is treated as not having limited
capability for work.
(2) Where this regulation applies, notwithstanding section 20(6) of the Act, a
claimant who is entitled to additional statutory paternity pay is to be entitled to a
contributory allowance in respect of any day that falls within the additional paternity
pay period.
(3)  Where by virtue of paragraph (2) a person is entitled to a contributory allowance
for any week (including part of a week), the total amount of such benefit payable to
that claimant for that week is to be reduced by an amount equivalent to any additional
statutory paternity pay to which that claimant is entitled in accordance with Part
12ZA of the Contributions and Benefits Act(a) for the same week (or equivalent part of
a week where entitlement to a contributory allowance is for part of a week) and only
the balance, if any, of the contributory allowance is to be payable to that claimant.
PART 10
INCOME AND  CAPITAL
CHAPTER 1
General
Calculation of income and capital of members of claimant’s family and of a
polygamous marriage
83.—(1)  Subject to paragraph (4), the income and capital of a claimant’s partner
which by virtue of paragraph 6(2) of Schedule 1 to the Act is to be treated as income
and capital of the claimant, is to be calculated in accordance with the following
provisions of this Part in like manner as for the claimant; and any reference to the
“claimant” is, except where the context otherwise requires, to be construed, for the
purposes of this Part, as if it were a reference to the claimant’s partner.
(2)  Subject to the following provisions of this Part, the income paid to, or in respect
of, and capital of, a child or young person who is a member of the claimant’s family is
not to be treated as the income or capital of the claimant.
(3)  Subject to paragraph (5), where a claimant or the partner of a claimant is married
polygamously to two or more members of the claimant’s household–
(a)
the claimant is to be treated as possessing capital and income belonging to
each such member; and
(b)
the income and capital of that member is to be calculated in accordance with
the following provisions of this Part in like manner as for the claimant.
( a ) Part 12ZA was inserted by section 2 of the Employment Act 2002 and amended by the Work
and Families Act 2006 (c. 18), sections 6 to 10 and the Employment Equality (Age)
Regulations 2006, regulation 49(1) and paragraph 11 of Schedule 8.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 83-90
(4)  Where at least one member of a couple is aged less than 18 and the applicable
amount of the couple falls to be determined under paragraph 1(3)(e), (f), (g), (h) or (i)
of Schedule 4 (amounts), the income of the claimant’s partner is not to be treated as the
income of the claimant to the extent that–
(a)
in the case of a couple where both members are aged less than 18, the amount
specified in paragraph 1(3)(c) of that Schedule exceeds the amount specified
in paragraph 1(3)(i) of that Schedule; and
(b)
in the case of a couple where only one member is aged less than 18, the
amount specified in paragraph 1(3)(a) of that Schedule exceeds the amount
which is specified in paragraph 1(3)(h) of that Schedule.
(5)  Where a member of a polygamous marriage is a partner aged less than 18 and the
amount which applies in respect of that partner under regulation 68(2) (polygamous
marriages) is nil, the claimant is not to be treated as possessing the income of that
partner to the extent that an amount in respect of that partner would have been included
in the applicable amount if the partner had fallen within the circumstances set out in
regulation 68(2)(a) or (b).
Income of participants in the self-employment route
84.  Chapters 2, 3, 4, 6, 8 and 9 of this Part and regulations 132 to 137, 142 and 143
do not apply to any income which is to be calculated in accordance with Chapter 5 of
this Part (participants in the self-employment route).
̈1Child maintenance  oṙ liable  relative payments
1Words inserted in
heading to reg. 85,
85.  Regulations 91 to 109, 111 to 117 and Chapter 10 of this Part do not apply to
substituted in 85 & reg.
any payment which is to be calculated in accordance with Chapter 8 of this Part
86 omitted by reg.
(̈1child maintenance and liable relative paymentṡ).
20(2)(a), (3) & (4) of
S.I. 2008/2428 as from
86. ̈1̇
2 7 . 1 0 . 0 8 .
Calculation of income and capital of students
87.  The provisions of Chapters 2 to 7 of this Part (income and capital) are to have
effect in relation to students and their partners subject to the modifications set out in
Chapter 10 of this Part (students).
Calculation of income which consists of earnings of participants in exempt work
88.  Notwithstanding the other provisions of this Part, regulations 91(2), 92 to 99
and 108(3) and (4) and Schedule 7 (sums to be disregarded in the calculation of
earnings) are to apply to any income which consists of earnings which is to be
calculated for the purposes of regulations 45(2) to (4) (exempt work – earnings limits).
Calculation of income where pension payments, PPF periodic payments or
councillor’s allowance payable
89.  Notwithstanding the other provisions of this Part, regulation 94(1) and (6) is to
apply for the purposes of calculating the amount of any pension payments, PPF periodic
payments or councillor’s allowance to which Chapter 2 of Part 9 (deductions from the
contributory allowance) applies.
CHAPTER 2
Income
Calculation of income
90.—(1) For 
the purposes of paragraph 6(1) of Schedule 1 to the Act (conditions of
entitlement to an income-related allowance), the income of a claimant is to be calculated
on a weekly basis–
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 90-91
(a)
by determining in accordance with this Part, other than Chapter 7, the weekly
amount of the claimant’s income; and
(b)
by adding to that amount the weekly income calculated under regulation
118 (calculation of tariff income from capital).
(2)  For the purposes of paragraph (1) “income” includes capital treated as income
under regulation 105 (capital treated as income) and income which a claimant is
treated as possessing under regulations 106 to 109 (notional income).
(3) For the purposes of paragraph 10 of Schedule 2 to the Act (effect of work), the
income which consists of earnings of a claimant is to be calculated on a weekly basis
by determining the weekly amount of those earnings in accordance with regulations
91(2), 92 to 99 and 108(3) and (4) and Schedule 7.
(4) For the purposes of paragraph (3), “income which consists of earnings” includes
income which a claimant is treated as possessing under regulation 108(3) and (4).
(5) For the purposes of pension payments, PPF periodic payments and a councillor’s
allowance to which section 3 of the Act applies, the income other than earnings of a
claimant is to be calculated on a weekly basis by determining in accordance with
regulation 94(1), (2), (5) and (6) the weekly amount of the pension payments, PPF
periodic payment or a councillor’s allowance paid to the claimant.
Calculation of earnings derived from employed earner’s employment and income
other than earnings
91.—(1) Earnings derived from employment as an employed earner and income
which does not consist of earnings are to be taken into account over a period determined
in accordance with the following provisions of this regulation and at a weekly amount
determined in accordance with regulation 94 (calculation of weekly amount of income).
(2)  Subject to the following provisions of this regulation, the period over which a
payment is to be taken into account is to be–
(a)
where the payment is monthly, a period equal to the number of weeks from
the date on which the payment is treated as paid to the date immediately
before the date on which the next monthly payment would have been so
treated as paid whether or not the next monthly payment is actually paid;
(b)
where the payment is in respect of a period which is not monthly, a period
equal to the length of the period for which payment is made;
(c)
in any other case, a period equal to such number of weeks as is equal to the
number obtained (and any fraction is to be treated as a corresponding fraction
of a week) by dividing–
(i) the net earnings; or
(ii) in the case of income which does not consist of earnings, the amount of
that income less any amount paid by way of tax on that income which is
disregarded under paragraph 1 of Schedule 8 (income other than earnings
to be disregarded),
by the amount of an income-related allowance which would be payable had
the payment not been made plus an amount equal to the total of the sums
which would fall to be disregarded from that payment under Schedule 7
(earnings to be disregarded) or, as the case may be, any paragraph of Schedule
8 other than paragraph 1 of that Schedule, as is appropriate in the claimant’s
case,
and that period is to begin on the date on which the payment is treated as paid under
regulation 93 (date on which income is treated as paid).
(3)  The period over which a Career Development Loan, which is paid pursuant to
section 2 of the Employment and Training Act 1973(a), is to be taken into account is
the period of education and training intended to be supported by that loan.
( a ) 1973 c. 50. Section 2 was substituted by the Employment Act 1988 (c. 19), section 25(1)
and amended by the Employment Act 1989 (c. 38), section 29(4) and Part 1 of Schedule 7
and the Trade Union Reform and Employment Rights Act 1993 (c. 19), section 47(1).
13.5212
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 91-92
(4)  Where grant income as defined in Chapter 10 of this Part has been paid to a
claimant who ceases to be a full-time student before the end of the period in respect of
which that income is payable and, as a consequence, the whole or part of that income
falls to be repaid by that claimant, that income is to be taken into account over the
period beginning on the date on which that income is treated as paid under regulation
93 (date on which income is treated as paid) and ending–
(a)
on the date on which repayment is made in full;
(b)
where the grant is paid in instalments, on the day before the next instalment
would have been paid had the claimant remained a full-time student; or
(c)
on the last date of the academic term or vacation during which that claimant
ceased to be a full-time student,
whichever is the earlier.
(5)  Where, but for this paragraph–
(a)
earnings not of the same kind are derived from the same source; and
(b)
the periods in respect of which those earnings would fall to be taken into
account overlap, wholly or partly,
those earnings are to be taken into account over a period equal to the aggregate length
of those periods and that period is to begin with the earliest date on which any part of
those earnings would otherwise be treated as paid under regulation 93.
(6) In a case to which paragraph (5) applies, earnings under regulation 95 (earnings
of employed earners) are to be taken into account in the following order of priority–
(a)
earnings normally derived from the employment;
(b)
any payment to which paragraph (1)(b) or (c) of that regulation applies;
(c)
any payment to which paragraph (1)(j) of that regulation applies;
(d)
any payment to which paragraph (1)(d) of that regulation applies.
(7)  Where earnings to which regulation 95(1)(b) to (d) applies are paid in respect of
part of a day, those earnings are to be taken into account over a period equal to a day.
(8)  Any earnings to which regulation 95(1)(j) applies which are paid in respect of,
or on the termination of, part-time employment, are to be taken into account over a
period equal to one week.
(9) In this regulation “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);
(10) For 
the purposes of this regulation the claimant’s earnings and income which
does not consist of earnings are to be calculated in accordance with Chapters 3 and 6
respectively of this Part.
Calculation of earnings of self-employed earners
92.—(1) Except where paragraph (2) applies, where a claimant’s income consists
of earnings from employment as a self-employed earner the weekly amount of the
claimant’s earnings is to be determined by reference to the claimant’s average weekly
earnings from that employment–
(a)
over a period of one year; or
(b)
where the claimant has recently become engaged in that employment or
there has been a change which is likely to affect the normal pattern of
business, over such other period as may, in any particular case, enable the
weekly amount of the claimant’s earnings to be determined more accurately.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5213

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 92-94
(2) Where the claimant’s earnings consist of–
(a)
royalties; or
(b)
sums paid periodically for or in respect of any copyright
(c)
payments in respect of any book registered under the Public Lending Right
Scheme 1982,
those earnings are to be taken into account over a period equal to such number of
weeks as is equal to the number obtained (and any fraction is to be treated as a
corresponding fraction of a week) by dividing the earnings by the amount of an income-
related allowance which would be payable had the payment not been made plus an
amount equal to the total of the sums which would fall to be disregarded from the
payment under Schedule 7 (sums to be disregarded in the calculation of earnings) as is
appropriate in the claimant’s case.
(3) For the purposes of this regulation the claimant’s earnings are to be calculated
in accordance with Chapter 4 of this Part.
Date on which income is treated as paid
93.—(1) Except where paragraph (2) or (3) applies, a payment of income to which
regulation 91 (calculation of earnings derived from employed earner’s employment
and income other than earnings) applies is to be treated as paid–
(a)
in the case of a payment which is due to be paid before the first benefit week
pursuant to the claim, on the date on which it is due to be paid;
(b)
in any other case, on the first day of the benefit week in which it is due to be
paid or the first succeeding benefit week in which it is practicable to take it
into account.
(2) Employment and support allowance, income support, jobseeker’s allowance,
maternity allowance, short-term or long-term incapacity benefit, or severe disablement
allowance is to be treated as paid on the day of the benefit week in respect of which it
is payable.
(3) Working tax credit or child tax credit is to be treated as paid–
(a)
where the award of that tax credit begins on the first day of a benefit week,
on that day;
(b)
on the first day of the benefit week that follows the date the award begins; or
(c)
on the first day of the first benefit week that follows the date an award of an
income-related allowance begins, if later,
until the last day of the last benefit week that coincides with or immediately follows
the last day for which the award of that tax credit is made.
Calculation of weekly amount of income
94.—(1)  For the purposes of regulation 91 (calculation of earnings derived from
employed earner’s employment and income other than earnings) and Chapter 2 of Part
9 (deductions from contributory allowance), subject to paragraphs (2) to (8), where the
period in respect of which a payment is made–
(a)
does not exceed a week, the weekly amount is to be the amount of that
payment;
(b)
exceeds a week, the weekly amount is to be determined–
(i) in a case where that period is a month, by multiplying the amount of the
payment by 12 and dividing the product by 52;
(ii) in a case where that period is 3 months, by multiplying the amount of the
payment by 4 and dividing the product by 52;
(iii) in a case where that period is a year by dividing the amount of the payment
by 52;
13.5214  (–13.5220)
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The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 94
(iv) in  any other case by multiplying the amount of the payment by 7 and
dividing the product by the number equal to the number of days in the
period in respect of which it is made.
(2) Where a payment for a period not exceeding a week is treated under regulation
93(1)(a) (date on which income is treated as paid) as paid before the first benefit week
and a part is to be taken into account for some days only in that week (the relevant
days), the amount to be taken into account for the relevant days is to be calculated by
multiplying the amount of the payment by the number equal to the number of relevant
days and dividing the product by the number of days in the period in respect of which
it is made.
(3)  Where a payment is in respect of a period equal to or in excess of a week and a
part thereof is to be taken into account for some days only in a benefit week (the
relevant days), the amount to be taken into account for the relevant days is, except
where paragraph (4) applies, to be calculated by multiplying the amount of the payment
by the number equal to the number of relevant days and dividing the product by the
number of days in the period in respect of which it is made.
(4)  In the case of a payment of–
(a)
maternity allowance, short-term or long-term incapacity benefit or severe
disablement allowance, the amount to be taken into account for the relevant
days is to be the amount of benefit payable in respect of those days;
(b)
an employment and support allowance, income support or a jobseeker’s
allowance, the amount to be taken into account for the relevant days is to be
calculated by multiplying the weekly amount of the benefit by the number
of relevant days and dividing the product by 7.
(5)  Except in the case of a payment which it has not been practicable to treat under
regulation 93(1)(b) (date on which income is treated as paid) as paid on the first day of
the benefit week in which it is due to be paid, where a payment of income from a
particular source is or has been paid regularly and that payment falls to be taken into
account in the same benefit week as a payment of the same kind and from the same
source, the amount of that income to be taken into account in any one benefit week is
not to exceed the weekly amount determined under paragraph (1)(a) or (b) of the
payment which under regulation 93(1)(b) is treated as paid first.
(6) Where the amount of the claimant’s income fluctuates and has changed more
than once, or a claimant’s regular pattern of work is such that the claimant does not
work every week, the foregoing paragraphs may be modified so that the weekly amount
of the claimant’s income is determined by reference to the claimant’s average weekly
income–
(a)
if there is a recognisable cycle of work, over the period of one complete
cycle (including, where the cycle involves periods in which the claimant
does no work, those periods but disregarding any other absences);
(b)
in any other case, over a period of 5 weeks or such other period as may, in the
particular case, enable the claimant’s average weekly income to be
determined more accurately.
(7)  Where income is taken into account under paragraph (4) of regulation 91 over
the period specified in that paragraph, the amount of that income to be taken into
account in respect of any week in that period is to be an amount equal to the amount
of that income which would have been taken into account under regulation 132
(calculation of grant income) had the person to whom that income was paid not ceased
to be a full-time student.
(8)  Where any payment of earnings is taken into account under ̈1paragraph (8)̇ of
1Words in reg. 94(8)
regulation 91 (calculation of earnings derived from employed earner’s employment
substituted by reg. 8(1)
and income other than earnings), over the period specified in that paragraph, the
of S.I. 2008/2428 as
f r o m   2 7 . 1 0 . 0 8 .
amount to be taken into account is to be equal to the amount of the payment.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5221

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 95
CHAPTER 3
Employed earners
Earnings of employed earners
1Words in reg. 95(1)
95.—(1) Subject  to  ̈1paragraphs (2) and (3)̇, “earnings” means, in the case of
substituted by reg. 8(2)
employment as an employed earner, any remuneration or profit derived from that
of S.I. 2008/2428 as
employment and includes–
f r o m   2 7 . 1 0 . 0 8 .
(a)
any bonus or commission;
(b)
any payment in lieu of remuneration except any periodic sum paid to a
claimant on account of the termination of the claimant’s employment by
reason of redundancy;
(c)
any payment in lieu of notice;
(d)
any holiday pay except any payable more than 4 weeks after the termination
or interruption of employment;
(e)
any payment by way of a retainer;
(f)
any payment made by the claimant’s employer in respect of expenses not
wholly, exclusively and necessarily incurred in the performance of the duties
of the employment, including any payment made by the claimant’s employer
in respect of–
(i) travelling expenses incurred by the claimant between the claimant’s home
and place of employment;
(ii) expenses incurred by the claimant under arrangements made for the care
of a member of the claimant’s family owing to the claimant’s absence
from home;
(g)
any award of compensation made under section 112(4) or 117(3)(a) of the
Employment Rights Act 1996(a) (the remedies: orders and compensation,
enforcement of order and compensation);
(h)
any payment or remuneration made under sections 28, 34, 64, 68 and 70 of
the Employment Rights Act 1996(b) (right to guarantee payments,
remuneration on suspension on medical or maternity grounds, complaints
to employment tribunals);
(i)
any such sum as is referred to in section 112(3) of the Contributions and
Benefits Act(c) (certain sums to be earnings for social security purposes);
(j)
where a payment of compensation is made in respect of employment which
is part-time employment, the amount of the compensation;
(k)
the amount of any payment by way of a non-cash voucher which has been
taken into account in the computation of a person’s earnings in accordance
with Part 5 of Schedule 3 to the Social Security (Contributions) Regulations
2001(d).
(2)  “Earnings” are not to include–
(a)
subject to paragraph (3), any payment in kind;
(b)
any remuneration paid by or on behalf of an employer to the claimant in
respect of a period throughout which the claimant is on maternity leave,
paternity leave or adoption leave or is absent from work because the claimant
is ill;
( a ) 1996 c. 18.
( b ) Sections 34 and 70 were amended by the Employment Rights (Dispute Resolution) Act 1998
(c. 8), section 1(2)(a) and (b) and section 64 was amended by S.I. 1999/3232, regulation
41(1) and paragraph 2 of Schedule 9.
( c ) Section 112(3) was amended by the Employment Rights Act 1996, paragraph 51(4)(a) to (c)
of Schedule 1.
( d ) S.I. 2001/1004, the relevant amending instruments are S.I. 2001/2412, S.I. 2002/307, S.I.
2003/2958, S.I. 2004/770, S.I. 2005/778, S.I. 2006/883, S.I. 2006/2003 and S.I. 2007/
2091.
13.5222
Supplement No. 86 [March 2009]
The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 95-96
(c)
any payment in respect of expenses wholly, exclusively and necessarily
incurred in the performance of the duties of the employment;
(d)
any occupational pension;
(e)
any lump sum payment made under the Iron and Steel Re-adaptation Benefits
Scheme(a).
(3)  Paragraph (2)(a) is not to apply in respect of any non-cash voucher referred to in
paragraph (1)(k).
(4) In this regulation–
“compensation” means any payment made in respect of, or on the termination of,
employment in a case where a claimant has not received or received only part of a
payment in lieu of notice due or which would have been due to the claimant had
that claimant not waived the right to receive it, other than–
(a)
any payment specified in paragraph (1)(a) to (i);
(b)
any payment specified in paragraph (2)(a) to (e);
(c)
any redundancy payment within the meaning of section 135(1) of the
Employment Rights Act 1996;
(d)
any refund of contributions to which that person was entitled under an
occupational pension scheme; and
(e)
any compensation payable by virtue of section 173 of the Education Reform
Act 1988(b);
“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).
Calculation of net earnings of employed earners
96.—(1)  For the purposes of regulation 91 (calculation of earnings derived from
employed earner’s employment and income other than earnings) the earnings of a
claimant derived from employment as an employed earner to be taken into account,
subject to paragraph (2), are the claimant’s net earnings.
(2)  There is to be disregarded from a claimant’s net earnings, any sum, where
applicable, specified in paragraphs 1 to 12 of Schedule 7 (sums to be disregarded in
the calculation of earnings).
(3)  For the purposes of paragraph (1) net earnings are to be calculated by taking
into account the gross earnings of the claimant from that employment less–
(a)
any amount deducted from those earnings by way of–
(i) income tax;
(ii) primary Class 1 contributions under section 6(1)(a) of the Contributions
and Benefits Act(c);
(b)
one-half of any sum paid by the claimant in respect of a pay period by way
of a contribution towards an occupational or personal pension scheme.
( e ) S.I. 1996/3182.
( b ) 1988 c. 40.
( c ) Section 6 was substituted by the Welfare Reform and Pensions Act 1999 (c. 30), section 73
and paragraph 2 of Schedule 9.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5223

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 97-98
CHAPTER 4
Self-employed earners
Earnings of self-employed earners
97.—(1)  Subject to paragraph (2), “earnings”, in the case of employment as a self-
employed earner, means the gross receipts of the employment and include any
allowance paid under section 2 of the Employment and Training Act 1973(a) or section
2 of the Enterprise and New Towns (Scotland) Act 1990(b) to the claimant for the
purpose of assisting the claimant in carrying on the claimant’s business.
(2) ”Earnings” do not include–
(a)
where a claimant is involved in providing board and lodging accommodation
for which a charge is payable, any payment by way of such a charge;
(b)
any payment to which paragraph 28 or 29 of Schedule 8 refers (payments in
respect of a person accommodated with the claimant under an arrangement
made by a local authority or voluntary organisation and payments made to
the claimant by a health authority, local authority or voluntary organisation
in respect of persons temporarily in the claimant’s care);
(c)
any sports award.
Calculation of net profit of self-employed earners
98.—(1)  For the purposes of regulation 92 (calculation of earnings of self-employed
earners), the earnings of a claimant to be taken into account are to be–
(a)
in the case of a self-employed earner who is engaged in employment on that
self-employed earner’s own account, the net profit derived from that
employment;
(b)
in the case of a self-employed earner whose employment is carried on in
partnership or is that of a share fisherman within the meaning of the Social
Security (Mariners’ Benefits) Regulations 1975(c), that self-employed
earner’s share of the net profit derived from that employment less–
(i) an amount in respect of income tax and of National Insurance
contr ibutions payable under the Contributions and Benefits Act
calculated in accordance with regulation 99 (deduction of tax and
contributions for self-employed earners); and
(ii) one half of any premium paid in the period that is relevant under
regulation 92 (calculation of earnings of self-employed earners) in respect
of a personal pension scheme.
(2)  There is to be disregarded from a claimant’s net profit any sum, where applicable,
specified in paragraphs 1 to 11 of Schedule 7.
(3) For the purposes of paragraph (1)(a) the net profit of the employment, except
where paragraph (9) applies, is to be calculated by taking into account the earnings of
the employment over the period determined under regulation 92 less–
(a)
subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed
in that period for the purposes of that employment;
(b)
an amount in respect of–
(i) income tax; and
(ii) National Insurance contributions payable under the Contributions and
Benefits Act,
calculated in accordance with regulation 99 (deduction of tax and contributions
for self-employed earners); and
( a ) 1973 c. 50.
( b ) 1990 c. 35.
( c ) S.I. 1975/529.
13.5224
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The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 98
(c)
one half of any premium paid in the period that is relevant under regulation
92 in respect of a personal pension scheme.
(4)  For the purposes of paragraph (1)(b), the net profit of the employment is to be
calculated by taking into account the earnings of the employment over the period
determined under regulation 92 less, subject to paragraphs (5) to (7), any expenses
wholly and exclusively defrayed in that period for the purpose of that employment.
(5)  Subject to paragraph (6), a deduction is not to be made under paragraph (3)(a) or
(4) in respect of–
(a)
any capital expenditure;
(b)
the depreciation of any capital asset;
(c)
any sum employed or intended to be employed in the setting up or expansion
of the employment;
(d)
any loss incurred before the beginning of the period determined under
regulation 92 (calculation of earnings of self-employed earners);
(e)
the repayment of capital on any loan taken out for the purposes of the
employment;
(f)
any expenses incurred in providing business entertainment.
(6) A deduction is to be made under paragraph (3)(a) or (4) in respect of the
repayment of capital on any loan used for–
(a)
the replacement in the course of business of equipment or machinery; and
(b)
the repair of an existing business asset except to the extent that any sum is
payable under an insurance policy for its repair.
(7)  The Secretary of State will refuse to make a deduction in respect of any expenses
under paragraph (3)(a) or (4) where the Secretary of State is not satisfied that the
expense has been defrayed or, having regard to the nature of the expense and its
amount, that it has been reasonably incurred.
(8)  For the avoidance of doubt–
(a)
a deduction is not to be made under paragraph (3)(a) or (4) in respect of any
sum unless it has been expended for the purposes of the business;
(b)
a deduction is to be made thereunder in respect of–
(i) the excess of any VAT paid over VAT received in the period determined
under regulation 92;
(ii) any income expended in the repair of an existing asset except to the
extent that any sum is payable under an insurance policy for its repair;
(iii) any payment of interest on a loan taken out for the purposes of the
employment.
(9)  Where a claimant is engaged in employment as a child minder the net profit of
the employment is to be one-third of the earnings of that employment, less–
(a)
an amount in respect of–
(i) income tax; and
(ii) National Insurance contributions payable under the Contributions and
Benefits Act,
calculated in accordance with regulation 99 (deduction of tax and
contributions for self-employed earners); and
(b)
one half of any premium paid in respect of a personal pension scheme.
(10)  Notwithstanding regulation 92 (calculation of earnings of self-employed
earners) and the foregoing paragraphs, the Secretary of State may assess any item of a
claimant’s income or expenditure over a period other than that determined under
regulation 92 as may, in the particular case, enable the weekly amount of that item of
income or expenditure to be determined more accurately.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5225

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 98-99
(11) For the avoidance of doubt where a claimant is engaged in employment as a
self-employed earner and that claimant is also engaged in one or more other
employments as a self-employed or employed earner any loss incurred in any one of
the claimant’s employments is not to be offset against the claimant’s earnings in any
other of the claimant’s employments.
Deduction of tax and contributions for self-employed earners
99.—(1) Subject to paragraph (2), the amount to be deducted in respect of income
tax under regulation 98(1)(b)(i), (3)(b)(i) or (9)(a)(i) (calculation of net profit of self-
employed earners) is to be calculated on the basis of the amount of chargeable income
1Words omitted in reg.
and as if that income were assessable to income tax at the ̈1̇ basic rate of tax less
99(1) & substituted in
only the personal allowance to which the claimant is entitled under sections 35 and
para. (2) by reg. 8(3)(a)
38 to 40 of the Income Tax Act 2007(a) (personal reliefs) as is appropriate to the
& (b) of S.I. 2008/2428
claimant’s circumstances.
as from 27.10.08.
(2) If the period determined under regulation 92 is less than a year the earnings to
which the ̈1basic ratė of tax is to be applied and the amount of the personal reliefs
deductible under paragraph (1) is to be calculated on a pro rata basis.
(3) The amount to be deducted in respect of National Insurance contributions under
regulation 98(1)(b)(i), (3)(b)(ii) or (9)(a)(ii) is to be the total of–
(a)
the amount of Class 2 contributions payable under section 11(1) or, as the
case may be, 11(3) of the Contributions and Benefits Act(b) at the rate
applicable at the date of claim except where the claimant’s chargeable income
is less than the amount specified in section 11(4) of that Act (small earnings
exception) for the tax year in which the date of claim falls; but if the
assessment period is less than a year, the amount specified for that tax year
is to be reduced pro rata; and
(b)
the amount of Class 4 contributions (if any) which would be payable under
section 15 of that Act(c) (Class 4 contributions recoverable under the Income
Tax Acts) at the percentage rate applicable at the date of claim on so much of
the chargeable income as exceeds the lower limit but does not exceed the
upper limit of profits and gains applicable for the tax year in which the date
of claim falls; but if the assessment period is less than a year, those limits are
to be reduced pro rata.
(4) In this regulation “chargeable income” means–
(a)
except where sub-paragraph (b) applies, the earnings derived from the
employment less any expenses deducted under paragraph (3)(a) or, as the
case may be, (4) of regulation 98;
(b)
in the case of employment as a child minder, one-third of the earnings of that
employment.
( a ) 2007 c. 3.
( b ) Section 11 was amended by the Social Security Contributions (Transfer of Functions, etc.)
Act 1999 (c. 2), section 2 and paragraph 12 of Schedule 3 and S.I. 2007/1052, article 2(b).
( c ) Section 15 was amended by the Income Tax (Trading and Other Income) Act 2005 (c. 5),
sections 882(1) and 884 and paragraphs 419 and 420(1), (2)(a), (c) and (d), (3) and (4) of
Schedule 1 and Schedule 3, the National Insurance Contributions Act 2002 (c. 19), section
3(1), the Limited Liability Partnerships Act 2000 (c. 12), section 13 and S.I. 2007/1052,
article 4(a) and (b).
13.5226 (–13.5232)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 100-103
CHAPTER 5
Participants in the self-employment route
Interpretation
100.  In this Chapter “special account” means, where a claimant was carrying on a
commercial activity in respect of which assistance is received under the self-employment
route, the account into which the gross receipts from that activity were payable during
the period in respect of which such assistance was received.
Treatment of gross receipts of participants in the self-employment route
101.  The gross receipts of a commercial activity carried on by a claimant in respect
of which assistance is received under the self-employment route, are to be taken into
account in accordance with the following provisions of this Chapter.
Calculation of income of participants in the self-employment route
102.—(1)  The income of a claimant who has received assistance under the self-
employment route is to be calculated by taking into account the whole of the monies
in the special account at the end of the last day on which such assistance was received
and deducting from those monies–
(a)
an amount in respect of income tax calculated in accordance with regulation
103 (deduction in respect of tax for participants in the self-employment
route); and
(b)
any sum to which paragraph (4) refers.
(2)  Income calculated pursuant to paragraph (1) is to be apportioned equally over
a period which starts on the date the income is treated as paid under paragraph (3) and
is equal in length to the period beginning with the day on which assistance was first
received under the self-employment route and ending on the last day on which such
assistance was received.
(3) Income calculated pursuant to paragraph (1) is to be treated as paid–
(a)
in the case where it is due to be paid before the first benefit week in respect
of which the participant or the participant’s partner first claims an income-
related allowance following the last day on which assistance was received
under the self-employment route, on the day in the week in which it is due to
be paid which corresponds to the first day of the benefit week;
(b)
in any other case, on the first day of the benefit week in which it is due to be
paid.
(4)  This paragraph refers, where applicable in each benefit week in respect of which
income calculated pursuant to paragraph (1) is taken into account pursuant to
paragraphs (2) and (3), to the sums which would have been disregarded under paragraph
7(1) of Schedule 7 had the income been earnings.
Deduction in respect of tax for participants in the self-employment route
103.—(1) The amount to be deducted in respect of income tax under regulation
102(1)(a) (calculation of income of participants in the self-employment route) in respect
of the period determined under regulation 102(2) is to be calculated as if–
(a)
the chargeable income is the only income chargeable to tax;
(b)
the personal allowance applicable to the person receiving assistance under
the self-employment route by virtue of sections 35 and 45 to 55 of the
Income Tax Act 2007 is allowable against that income; and
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 103-104
(c)
the rate at which the chargeable income less the personal allowance is
1Words omitted in reg.
assessable to income tax is the ̈1̇ basic rate of tax.
1 0 3 ( 1 ) ( c )   a n d
substituted in para. (2)
(2)  For the purpose of paragraph (1), the ̈1basic ratė of tax to be applied and the
by reg. 8(4)(a) & (b) of
amount of the personal allowance deductible is, where the period determined under
S.I. 2008/2428 as from
regulation 102(2) is less than a year, to be calculated on a pro rata basis.
2 7 . 1 0 . 0 8 .
(3) In this regulation, “chargeable income” means the monies in the special account
at the end of the last day upon which assistance was received under the self-employment
route.
CHAPTER 6
Other income
Calculation of income other than earnings
104.—(1)  For the purposes of regulation 91 (calculation of earnings derived from
employed earner’s employment and income other than earnings) the income of a
claimant which does not consist of earnings to be taken into account will, subject to
paragraphs (2) to (7), be the claimant’s gross income and any capital treated as income
under regulation 105 (capital treated as income).
(2)  There is to be disregarded from the calculation of a claimant’s gross income
under paragraph (1), any sum, where applicable, specified in Schedule 8.
(3) Where the payment of any benefit under the benefit Acts is subject to any
deduction by way of recovery the amount to be taken into account under paragraph
(1) is to be the gross amount payable.
2Words substituted in
(4)  ̈2Paragraphs (5) and (5A) applẏ applies where–
reg. 104(4) & (5) by
(a)
a relevant payment has been made to a claimant in an academic year; and
reg. 7(2) of S.I. 2008/
1599 as from 27.10.08.
(b)
that claimant abandons, or is dismissed from, that claimant’s course of study
before the payment to the claimant of the final instalment of the relevant
payment.
(5)  ̈2Where a relevant payment is made quarterly, thė amount of a relevant
payment to be taken into account for the assessment period for the purposes of paragraph
(1) in respect of a claimant to whom paragraph (4) applies, is to be calculated by
applying the formula–
A-(BxC)
D
where–
A = the total amount of the relevant payment which that claimant would have
received had that claimant remained a student until the last day of the academic
term in which the person abandoned, or was dismissed from, the course, less any
deduction under regulation 137(6) (treatment of student loans);
B = the number of benefit weeks from the benefit week immediately following
that which includes the first day of that academic year to the benefit week
immediately before that which includes the day on which the claimant abandoned,
or was dismissed from, that claimant’s course;
C = the weekly amount of the relevant payment, before the application of the £10
disregard, which would have been taken into account as income under regulation
137(3) had the claimant not abandoned or been dismissed from, the course and, in
the case of a claimant who was not entitled to an income-related allowance
immediately before that claimant abandoned or was dismissed from the course,
had that claimant, at that time, been entitled to an income-related allowance;
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 104
D = the number of benefit weeks in the assessment period.
̈1(5A) Where a relevant payment is made by two or more instalments in a quarter,
1In Reg. 104, (5A)
the amount of a relevant payment to be taken into account for the assessment period
inserted, words
for the purposes of paragraph 91) in respect of a person to whom paragraph (4) applies,
substituted in (6) and
defn. of “assessment
shall be calculated by applying the formula in paragraph (5) but as if–
period” substituted by
A = the total amount of relevant payments which that person received,. or would
reg. 7(2) of S.I. 2008/
have received, from the first day of the academic year to the day the person
1599 as from 27.10.08.
abandoned the course, or was dismissed from it, less any deduction under
regulation 137(6).̇
(6) ̈1In this regulation
“academic year” and “student loan” have the same meanings as for the purposes
of Chapter 10 of this Part;
̈1“assessment period” means–
(a) in a case where a relevant payment is made quarterly, the period beginning
with the benefit week which includes the day on which the claimant
abandoned, or was dismissed from, the course and ending with the benefit
week which includes the last day of the last quarter for which an instalment
of the relevant payment was payable to that claimant;
(b) in a case where the relevant payment is made by two or more instalments
in a quarter, the period beginning with the benefit week which includes
the day on which the claimant abandoned, or was dismissed from, the
course and ending with the benefit week which includes–
(i) the day immediately before the day on which the next instalment of
the relevant payment would have been due had the payments
continued; or
(ii) the last day of the last quarter for which an instalment of the relevant
payment was payable to that claimant,.
whichever of those dates is earlier;̇
“quarter” for the purposes of the definition of “assessment period” in relation to
an academic year means a period in that year–
(a) beginning on 1st January and ending on 31st March;
(b) beginning on 1st April and ending on 30th June;
(c) beginning on 1st July and ending on 31st August; or
(d) beginning on 1st September and ending on 31st December;
“relevant payment” means either a student loan or an amount intended for the
maintenance of dependants referred to in regulation 132(6) (calculation of grant
income) or both.
(7) In the case of income to which regulation 91(4) (calculation of income of former
students) applies, the amount of income to be taken into account for the purposes of
paragraph (1) is to be the amount of that income calculated in accordance with
regulation 94(7) (calculation of weekly amount of income) and on the basis that none
of that income has been repaid.
(8)  Subject to paragraph (9), for the avoidance of doubt there is to be included as
income to be taken into account under paragraph (1)–
(a)
any payment to which regulation 95(2) or 97(2) (payments not earnings)
applies; or
(b)
in the case of a claimant who is receiving support provided under section 95
or 98 of the Immigration and Asylum Act(a) including support provided by
virtue of regulations made under Schedule 9 to that Act, the amount of such
support provided in respect of essential living needs of the claimant and the
claimant’s partner (if any) as is specified in regulations made under paragraph
3 of Schedule 8 to that Act.
( a ) Sections 95 and 98 and Schedule 9 were amended by the Nationality, Immigration and
Asylum Act 2002 (c. 41), sections 44(1) and (6), 45(4)(a) and (b) and 50(1) and (2).
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 104-106
(9) In the case of a claimant who is the partner of a person subject to immigration
control and whose partner is receiving support provided under section 95 or 98 of the
Immigration and Asylum Act including support provided by virtue of regulations
made under Schedule 9 to that Act, there is not to be included as income to be taken
into account under paragraph (1) the amount of support provided in respect of essential
living needs of the partner of the claimant and the claimant’s dependants (if any) as is
specified in regulations made under paragraph 3 of Schedule 8 to the Immigration and
Asylum Act.
Capital treated as income
105.—(1) Capital which is payable by instalments which are outstanding on–
(a)
the first day in respect of which an income-related allowance is payable or
the date of the determination of the claim, whichever is earlier; or
(b)
in the case of a supersession, the date of that supersession,
is to be treated as income if the aggregate of the instalments outstanding and the
amount of the claimant’s capital otherwise calculated in accordance with Chapter 7 of
this Part exceeds £16,000.
(2)  Any payment received under an annuity is to be treated as income.
(3)  Any earnings to the extent that they are not a payment of income are to be
treated as income.
(4)  Any Career Development Loan paid pursuant to section 2 of the Employment
and Training Act 1973(a) is to be treated as income.
(5)  Where an agreement or court order provides that payments are to be made to the
claimant in consequence of any personal injury to the claimant and that such payments
are to be made, wholly or in part, by way of periodical payments, any such periodical
payments received by the claimant (but not a payment which is treated as capital by
virtue of this Part), are to be treated as income.
Notional income – deprivation and income on application
106.—(1) A claimant is to be treated as possessing income of which the claimant
has deprived himself or herself for the purpose of securing entitlement to an employment
and support allowance or increasing the amount of that allowance, or for the purpose
of securing entitlement to, or increasing the amount of, income support or a jobseeker’s
allowance.
(2)  Except in the case of–
(a)
a discretionary trust;
(b)
a trust derived from a payment made in consequence of a personal injury;
(c)
an employment and support allowance;
(d)
a jobseeker’s allowance;
(e)
working tax credit;
(f)
child tax credit;
(g)
a personal pension scheme, occupational pension scheme or a payment made
by the Board of the Pension Protection Fund where the claimant is aged
under 60;
(h)
any sum to which paragraph 43(2)(a) of Schedule 9 (capital to be disregarded)
applies which is administered in the way referred to in paragraph 43(1)(a) of
that Schedule;
(i)
any sum to which paragraph 44(a) of Schedule 9 refers; or
(j)
rehabilitation allowance made under section 2 of the Employment and
Training Act  1973,
( a ) 1973 c. 50.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 106-107
income which would become available to the claimant upon application being made
but which has not been acquired by the claimant is to be treated as possessed by the
claimant but only from the date on which it could be expected to be acquired were an
application made.
(3) A claimant who has attained the age of 60 is to be treated as possessing–
(a)
the amount of any income from an occupational pension scheme, a personal
pension scheme or the Board of the Pension Protection Fund–
(i) for which no claim has been made; and
(ii) to which the claimant might expect to be entitled if a claim for it were
made;
(b)
income from an occupational pension scheme which the claimant elected to
defer,
but only from the date on which it could be expected to be acquired were an application
for it to be made.
(4) This paragraph applies where a claimant aged not less than 60–
(a)
is entitled to money purchase benefits under an occupational pension scheme
or a personal pension scheme;
(b)
fails to purchase an annuity with the funds available in that scheme; and
(c)
either–
(i) defers in whole or in part the payment of any income which would have
been payable to the claimant by that claimant’s pension fund holder; or
(ii) fails to take any necessary action to secure that the whole of any income
which would be payable to the person by that claimant’s pension fund
holder upon the person applying for it, is so paid; or
(iii) income withdrawal is not available to the claimant under that scheme.
(5)  Where paragraph (4) applies, the amount of any income foregone is to be treated
as possessed by that claimant, but only from the date on which it could be expected to
be acquired were an application for it to be made.
(6)  The amount of any income foregone in a case where paragraph (4)(c)(i) or (ii)
applies is to be the maximum amount of income which may be withdrawn from the
fund and is to be determined by the Secretary of State who will take account of
information provided by the pension fund holder in accordance with regulation 7(5)
of the Social Security (Claims and Payments) Regulations 1987(a).
(7)  The amount of any income foregone in a case where paragraph (4)(c)(iii) applies
is to be the income that the claimant could have received without purchasing an
annuity had the funds held under the relevant occupational or personal pension scheme
been held under a scheme where income withdrawal was available and is to be
determined in the manner specified in paragraph (6).
(8) In paragraph (4), “money purchase benefits” has the meaning it has in section
181 of the Pension Schemes Act 1993(b).
Notional income – income due to be paid or income paid to or in respect of a third
party
107.—(1)  Except in the case of a discretionary trust, or a trust derived from a
payment made in consequence of a personal injury, any income which is due to be
paid to the claimant but–
(a)
has not been paid to the claimant;
( a ) S.I. 1987/1967, relevant amending instruments are S.I. 1999/2572 and S.I. 2003/492.
( b ) 1993 c. 48. The definition in section 181 was amended by S.I. 2005/2053.
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 107
(b)
is not a payment prescribed in regulation 8 or 9 of the Social Security
(Payments on Account, Overpayment and Recovery) Regulations 1988(a)
(duplication and prescribed payments or maintenance payments) and not
made on or before the date prescribed in relation to it,
is, except for any amount to which paragraph (2) applies, to be treated as possessed by
the claimant.
(2)  This paragraph applies to–
(a)
an amount which is due to be paid to the claimant under an occupational
pension scheme but which is not paid because the trustees or managers of
the scheme have suspended or ceased payments due to an insufficiency of
resources;
(b)
any amount by which a payment made to the claimant from an occupational
pension scheme falls short of the payment to which the claimant was due
under the scheme where the shortfall arises because the trustees or managers
of the scheme have insufficient resources available to them to meet in full
the scheme’s liabilities; or
(c)
any earnings which are due to an employed earner on the termination of that
employed earner’s employment by reason of redundancy but which have
not been paid to that employed earner.
(3) Any payment of income, other than a payment of income specified in paragraph
(5), made to a third party in respect of a single claimant or the claimant’s partner (but
not a member of the third party’s family) is to be treated–
(a)
in a case where that payment is derived from–
(i) a payment of any benefit under the benefit Acts;
(ii) a payment from the Armed Forces and Reserve Forces Compensation
Scheme;
(iii) a war disablement pension, war widow’s pension or war widower’s
pension; or
(iv) a  pension payable to a person as a widow, widower or surviving civil
partner under any power of Her Majesty otherwise than under an enactment
to make provision about pensions for or in respect of persons who have
been disabled or have died in consequence of service as members of the
armed forces of the Crown,
as possessed by that single claimant, if it is paid to the claimant or by the
claimant’s partner, if it is paid to the claimant’s partner;
(b)
in a case where that payment is a payment of an occupational pension, a
pension or other periodical payment made under a personal pension scheme
or a payment made by the Board of the Pension Protection Fund, as possessed
by that single claimant or, as the case may be, by the claimant’s partner;
(c)
in any other case, as possessed by that single claimant or the claimant’s
partner to the extent that it is used for the food, ordinary clothing or footwear,
household fuel, rent for which housing benefit is payable, or any housing
costs to the extent that they are met under regulations 67(1)(c) or 68(1)(d)
(housing costs), of that single claimant or, as the case may be, of the claimant’s
partner, or is used for any council tax or water charges for which that claimant
or that partner is liable,
but, except where sub-paragraph (a) applies, this paragraph does not apply to any
payment in kind to the third party.
( a ) S.I. 1988/664, the relevant amending instruments are S.I. 1991/387, S.I. 1991/2742, S.I.
1996/1345, S.I. 1999/2571, S.I. 1999/3178, S.I. 2000/1483, S.I. 2002/3019, S.I. 2003/492,
S.I. 2005/337 and S.I. 2005/3476.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 107
(4) Any payment of income, other than a payment of income specified in paragraph
(5), made to a single claimant or the claimant’s partner in respect of a third party (but
not in respect of another member of the claimant’s family) is to be treated as possessed
by that single claimant or, as the case may be, the claimant’s partner, to the extent that
it is kept or used by that claimant or used by or on behalf of the claimant’s partner but,
except where paragraph (3)(a) applies, this paragraph does not apply to any payment
in kind to the third party.
(5)  Paragraphs (3) and (4) do not apply in respect of a payment of income made–
(a)
under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the
Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust or
̈1the Independent Living Fund (2006)̇;
1Words in reg. 107(5)(a)
(b)
pursuant to section 19(1)(a) of the Coal Industry Act 1994(a) (concessionary
substituted by reg. 8(5)
of S.I. 2008/2428 as
coal); or
f r o m   2 7 . 1 0 . 0 8 .
(c)
pursuant to section 2 of the Employment and Training Act 1973 in respect
of a person’s participation–
(i) in an employment programme specified in regulation 75(1)(a)(ii) of the
Jobseeker’s Allowance Regulations(b);
(ii) in a training scheme specified in regulation 75(1)(b)(ii) of those
Regulations;
( a ) 1994 c. 27.
( b ) The relevant amending instrument is S.I. 2002/2314.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 107-108
(iii) in the Intensive Activity Period specified in regulation 75(1)(a)(iv) of
those Regulations(a);
(iv) in a qualifying course within the meaning specified in regulation 17A(7)
of those Regulations(b); or
(d)
under an occupational pension scheme, in respect of a pension or other
periodical payment made under a personal pension scheme or a payment
made by the Board of the Pension Protection Fund where–
(i) a bankruptcy order has been made in respect of the person in respect of
whom the payment has been made or, in Scotland, the estate of that
person is subject to sequestration or a judicial factor has been appointed
on that person’s estate under section 41 of the Solicitors (Scotland) Act
1980(c);
(ii) the  payment is made to the trustee in bankruptcy or any other person
acting on behalf of the creditors; and
(iii) the person referred to in paragraph (i) and that person’s partner (if any)
does not possess, or is not treated as possessing, any other income apart
from that payment.
(6) Where the claimant resides in a care home, an Abbeyfield Home or an
independent hospital, or is temporarily absent from such a home or hospital, any
payment made by a person other than the claimant or a member of the claimant’s
family in respect of some or all of the cost of maintaining the claimant or the claimant’s
partner in that home or hospital is to be treated as possessed by the claimant or the
claimant’s partner.
(7) In paragraph (2)(a) and (b) “resources” has the same meaning as in section
181(1) of the Pension Schemes Act 1993.
Notional income – other income
108.—(1)  Where a claimant’s earnings are not ascertainable at the time of the
determination of the claim or of any revision or supersession the Secretary of State
will treat the claimant as possessing such earnings as is reasonable in the circumstances
of the case having regard to the number of hours worked and the earnings paid for
comparable employment in the area.
(2)  Where the amount of a subsistence allowance paid to a claimant in a benefit
week is less than the amount of income-based jobseeker’s allowance that claimant
would have received in that benefit week had it been payable to the claimant, less
50p, the claimant is to be treated as possessing the amount which is equal to the
amount of income-based jobseeker’s allowance which the claimant would have
received in that week, less 50p.
(3)  Subject to paragraph (4), where–
(a)
a claimant performs a service for another person; and
(b)
that person makes no payment of earnings or pays less than that paid for a
comparable employment in the area,
the Secretary of State is to treat the claimant as possessing such earnings (if any) as is
reasonable for that employment unless the claimant satisfies the Secretary of State
that the means of that person are insufficient for the person to pay, or to pay more, for
the service.
(4)  Paragraph (3) will not apply–
(a)
to a claimant who is engaged by a charitable or voluntary organisation or
who is a volunteer if the Secretary of State is satisfied in any of those cases
that it is reasonable for the claimant to provide the service free of charge;
( a ) The relevant amending instruments are S.I. 2001/1029 and S.I. 2007/1316.
( b ) Regulation 17A was inserted by S.I. 1998/1274, regulation 4.
( c ) 1980 c. 46.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 108-109
(b)
in a case where the service is performed in connection with–
(i) the claimant’s participation in an employment or training programme in
accordance with regulation 19(1)(q) of the Jobseeker’s Allowance
Regulations, other than where the service is performed in connection
with the claimant’s participation in the Intensive Activity Period specified
in regulation 75(1)(a)(iv) of those Regulations(a); or
(ii) the claimant’s or the claimant’s partner’s participation in an employment
or training programme as defined in regulation 19(3) of those Regulations
for which a training allowance is not payable or, where such an allowance
is payable, it is payable for the sole purpose of reimbursement of
travelling or meal expenses to the claimant or the claimant’s partner
participating in that programme;
(c)
to a claimant who is engaged in work experience whilst participating in–
(i) the New Deal for Lone Parents; or
(ii) a scheme which has been approved by the Secretary of State as supporting
the objectives of the New Deal for Lone Parents; or
(d)
to a claimant who is participating in a work placement approved in writing
by the Secretary of State before the placement starts;
(e)
in sub-paragraph (d) “work placement” means practical work experience
with an employer, which is neither paid nor undertaken in expectation of
payment.
Notional income – calculation and interpretation
109.—(1)  Where a claimant is treated as possessing any income under regulation
106 or 107 the foregoing provisions of this Part are to apply for the purposes of
calculating the amount of that income as if a payment had actually been made and as
if it were actual income which the claimant does possess.
(2) Where a claimant is treated as possessing any earnings under regulation 108(1)
or (3) the foregoing provisions of this Part are to apply for the purposes of calculating
the amount of those earnings as if a payment had actually been made and as if they
were actual earnings which the claimant does possess except that paragraph (3) of
regulation 96 (calculation of net earnings of employed earners) does not apply and
the claimant’s net earnings are to be calculated by taking into account the earnings
which the claimant is treated as possessing, less–
(a)
where the period over which those earnings are to be taken into account is a
year or more, an amount in respect of income tax equivalent to an amount
1Words in reg. 109(2)(a)
calculated by applying to those earnings the ̈1̇ of tax in the year of
omitted & substituted in
assessment less only the personal allowance to which the claimant is entitled
para. (2)(b) by reg.
under section 257(1) of the Income and Corporation Taxes Act 1988(b)
8(6)(a) & (b) of S.I.
(personal allowance) as is appropriate to the claimant’s circumstances;
2008/2428 as  from
2 7 . 1 0 . 0 8 .
(b)
where if the period over which those earnings are to be taken into account is
less than a year, the earnings to which the ̈1basic ratė of tax is to be
applied and the amount of the personal allowance deductible under this
paragraph is to be calculated on a pro rata basis;
(c)
where the weekly amount of those earnings equals or exceeds the lower
earnings limit, an  amount representing primary Class 1 contributions under
section 6(1)(a) of the Contributions and Benefits Act(c), calculated by
applying to those earnings the initial and main primary percentages in
accordance with section 8(1)(a) and (b) of that Act(d); and
( a ) Regulation 75 was substituted by S.I. 1997/2863.
( b ) 1988 c. 1. Section 257 was substituted by the Finance Act 1988 (c. 39), section 33 and
amended by the Income Tax Act 2007 (c. 3), section 1027 and Schedule 1, Part 1,
paragraphs 1 and 29(1) and (2) and S.I. 2006/3241.
( c ) Section 6 was substituted by the Welfare Reform and Pensions Act 1999 (c. 30), section 73
and paragraph 2 of Schedule 9.
( d ) Section 8 was substituted by the National Insurance Contributions Act 2002 (c. 19), section
1(1).
13.5246
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 109-112
(d)
one-half of any sum payable by the claimant in respect of a pay period by
way of a contribution towards an occupational or personal pension scheme.
CHAPTER 7
CAPITAL
Capital limit
110.  For the purposes of paragraph 6(1)(b) of Schedule 1 to the Act as it applies to
an income-related allowance (no entitlement to benefit if capital exceeds prescribed
amount), the prescribed amount is £16,000.
Calcuclation of capital
111.—(1) For the purposes of ̈1sections 1(2)̇ and 4 of, and Part 2 of Schedule 1
1Words substituted in
to, the Act as it applies to an income-related allowance, the capital of a claimant to be
regs. 111(1) & 112(8)
taken into account is, subject to paragraph (2), to be the whole of the claimant’s
by reg. 8(5) & (7) of
S.I. 2008/2428 as from
capital calculated in accordance with this Part and any income treated as capital under
2 7 . 1 0 . 0 8 .
regulation 112 (income treated as capital).
(2)  There is to be disregarded from the calculation of a claimant’s capital under
paragraph (1) any capital, where applicable, specified in Schedule 9.
Income treated as capital
112.—(1)  Any bounty derived from employment to which regulation 43(1)(e) and
paragraph 12 of Schedule 7 apply and paid at intervals of at least one year is to be
treated as capital.
(2)  Any amount by way of a refund of income tax paid in respect of, or deducted
from, profits or income chargeable to tax under the provisions in Part 2 of the Income
Tax (Trading and Other Income) Act 2005(a) or Part 2 of the Income Tax (Earnings and
Pensions) Act 2003(b) is to be treated as capital.
(3)  Any holiday pay which is not earnings under regulation 95(1)(d) (earnings of
employed earners) is to be treated as capital.
(4)  Except any income derived from capital disregarded under paragraph 1, 2, 4 to
8, 10, 16, 43 or 44 of Schedule 9, any income derived from capital is to be treated as
capital but only from the date it is normally due to be credited to the claimant’s
account.
(5) In the case of employment as an employed earner, any advance of earnings or
any loan made by the claimant’s employer is to be treated as capital.
(6) Any payment under section 30 of the Prison Act 1952(c) (payments for
discharged prisoners) or allowance under section 17 of the Prisons (Scotland) Act
1989(d) (allowances to prisoners on discharge) is to be treated as capital.
(7)  Any charitable or voluntary payment which is not made or not due to be made
at regular intervals, other than one to which paragraph (8) applies, is to be treated as
capital.
(8)  This paragraph applies to a payment which is made under the Macfarlane Trust,
the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2)
Trust, the Fund, the Eileen Trust or the ̈1Independent Living Fund (2006)̇.
( a ) 2005 c. 5.
( b ) 2003 c. 1.
( c ) 1952 c. 52. Section 30 was substituted by the Criminal Justice Act 1967 (c. 80), section
66(3). Back [146]
( d ) 1989 c. 45.
Supplement No. 86 [March 2009]
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13.5247

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 112-115
(9)  Any arrears of subsistence allowance which are paid to a claimant as a lump sum
are to be treated as capital.
Calculation of capital in the United Kingdom
113.  Capital which a claimant possesses in the United Kingdom is to be calculated
at its current market or surrender value less–
(a)
where there would be expenses attributable to sale, 10%; and
(b)
the amount of any incumbrance secured on it.
Calculation of capital outside the United Kingdom
114.  Capital which a claimant possesses in a country outside the United Kingdom
is to be calculated–
(a)
in a case in which there is no prohibition in that country against the transfer
to the United Kingdom of an amount equal to its current market or surrender
value in that country, at that value;
(b)
in a case where there is such a prohibition, at the price which it would realise
if sold in the United Kingdom to a willing buyer,
less, where there would be expenses attributable to sale, 10% and the amount of any
incumbrance secured on it.
Notional capital
115.—(1) A claimant is to be treated as possessing capital of which the claimant
has deprived himself or herself for the purpose of securing entitlement to an employment
and support allowance or increasing the amount of that allowance, or for the purpose
of securing entitlement to, or increasing the amount of, income support or a jobseeker’s
allowance except–
(a)
where that capital is derived from a payment made in consequence of any
personal injury and is placed on trust for the benefit of the claimant;
(b)
to the extent that the capital which the claimant is treated as possessing is
reduced in accordance with regulation 116 (diminishing notional capital
rule);
(c)
any sum to which paragraph 43(2)(a) of Schedule 9 (capital to be disregarded)
applies which is administered in the way referred to in paragraph 43(1)(a);
or
(d)
any sum to which paragraph 44(a) of Schedule 9 refers.
(2)  Except in the case of–
(a)
a discretionary trust;
(b)
a trust derived from a payment made in consequence of a personal injury;
(c)
any loan which would be obtainable only if secured against capital
disregarded under Schedule 9;
(d)
a personal pension scheme;
(e)
an occupational pension scheme or a payment made by the Board of the
Pension Protection Fund where the claimant is aged under 60; or
(f)
any sum to which paragraph 43(2)(a) of Schedule 9 (capital to be disregarded)
applies which is administered in a way referred to in paragraph 43(1)(a); or
(g)
any sum to which paragraph 44(a) of Schedule 9 refers,
any capital which would become available to the claimant upon application being
made but which has not been acquired by the claimant is to be treated as possessed by
the claimant but only from the date on which it could be expected to be acquired were
an application made.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 115
(3) Any payment of capital, other than a payment of capital specified in paragraph
(5), made to a third party in respect of a single claimant or the claimant’s partner (but
not a member of the third party’s family) is to be treated–
(a)
in a case where that payment is derived from–
(i) a payment of any benefit under the benefit Acts;
(ii) a payment from the Armed Forces and Reserve Forces Compensation
Scheme;
(iii) a war disablement pension, war widow’s pension or war widower’s
pension; or
(iv) a  pension payable to a person as a widow, widower or surviving civil
partner under any power of Her Majesty otherwise than under an enactment
to make provision about pensions for or in respect of persons who have
been disabled or who have died in consequence of service as members of
the armed forces of the Crown,
as possessed by that single claimant, if it is paid to that claimant, or by the
claimant’s partner, if it is paid to that partner;
(b)
in a case where that payment is a payment of an occupational pension, a
pension or other periodical payment made under a personal pension scheme
or a payment made by the Board of the Pension Protection Fund, as possessed
by that single claimant or, as the case may be, by the claimant’s partner;
(c)
in any other case, as possessed by that single claimant or the claimant’s
partner to the extent that it is used for the food, ordinary clothing or footwear,
household fuel, rent for which housing benefit is payable or any housing
costs to the extent that they are met under regulation 67(1)(c) and 68(1)(d)
(housing costs) of that single claimant or, as the case may be, of the claimant’s
partner, or is used for any council tax or water charges for which that claimant
or partner is liable.
(4)  Any payment of capital, other than a payment of capital specified in paragraph
(5) made to a single claimant or the claimant’s partner in respect of a third party (but
not in respect of another member of the claimant’s family) is to be treated as possessed
by that single claimant or, as the case may be, the claimant’s partner, to the extent that
it is kept or used by that claimant or used by or on behalf of the claimant’s partner.
(5) Paragraphs (3) and (4) will not apply in respect of a payment of capital made–
(a)
under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the
Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust, ̈1,
1Words substituted in
the Independent Living Fund (2006)̇, the Skipton Fund or the London
reg. 115(5)(a) by reg.
Bombings Relief Charitable Fund;
8(8) of S.I. 2008/2428
as from 27.10.08.
(b)
pursuant to section 2 of the Employment and Training Act 1973 in respect
of a claimant’s participation–
(i) in an employment programme specified in regulation 75(1)(a)(ii) of the
Jobseeker’s Allowance  Regulations;
(ii) in a training scheme specified in regulation 75(1)(b)(ii) of those
Regulations; or
(iii) in the Intensive Activity Period specified in regulation 75(1)(a)(iv) of
those Regulations; or
(iv) in a qualifying course within the meaning specified in regulation 17A(7)
of those Regulations;
(c)
under an occupational pension scheme, in respect of a pension or other
periodical payment made under a personal pension scheme or a payment
made by the Board of the Pension Protection Fund where–
(i) a bankruptcy order has been made in respect of the person in respect of
whom the payment has been made or, in Scotland, the estate of that
person is subject to sequestration or a judicial factor has been appointed
on that person’s estate under section 41 of the Solicitors (Scotland) Act
1980;
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The Law Relating to Social Security
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 115-116
(ii) the  payment is made to the trustee in bankruptcy or any other person
acting on behalf of the creditors; and
(iii) the person referred to in paragraph (i) and that person’s partner (if any)
does not possess, or is not treated as possessing, any other income apart
from that payment.
(6)  Where a claimant stands in relation to a company in a position analogous to
that of a sole owner or partner in the business of that company, the claimant is to be
treated as if that claimant were such sole owner or partner and in such a case–
(a)
the value of the claimant’s holding in that company, notwithstanding
regulation 111 (calculation of capital), is to be disregarded; and
(b)
the claimant will, subject to paragraph (7), be treated as possessing an amount
of capital equal to the value or, as the case may be, the claimant’s share of
the value of the capital of that company and the foregoing provisions of this
Chapter are to apply for the purposes of calculating that amount as if it were
actual capital which the claimant does possess.
(7) For so long as the claimant undertakes activities in the course of the business of
the company, the amount which the claimant is treated as possessing under paragraph
(6) is to be disregarded.
(8)  Where a claimant is treated as possessing capital under any of paragraphs (1) to
(6), the foregoing provisions of this Chapter are to apply for the purposes of calculating
its amount as if it were actual capital which the claimant does possess.
(9)  For the avoidance of doubt a claimant is to be treated as possessing capital
under paragraph (1) only if the capital of which the claimant has deprived himself or
herself is actual capital.
Diminishing notional capital rule
116.—(1)  Where a claimant is treated as possessing capital under regulation 115(1)
(notional capital), the amount which the claimant is treated as possessing–
(a)
in the case of a week that is subsequent to–
(i) the relevant week in respect of which the conditions set out in paragraph
(2) are satisfied; or
(ii) a  week which follows that relevant week and which satisfies those
conditions,
is to be reduced by an amount determined under paragraph (2);
(b)
in the case of a week in respect of which paragraph (1)(a) does not apply but
where–
(i) that week is a week subsequent to the relevant week; and
(ii) that relevant week is a week in which the condition in paragraph (3) is
satisfied,
is to be reduced by the amount determined under paragraph (3).
(2)  This paragraph applies to a benefit week or part-week where the claimant satisfies
the conditions that–
(a)
the claimant is in receipt of an income-related allowance; and
(b)
but for regulation 115(1), the claimant would have received an additional
amount of an income-related allowance in that benefit week or, as the case
may be, that part-week,
and in such a case, the amount of the reduction for the purposes of paragraph (1)(a) is
to be equal to that additional amount.
(3)  Subject to paragraph (4), for the purposes of paragraph (1)(b) the condition is
that the claimant would have been entitled to an income-related allowance in the
relevant week, but for regulation 115(1), and in such a case the amount of the reduction
is to be equal to the aggregate of–
13.5250  (–13.5256)
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 116
(a)
the amount of an income-related allowance to which the claimant would
have been entitled in the relevant week but for regulation 115(1); and for
the purposes of this sub-paragraph if the relevant week is a part-week that
amount is to be determined by dividing the amount of an income-related
allowance to which the claimant would have been so entitled by the number
equal to the number of days in the part-week and multiplying the quotient
by 7;
(b)
the amount of housing benefit (if any) equal to the difference between the
claimant’s maximum housing benefit and the amount (if any) of housing
benefit which the claimant is awarded in respect of the benefit week, within
the meaning of regulation 2(1) of the Housing Benefit Regulations 2006(a)
(interpretation), which includes the last day of the relevant week;
(c)
the amount of council tax benefit (if any) equal to the difference between
the claimant’s maximum council tax benefit and the amount (if any) of
council tax benefit which the claimant is awarded in respect of the benefit
week which includes the last day of the relevant week, and for this purpose
“benefit week” has the same meaning as in regulation 2(1) of the Council
Tax Benefit Regulations 2006(b) (interpretation).
(4)  The amount determined under paragraph (3) is to be re-determined under that
paragraph if the claimant makes a further claim for an income-related allowance and
the conditions in paragraph (5) are satisfied, and in such a case–
(a)
sub-paragraphs (a) to (c) of paragraph (3) will apply as if for the words
“relevant week” there were substituted the words “relevant subsequent
week”; and
(b)
subject to paragraph (6), the amount as re-determined is to have effect from
the first week following the relevant subsequent week in question.
(5)  The conditions are that–
(a)
a further claim is made 26 or more weeks after–
(i) the date on which the claimant made a claim for an income-related
allowance in respect of which the claimant was first treated as possessing
the capital in question under regulation 115(1);
(ii) in a case where there has been at least one re-determination in accordance
with paragraph (4), the date on which the claimant last made a claim for
an income-related allowance which resulted in the weekly amount being
re-determined; or
(iii) the date on which the claimant last ceased to be in receipt of an income-
related allowance;
whichever last occurred; and
(b)
the claimant would have been entitled to an income-related allowance but
for regulation 115(1).
(6)  The amount as re-determined pursuant to paragraph (4) is not to have effect if it
is less than the amount which applied in that case immediately before the re-
determination and in such a case the higher amount is to continue to have effect.
(7)  For the purposes of this regulation–
“part-week” means a period to which Part 14 (periods of less than a week) applies;
“relevant week” means the benefit week or part-week in which the capital in
question of which the claimant has deprived himself or herself within the meaning
of regulation 115(1)–
(a) was first taken into account for the purpose of determining the claimant’s
entitlement to an income-related allowance, a jobseeker’s allowance or
income support; or
( a ) S.I. 2006/213.
( b ) S.I. 2006/215.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 116-118
(b) was taken into account on a subsequent occasion for the purpose of
determining or re-determining the claimant’s entitlement to an income-
related allowance, a jobseeker’s allowance or income support on that
subsequent occasion and that determination or re-determination resulted
in the claimant’s beginning to receive, or ceasing to receive, an income-
related allowance, a jobseeker’s allowance or income support;
and where more than one benefit week or part-week is identified by reference to
paragraphs (a) and (b) of this definition the later or latest such benefit week or, as
the case may be, the later or latest such part-week;
“relevant subsequent week” means the benefit week or part-week which includes
the day on which the further claim or, if more than one further claim has been
made, the last such claim was made.
Capital jointly held
117.  Except where a claimant possesses capital which is disregarded under
regulation 115(6) (notional capital), where a claimant and one or more persons are
beneficially entitled in possession to any capital asset they are to be treated as if each
of them were entitled in possession to the whole beneficial interest therein in an equal
share and the foregoing provisions of this Chapter are to apply for the purposes of
calculating the amount of capital which the claimant is treated as possessing as if it
were actual capital which the claimant does possess.
Calculation of tariff income from capital
118.—(1)  Except where the circumstances prescribed in paragraph (3) apply to the
claimant, where the claimant’s capital calculated in accordance with this Part exceeds
£6,000 it is to be treated as equivalent to a weekly income of £1 for each complete
£250 in excess of £6,000 but not exceeding £16,000.
(2)  Where the circumstances prescribed in paragraph (3) apply to the claimant and
that claimant’s capital calculated in accordance with this Part exceeds £10,000, it is to
be treated as equivalent to a weekly income of £1 for each complete £250 in excess of
£10,000 but not exceeding £16,000.
(3)  For the purposes of paragraph (2) the prescribed circumstances are that the
claimant lives permanently in–
(a)
a care home or an independent hospital;
(b)
an Abbeyfield Home; or
(c)
accommodation provided under section 3 of, and Part 2 of the Schedule to,
the Polish Resettlement Act 1947(a) (provision of accommodation in camps)
where the claimant requires personal care by reason of old age, disablement,
past or present dependence on alcohol or drugs, past or present mental
disorder or a terminal illness and the care is provided in the home.
(4)  For the purposes of paragraph (3), a claimant is to be treated as living
permanently in such home, hospital or accommodation where the claimant is absent–
(a)
from a home, hospital or accommodation referred to in sub-paragraph (a) or
(b) of paragraph (3)–
(i) in the case of a claimant over pensionable age, for a period not exceeding
52 weeks; and
(ii) in any other case, for a period not exceeding 13 weeks;
( a ) 1947 c. 19. Section 3 of and Part 2 of the Schedule to, the 1947 Act have been amended by
S.I. 1968/1699, the Supplementary Benefit Act 1966 (c. 20), section 39(1) and paragraph 3
of Schedule 6, Supplementary Benefits Act 1976 (c. 71), section 35(1) and (2) and
paragraph 4 of Schedule 6 and paragraph 1 of Schedule 7, the Social Security Act 1980 (c.
30), sections 20 and 21(4) and paragraph 1 of Schedule 4 and Part 2 of Schedule 5 and the
Criminal Justice Act 2003 (c. 44), section 304 and paragraph 154 of Schedule 32.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 118-119
(b)
from accommodation referred to in sub-paragraph (c) of paragraph (3), where
the claimant, with the agreement of the manager of the accommodation,
intends to return to the accommodation in due course.
(5)  Notwithstanding paragraphs (1) and (2), where any part of the excess is not a
complete £250 that part is to be treated as equivalent to a weekly income of £1.
(6) For the purposes of paragraphs (1) and (2), capital includes any income treated
as capital under ̈1regulation 112 (income treated as capital)̇.
1Words substituted in
reg. 118(6) & defns. of
“child maintenance”,
“claimant’s family”,
CHAPTER 8
“housing costs” &
“ordinary clothing and
footwear” inserted by
̈1Child maintenance and liable relative paymentṡ
reg. 20(7)(a)-(c) of S.I.
2008/2428 as from
2 7 . 1 0 . 0 8 .
Interpretation
119.  In this Chapter–
̈1“child maintenance” means any payment towards the maintenance of a child or
young person, including any payment made voluntarily and payments made
under–
(a) the Child Support Act 1991(a);
(b) the Child Support (Northern Ireland) Order 1991(b);
(c) a court order;
(d) a consent order;
(e) a maintenance agreement registered for execution in the Books of Council
and Session or the sheriff court books;̇
“claimant” includes a young claimant;
̈1“claimant’s family” shall be construed in accordance with section 137 of the
Contributions and Benefits Act (interpretation of part 7 and supplementary
provisions);
“housing costs” means those costs which may be met under paragraph 1(2) of
Schedule 6;̇
“liable relative” means–
(a) a spouse, former spouse, civil partner or former civil partner of a claimant
or of a member of the claimant’s family;
(b) a parent of a child or young person who is a member of the claimant’s
family or of a young claimant;
(c) a person who has not been adjudged to be the father of a child or young
person who is a member of the claimant’s family or of a young claimant
where that person is contributing towards the maintenance of that child,
young person or young claimant and by reason of that contribution the
claimant may reasonably be treated as the father of that child, young
person or young claimant;
(d) a person liable to maintain another person by virtue of section 78(6)(c) of
the Administration Act (liability to maintain) where the latter is the
claimant or a member of the claimant’s family,
and, in this definition, a reference to a child’s, young person’s or young claimant’s
parent includes any person in relation to whom the child, young person or young
claimant was treated as a child or a member of the family;
̈1“ordinary clothing and footwear” means clothing and footwear for normal daily
use but does not include school uniforms;̇
“payment” means a periodical payment or any other payment made by or derived
from a liable relative ̈2̇ but it does not include any payment–
2Words in defn. of
“payment” omitted by
( a ) 1991 c. 48.
reg. 20(7)(d)(i) of S.I.
2008/2428 as from
( b ) S.I. 1991/2628 (N.I. 23).
2 7 . 1 0 . 0 8 .
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 119
(a) arising from a disposition of property made in contemplation of, or as a
consequence of–
(i) an agreement to separate;
(ii) any proceedings for judicial separation, divorce or nullity of marriage;
or
(iii) any proceedings for separation, dissolution or nullity in relation to a
civil partnership;
(b) made after the death of the liable relative;
(c) made by way of a gift but not in aggregate or otherwise exceeding £250
in the period of 52 weeks beginning with the date on which the payment,
or if there is more than one such payment the first payment, is made; and,
in the case of a claimant who continues to be in receipt of an income-
related allowance at the end of the period of 52 weeks, this provision is to
continue to apply thereafter with the modification that any subsequent
period of 52 weeks is to begin with the first day of the benefit week in
which the first payment is made after the end of the previous period of 52
weeks;
1Para. (d) substituted in
̈1(d) made to a third party, or in respect of a third party, unless the payment is–
defn. of “payment” and
(i) in relation to the claimant or the claimant’s family ; and
words omitted &
substituted in defn. of
(ii) the payment is in respect of food, ordinary clothing or footwear, fuel,
“periodical payment” by
rent, housing costs, council tax or water charges;̇
reg. 20(2)(b), (7)(d) &
(e) of S.I. 2008/2428 as
where having regard to the purpose of the payment, the terms under which
f r o m   2 7 . 1 0 . 0 8 .
it is made and its amount it is unreasonable to take it into account;
(e) in kind;
(f) to, or in respect of, a child or young person who is to be treated as not
being a member of the claimant’s household under regulation 156
(circumstances in which a person is to be treated as being or not being a
member of the same household);
(g) which is not a periodical payment, to the extent that any amount of that
payment–
(i) has already been taken into account under this Part by virtue of a
previous claim or determination;
(ii) has been recovered under section 74 of the Administration Act(a)
(income support and other payments) or is currently being recovered;
or
(iii) at the time the determination is made, has been used by the claimant
except where the claimant has deprived himself or herself of that
amount for the purpose of securing entitlement to an income-related
allowance or increasing the amount of that allowance;
“periodical payment” means–
(a) a payment which is made or is due to be made at regular intervals ̈1̇;
(b) in a case where the liable relative has established a pattern of making
payments at regular intervals, any such payment;
(c) any payment ̈1, after the appropriate disregard under paragraph 60 of
Schedule 8 (sums to be disregarded in the calculation of income other
than earnings) has been applied to it, that does not exceeḋ the amount
of an income-related allowance payable had that payment not been made;
(d) any payment representing a commutation of payments to which paragraph
(a) or (b) of this definition applies whether made in arrears or in advance,
but does not include a payment due to be made before the first benefit week
pursuant to the claim which is not so made;
“young claimant” means a person aged 16 or over but under 20 who makes a claim
for an income-related allowance.
( a ) Section 74 has been amended by the Jobseekers Act 1995 (c. 18), paragraph 5 of the
Schedule and the Act, paragraph 10(8) of Schedule 3.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 120-123
Treatment of ̈1child maintenance oṙ liable relative payments
1Words in heading to
reg. 120 & within reg.
120. Subject to regulation 121(disregard of payments treated as not relevant income)
120 inserted &
and ̈1paragraph 60 of Schedule 8 (sums to be disregarded in the calculation of income
substituted by reg.
other than earnings)̇ a payment–
20(2)(b) & (8) of S.I.
2008/2428 as from
(a)
to the extent that it is not a payment of income, is to be treated as income;
2 7 . 1 0 . 0 8 .
(b)
is to be taken into account in accordance with the following provisions of
this Chapter.
Disregard of payments treated as not relevant income
121. Where the Secretary of State treats any payment as not being relevant income
for the purposes of section 74A of the Administration Act(a) (payment of benefit where
maintenance payments collected by Secretary of State), that payment is to be
disregarded in calculating a claimant’s income.
Period over which periodical payments are to be taken into account
122.—(1) The period over which a periodical payment is to be taken into account
is to be–
(a)
in a case where the payment is made at regular intervals, a period equal to
the length of that interval;
(b)
in a case where the payment is due to be made at regular intervals but is not
so made, such number of weeks as is equal to the number (and any fraction is
to be treated as a corresponding fraction of a week) obtained by dividing the
amount of that payment by the weekly amount of that periodical payment as
calculated in accordance with regulation 124(4) (calculation of the weekly
amount of a liable relative payment);
(c)
in any other case, a period equal to a week.
(2) The period under paragraph (1) is to begin on the date on which the payment is
treated as paid under regulation 125 (date on which a liable relative payment is to be
treated as paid).
̈2Period over which payments other than periodical payments are to be taken into
2Reg. 123 substituted by
account
reg. 20(9) of S.I. 2008/
2428 as from 27.10.08.
123.—(1) The period over which a payment other than a periodical payment (a
"non-periodical payment") is to be taken into account shall be determined as follows.
(2) Except in a case where paragraph (4) applies, the number of weeks over which a
non-periodical payment is to be taken into account shall be equal to the number
obtained by dividing that payment by the amount referred to in paragraph (3).
(3) The amount is the aggregate of £2 and–
(a)
the amount of employment and support allowance that would be payable
had no payment been made, and
(b)
where applicable, the maximum amount of disregard that would apply to the
payment under paragraph 60 of Schedule 8.
(4) This paragraph applies in a case where a liable relative makes a periodical
payment and a non-periodical payment concurrently and the weekly amount of the
periodical payment (as calculated in accordance with regulation 124) is less than B.
(5) In a case where paragraph (4) applies, the non-periodical payment shall, subject
to paragraphs (6) and (7), be taken into account over a period of the number of weeks
equal to the number obtained by applying the formula–
A
B - C
( a ) Section 74A was inserted by the Child Support Act 1995 (c. 34), section 25 and amended by
the Civil Partnership Act 2004 (c. 33), sections 254(1) and 261(4), Part 4 of Schedule 24
and paragraph 60(a) to (c) of Schedule 30 and the Act, section 28(1) and paragraph 10(1)
and (9) of Schedule 3.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 123-125
(6) If the liable relative ceases to make periodical payments, the balance (if any) of
the non-periodical payment shall be taken into account over the number of weeks
equal to the number obtained by dividing that balance by the amount referred to in
paragraph (3).
(7) If the amount of any subsequent periodical payment varies, the balance (if any)
of the non-periodical payment shall be taken into account over a period of the number
of weeks equal to the number obtained by applying the formula–
D
B - E
(8) The period under paragraph (2) or (4) shall begin on the date on which the
payment is treated as paid under regulation 125 (date on which a liable relative payment
is to be treated as paid) and the period under paragraph (6) or (7) shall begin on the
first day of the benefit week in which the cessation or variation of the periodical
payment occurred.
(9) Any fraction which arises by applying a calculation or formula referred to in
this regulation shall be treated as a corresponding fraction of a week.
(10) In paragraphs (4) to (7)–
A = the amount of the non-periodical payment;
B = the aggregate of £2 and the amount of employment and support allowance
that would be payable had the periodical payment not been made and, where
applicable, the maximum disregard under paragraph 60 of Schedule 8;
C = the weekly amount of the periodical payment;
D = the balance (if any) of the non-periodical payment;
E = the weekly amount of any subsequent periodical payment.̇
1Words inserted in
Calculation of the weekly amount of a ̈1child maintenance oṙ liable relative
heading to regs. 124 &
payment
125 by reg. 20(2)(c) &
(d) of S.I. 2008/2428 as
124.—(1) Where a periodical payment is made or is due to be made at intervals of
f r o m   2 7 . 1 0 . 0 8 .
one week, the weekly amount is to be the amount of that payment.
(2)  Where a periodical payment is made or is due to be made at intervals greater
than one week and those intervals are monthly, the weekly amount is to be determined
by multiplying the amount of the payment by 12 and dividing the product by 52.
(3)  Where a periodical payment is made or is due to be made at intervals and those
intervals are neither weekly nor monthly, the weekly amount is to be determined by
dividing that payment by the number equal to the number of weeks (including any
part of a week) in that interval.
(4)  Where a payment is made and that payment represents a commutation of
periodical payments whether in arrears or in advance, the weekly amount is to be the
weekly amount of the individual periodical payments so commuted as calculated
under paragraphs (1) to (3) as is appropriate.
(5)  The weekly amount of a payment to which regulation 123 (period over which
payments other than periodical payments are to be taken into account) applies, is to
be equal to the amount of the divisor used in calculating the period over which the
payment or, as the case may be, the balance is to be taken into account.
Date on which a ̈1child maintenance oṙ liable relative payment is to be treated as
paid
125.—(1) A periodical payment is to be treated as paid–
(a)
in the case of a payment which is due to be made before the first benefit
week pursuant to the claim, on the day in the week in which it is due to be
paid which corresponds to the first day of the benefit week;
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 125-131
(b)
in any other case, on the first day of the benefit week in which it is due to be
paid unless, having regard to the manner in which an income-related
allowance is due to be paid in the particular case, it would be more practicable
to treat it as paid on the first day of a subsequent benefit week.
(2)  Subject to paragraph (3), any other payment is to be treated as paid–
(a)
in the case of a payment which is made before the first benefit week pursuant
to the claim, on the day in the week in which it is paid which corresponds to
the first day of the benefit week;
(b)
in any other case, on the first day of the benefit week in which it is paid
unless, having regard to the manner in which an income-related allowance
is due to be paid in the particular case, it would be more practicable to treat
it as paid on the first day of a subsequent benefit week.
(3)  Any other payment paid on a date which falls within the period in respect of
which a previous payment is taken into account, not being a periodical payment, is to
be treated as paid on the first day following the end of that period.
̈1̇
1Regs. 126-130 omitted
by regs. 20(4)(b) & (c)
̈1̇
of S.I. 2008/2428 as
f r o m   2 7 . 1 0 . 0 8 .
CHAPTER 10
Students
Interpretation
131.—(1) In this Chapter–
“academic year” means the period of twelve months beginning on 1st January, 1st
April, 1st July or 1st September according to whether the course in question
begins in the winter, the spring, the summer or the autumn respectively but if
students are required to begin attending the course during August or September
and to continue attending through the autumn, the academic year of the course is
to be considered to begin in the autumn rather than the summer;
“access funds” means–
(a) grants made under section 7 of the Further and Higher Education Act
1992(a) and described as “learner support funds” or grants made under
section 68 of that Act for the purpose of providing funds on a discretionary
basis to be paid to students;
(b) grants made under sections 73(a) and (c) and 74(1) of the Education
(Scotland) Act 1980(b);
(c) grants made under Article 30 of the Education and Libraries (Northern
Ireland) Order 1993(c), or grants, loans or other payments made under
Article 5 of the Further Education (Northern Ireland) Order 1997(d) in
each case being grants, or grants, loans or other payments as the case may
be, made for the purpose of assisting students in financial difficulties;
( a ) 1992 c. 13.
( b ) 1980 c. 44.
( c ) S.I. 1993/2810 (N.I. 12). The functions under article 30 were transferred by S.R. 1999/481
and the relevant amending instruments are S.I.1997/1772 (N.I. 15), S.I. 2005/1116 (N.I. 5)
and S.I. 2005/1963 (N.I. 13).
( d ) S.I. 1997/1772 (N.I. 15).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 131
(d) discretionary payments, known as “learner support funds”, which are made
available to students in further education by institutions out of funds
provided by the Learning and Skills Council for England under sections
5, 6 and 9 of the Learning and Skills Act 2000(a); or
(e) Financial Contingency Funds made available by the Welsh Ministers;
“college of further education” means, in Scotland, an educational establishment
by which further education is provided;
“contribution” means any contribution in respect of the income of a student or of
any other person which the Secretary of State, the Scottish Ministers or an
education authority takes into account in ascertaining the amount of the student’s
grant or student loan, or any sums, which in determining the amount of a student’s
allowance or bursary in Scotland under the Education (Scotland) Act 1980(b), the
Scottish Ministers or education authority take into account being sums which the
Scottish Ministers or the education authority consider that the holder of the
allowance or bursary, the holder’s parents and the holder’s spouse or civil partner
can reasonably be expected to contribute towards the holder’s expenses;
“course of advanced education” means–
(f) a course leading to a postgraduate degree or comparable qualification, a
first degree or comparable qualification, a diploma of higher education
or a higher national diploma; or
(g) any other course which is of a standard above advanced GNVQ, or
equivalent, including a course which is of a standard above a general
certificate of education (advanced level), a Scottish national qualification
(higher or advanced higher);
“covenant income” means the income payable to a student under a Deed of
Covenant by a person whose income is, or is likely to be, taken into account in
assessing the student’s grant or award;
“education authority” means a government department, a local education authority
as defined in section 212 of the Education Act 2002(c) (interpretation), an education
authority as defined in section 123 of the Local Government (Scotland) Act
1973(d), an education and library board established under Article 3 of the Education
and Libraries (Northern Ireland) Order 1986(e), any body which is a research
council for the purposes of the Science and Technology Act 1965(f) or any
analogous government department, authority, board or body, of the Channel
Islands, Isle of Man or any other country outside Great Britain;
“full-time course of advanced education” means a course of advanced education
which is–
(h) a full-time course of study which is not funded in whole or in part by the
Learning and Skills Council for England or by the Welsh Ministers or a
full-time course of study which is not funded in whole or in part by the
Scottish Ministers at a college of further education or a full-time course
of study which is a course of higher education and is funded in whole or
in part by the Scottish Ministers;
(i) a course of study which is funded in whole or in part by the Learning and
Skills Council for England or by the Welsh Ministers if it involves more
than 16 guided learning hours per week for the student in question,
according to the number of guided learning hours per week for that student
set out–
( a ) 2000 c. 21. Section 5 was amended by the Education Act 2002 (c. 32), section 178(1),
(2)(a) and (b). Section 6 was amended by the Special Educational Needs and Disability Act
2001 (c. 10), sections 34(7) and 42(6) and Schedule 9. Section 9 was amended by the
Education and Inspections Act 2006 (c. 40), section 176(2).
( b ) 1980 c. 44.
( c ) 2002 c. 32.
( d ) 1973 c. 65, section 123 was substituted by the Local Government etc. (Scotland) Act 1994
(c. 39), section 180 and Schedule 13, paragraph 92(28).
( e ) S.I. 1986/594 (N.I. 3).
( f ) 1965 c. 4.
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Reg. 131
(i) in the case of a course funded by the Learning and Skills Council for
England, in the student’s learning agreement signed on behalf of the
establishment which is funded by that Council for the delivery of that
course; or
(ii) in the case of a course funded by the Welsh Ministers, in a document
signed on behalf of the establishment which is funded by that Council
for the delivery of that course; or
(j) a course of study (not being higher education) which is funded in whole
or in part by the Scottish Ministers at a college of further education if it
involves–
(i) more than 16 hours per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff
according to the number of hours set out in a document signed on
behalf of the college; or
(ii) 16  hours or less per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff and it
involves additional hours using structured learning packages supported
by the teaching staff where the combined total of hours exceeds 21 per
week, according to the number of hours set out in a document signed
on behalf of the college;
“full-time course of study” means a full-time course of study which–
(k) is not funded in whole or in part by the Learning and Skills Council for
England or by the Welsh Ministers or a full-time course of study which is
not funded in whole or in part by the Scottish Ministers at a college of
further education or a full-time course of study which is a course of higher
education and is funded in whole or in part by the Scottish Ministers;
(l) a course of study which is funded in whole or in part by the Learning and
Skills Council for England or by the Welsh Ministers if it involves more
than 16 guided learning hours per week for the student in question,
according to the number of guided learning hours per week for that student
set out–
(i) in the case of a course funded by the Learning and Skills Council for
England, in the student’s learning agreement signed on behalf of the
establishment which is funded by that Council for the delivery of that
course; or
(ii) in the case of a course funded by the Welsh Ministers, in a document
signed on behalf of the establishment which is funded by that Council
for the delivery of that course; or
(m) is not higher education and is funded in whole or in part by the Scottish
Ministers at a college of further education if it involves–
(i) more than 16 hours per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff
according to the number of hours set out in a document signed on
behalf of the college; or
(ii) 16  hours or less per week of classroom-based or workshop-based
programmed learning under the direct guidance of teaching staff and it
involves additional hours using structured learning packages supported
by the teaching staff where the combined total of hours exceeds 21 per
week, according to the number of hours set out in a document signed
on behalf of the college;
“full-time student” means a person who is not a qualifying young person or child
within the meaning of section 142 of the Contributions and Benefits Act(a) (child
and qualifying young person) and who is–
(n) aged less than 19 and is attending or undertaking a full-time course of
advanced education;
( a ) Section 142 was substituted by the Child Benefit Act 2005 (c. 6), section 1(2).
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 131
(o) aged 19 or over but under pensionable age and is attending or undertaking
a full-time course of study at an educational establishment; or
(p) on a sandwich course;
“grant” (except in the definition of “access funds”) means any kind of educational
grant or award and includes any scholarship, studentship, exhibition, allowance
or bursary but does not include a payment from access funds or any payment to
which paragraph 13 of Schedule 8 or paragraph 52 of Schedule 9 applies;
“grant income” means–
(q) any income by way of a grant;
(r) in the case of a student other than one to whom paragraph (c) refers, any
contribution which has been assessed whether or not it has been paid;
(s) in the case of a student who is a lone parent or is a person to whom Part 4
applies, any contribution which has been assessed and which has been
paid,
and any such contribution which is paid by way of a covenant is to be treated as
part of the student’s grant income;
“higher education” means higher education within the meaning of Part 2 of the
Further and Higher Education (Scotland) Act 1992(a);
“last day of the course” means the date on which the last day of the final academic
term falls in respect of the course in which the student is enrolled;
“period of study” means–
(t) in the case of a course of study for one year or less, the period beginning
with the start of the course and ending with the last day of the course;
(u) in the case of a course of study for more than one year, in the first or, as the
case may be, any subsequent year of the course, other than the final year
of the course, the period beginning with the start of the course or, as the
case may be, that year’s start and ending with either–
(i) the day before the start of the next year of the course in a case where
the student’s grant or loan is assessed at a rate appropriate to the
student’s studying throughout the year or, if the claimant does not
have a grant or loan, where a loan would have been assessed at such a
rate had the claimant had one; or
(ii) in any other case the day before the start of the normal summer vacation
appropriate to the student’s course;
(v) in the final year of a course of study of more than one year, the period
beginning with that year’s start and ending with the last day of the course;
“periods of experience” means periods of work experience which form part of a
sandwich course;
“sandwich course” has the meaning prescribed in regulation 2(9) of the Education
(Student Support) Regulations 2007(b), regulation 4(2) of the Education (Student
Loans) (Scotland) Regulations 2007(c) or regulation 2(8) of the Education (Student
Support) Regulations (Northern Ireland) 2007(d);
“standard maintenance grant” means–
(w) except where paragraph (b) or (c) applies, in the case of a student attending
or undertaking a course of study at the University of London or an
establishment within the area comprising the City of London and the
Metropolitan Police District, the amount specified for the time being in
paragraph 2(2)(a) of Schedule 2 to the Education (Mandatory Awards)
Regulations 2003(e) (“the 2003 Regulations”) for such a student;
( a ) 1992 c. 37.
( b ) S.I. 2007/176.
( c ) S.S.I. 2007/154.
( d ) S.R. 2007/195.
( e ) S.I. 2003/1994.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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Reg. 131
(x) except where paragraph (c) applies, in the case of a student residing at the
student’s parent’s home, the amount specified in paragraph 3(2) of
Schedule 2 to the 2003 Regulations;
(y) in the case of a student receiving an allowance or bursary under the
Education (Scotland) Act 1980(a), the amount of money specified for the
relevant year appropriate for the student set out in the Student Support in
Scotland Guide issued by the Student Awards Agency for Scotland, or its
nearest equivalent in the case of a bursary provided by a college of further
education or a local education authority;
(z) in any other case, the amount specified in paragraph 2(2) of Schedule 2 to
the 2003 Regulations other than in paragraph (a) or (b) of that paragraph;
“student” means a person, other than a person in receipt of a training allowance,
who is attending or undertaking a course of study at an educational establishment;
“student loan” means a loan towards a student’s maintenance pursuant to any
regulations made under section 22 of the Teaching and Higher Education Act
1998(b), sections ̈173(f)̇, 73B and 74 of the Education (Scotland) Act 1980 or
1Words substituted in
article 3 of the Education (Student Support) (Northern Ireland) Order 1998(c) and
defn. of “student loan”
is to include, in Scotland, amounts paid under regulation 4(1)(c) of the Students’
by reg. 8(9) of S.I.
2008/2428 as from
Allowances (Scotland) Regulations 2007(d).
2 7 . 1 0 . 0 8 .
(2)  For the purposes of the definition of “full-time student” in paragraph (1), a
person is to be regarded as attending or, as the case may be, undertaking a full-time
course of study, a full-time course of advanced education or as being on a sandwich
course–
(a)
subject to paragraph (3), in the case of a person attending or undertaking a
part of a modular course which would be a full-time course of study for the
purposes of this Part, for the period beginning on the day on which that part
of the course starts and ending–
(i) on the last day on which the claimant is registered with the educational
establishment as attending or undertaking that part as a full-time course
of study; or
(ii) on such earlier date (if any) as the claimant finally abandons the course
or is dismissed from it;
(b)
in any other case, throughout the period beginning on the date on which the
claimant starts attending or undertaking the course and ending on the last
day of the course or on such earlier date (if any) as the claimant finally
abandons it or is dismissed from it.
(3)  For the purpose of sub-paragraph (a) of paragraph (2), the period referred to in
that sub-paragraph is to include–
(a)
where a person has failed examinations or has failed to successfully complete
a module relating to a period when the claimant was attending or undertaking
a part of the course as a full-time course of study, any period in respect of
which the claimant attends or undertakes the course for the purpose of
retaking those examinations or that module;
( a ) 1980 c. 44.
( b ) 1998 c. 30. Section 22 was amended by the Learning and Skills Act 2000 (c. 21), section
146(1) and (2)(a), the Higher Education Act 2004 (c. 8), sections 42(1), 43(1), (2) and (3)
and 50 and Schedule 7, the Income Tax (Earnings and Pensions) Act 2003 (c. 1), section 722
and Schedule 6, Part 2, paragraph 236(a) and (b) and the Finance Act 2003 (c. 14), section
1 4 7 ( 3 ) .
( c ) S.I. 1998/1760 (N.I. 14).
( d ) S.S.I. 2007/153.
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Regs. 131-132
(b)
any period of vacation within the period specified in that paragraph or
immediately following that period except where the person has registered
with the educational establishment to attend or undertake the final module
in the course and the vacation immediately follows the last day on which
the claimant is required to attend or undertake the course.
(4) In paragraph (2), “modular course” means a course of study which consists of
two or more modules, the successful completion of a specified number of which is
required before a person is considered by the educational establishment to have
completed the course.
Calculation of grant income
132.—(1)  The amount of student’s grant income to be taken into account, subject
to paragraphs (2) and (3), is to be the whole of the student’s grant income.
(2)  There is to be disregarded from the amount of a student’s grant income any
payment–
(a)
intended to meet tuition fees or examination fees;
(b)
intended to meet additional expenditure incurred by a disabled student in
respect of that student’s attendance on a course;
(c)
intended to meet additional expenditure connected with term time residential
study away from the student’s educational establishment;
(d)
on account of the student maintaining a home at a place other than that at
which the student resides while attending the course but only to the extent
that the student’s rent is not met by housing benefit;
(e)
on account of any other person but only if that person is residing outside of
the United Kingdom and there is no applicable amount in respect of that
person;
(f)
intended to meet the cost of books and equipment;
(g)
intended to meet travel expenses incurred as a result of the student’s
attendance on the course;
(h)
intended for the maintenance of a child dependant;
(i)
intended for the child care costs of a child dependant.
(3)  Where a student does not have a student loan and is not treated as possessing
such a loan, there is to be excluded from the student’s grant income–
(a)
the sum of ̈1£295̇ per academic year in respect of travel costs; and
1Amounts substituted in
(b)
the sum of ̈1£380̇ per academic year towards the costs of books and
reg. 132(3) by reg. 7(3)
of S.I. 2008/1599 as
equipment,
f r o m   2 7 . 1 0 . 0 8 .
whether or not any such costs are incurred.
(4)  Subject to paragraph (6), a student’s grant income except any amount intended
for the maintenance of adult dependants under Part 3 of Schedule 2 to the Education
(Mandatory Awards) Regulations 2003 is to be apportioned–
(a)
subject to paragraph (7), in a case where it is attributable to the period of
study, equally between the weeks in the period beginning with the benefit
week, the first day of which coincides with, or immediately follows, the first
day of the period of study and ending with the benefit week, the last day of
which coincides with, or immediately precedes, the last day of the period of
study;
(b)
in any other case, equally between the weeks in the period beginning with
the benefit week, the first day of which coincides with, or immediately
follows, the first day of the period for which it is payable and ending with
the benefit week, the last day of which coincides with, or immediately
precedes, the last day of the period for which it is payable.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 132-134
(5)  Any grant in respect of an adult dependant paid under section 63(6) of the
Health Services and Public Health Act 1968(a) (grants in respect of the provision of
instruction to officers of hospital authorities) and any amount intended for the
maintenance of an adult dependant under the provisions referred to in paragraph (4) is
to be apportioned equally over a period of 52 weeks or, if there are 53 benefit weeks
(including part-weeks) in the year, 53 weeks.
(6) In a case where a student is in receipt of a student loan or where that student
could have acquired a student loan by taking reasonable steps but had not done so,
any amount intended for the maintenance of an adult dependant under provisions
other than those referred to in paragraph (4) is to be apportioned over the same period
as the student’s loan is apportioned or, as the case may be, would have been
apportioned.
(7) In the case of a student on a sandwich course, any periods of experience within
the period of study is to be excluded and the student’s grant income is to be apportioned
equally between the weeks in the period beginning with the benefit week, the first day
of which immediately follows the last day of the period of experience and ending with
the benefit week, the last day of which coincides with, or immediately precedes, the
last day of the period of study.
Calculation of covenant income where a contribution is assessed
133.—(1)  Where a student is in receipt of income by way of a grant during a period
of study and a contribution has been assessed, the amount of the student’s covenant
income to be taken into account for that period and any summer vacation immediately
following is to be the whole amount of the student’s covenant income less, subject to
paragraph (3), the amount of the contribution.
(2) The weekly amount of the student’s covenant income is to be determined–
(a)
by dividing the amount of income which falls to be taken into account
under paragraph (1) by 52 or, if there are 53 benefit weeks (including part-
weeks) in the year, 53; and
(b)
by disregarding from the resulting amount, £5.
(3)  For the purposes of paragraph (1), the contribution is to be treated as increased
by the amount, if any, by which the amount excluded under regulation 132(2)(g)
(calculation of grant income) falls short of the amount for the time being specified in
paragraph 7(2) of Schedule 2 to the Education (Mandatory Awards) Regulations
2003(b) (travel expenditure).
Calculation of covenant income where no grant income or no contribution is
assessed
134.—(1)  Where a student is not in receipt of income by way of a grant the amount
of the student’s covenant income is to be calculated as follows–
(a)
any sums intended for any expenditure specified in regulation 132(2)(a) to
(e), necessary as a result of the student’s attendance on the course, are to be
disregarded;
(b)
any covenant income, up to the amount of the standard maintenance grant,
which is not so disregarded is to be apportioned equally between the weeks
of the period of study and there is to be disregarded from the covenant
income to be so apportioned the amount which would have been disregarded
under regulation 132(2)(f) and (g) and (3) had the student been in receipt of
the standard maintenance grant;
( a ) 1968 c. 46. Section 63(6) was amended by the Health and Medicines Act 1988 (c. 49),
section 20.
( b ) S.I. 2003/1994, the relevant amending instrument is S.I. 2007/1629.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 134-137
(c)
the balance, if any, is to be divided by 52 or, if there are 53 benefit weeks
(including part-weeks) in the year, 53 and treated as weekly income of which
£5 is to be disregarded.
(2)  Where a student is in receipt of income by way of a grant and no contribution
has been assessed, the amount of the student’s covenant income is to be calculated in
accordance with paragraph (1), except that–
(a)
the value of the standard maintenance grant is to be abated by the amount of
the student’s grant income less an amount equal to the amount of any sums
disregarded under regulation 132(2)(a) to (e); and
(b)
the amount to be disregarded under paragraph (1)(b) is to be abated by an
amount equal to the amount of any sums disregarded under regulation
132(2)(f) and (g) and (3).
Relationships with amounts to be disregarded under Schedule 8
135.—(1)  No part of a student’s covenant income or grant income is to be disregarded
under paragraph 16 of Schedule 8 (charitable and voluntary payments).
Other amounts to be disregarded
136.—(1)  For the purposes of ascertaining income other than grant income,
covenant income and loans treated as income in accordance with regulation 137
(treatment of student loans), any amounts intended for any expenditure specified in
regulation 132(2) (calculation of grant income) necessary as a result of the student’s
attendance on the course is to be disregarded but only if, and to the extent that, the
necessary expenditure exceeds or is likely to exceed the amount of the sums
disregarded under regulation 132(2) and (3), 133(3) (calculation of covenant income
where a contribution is assessed), 134(1)(a) or (b) (calculation of covenant income
where no grant income or no contribution is assessed) and 137(6) on like expenditure.
(2)  Where a claim is made in respect of any period in the normal summer vacation
and any income is payable under a Deed of Covenant which commences or takes effect
after the first day of that vacation, that income is to be disregarded.
Treatment of student loans
137.—(1) A student loan is to be treated as income unless it is a specified loan or
award in which case it is to be disregarded.
(2)  For the purposes of paragraph (1), a “specified loan or award” means–
(a)
in relation to England, a loan made by the Higher Education Funding Council
for England under section 65 of the Further and Higher Education Act
1992(a);
(b)
in relation to Wales, a loan made by the Higher Education Funding Council
for Wales under section 65 of the Further and Higher Education Act 1992;
(c)
in relation to Scotland, a loan made by an educational institution from
funds it has received under the Education (Access Funds) (Scotland)
Regulations 1990(b);
(d)
in relation to Northern Ireland, an award made by the Department for
Employment and Learning under article 51 of the Education and Libraries
(Northern Ireland) Order 1986(c).
(3)  In calculating the weekly amount of the loan to be taken in account as income–
(a)
in respect of a course that is of a single academic year’s duration or less, a
loan which is payable in respect of that period is to be apportioned equally
between the weeks in the period beginning with–
( a ) 1992 c. 13.
( b ) S.I. 1990/1534 (S. 157).
( c ) S.I. 1986/594 (N.I. 3).
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The Law Relating to Social Security
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Reg. 137
(i) except in a case where paragraph (ii) applies, the benefit week, the first
day of which coincides with, or immediately follows, the first day of the
single academic year;
(ii) where the student is required to start attending the course in August or
where the course is less than an academic year’s duration, the benefit
week, the first day of which coincides with, or immediately follows, the
first day of the course,
and ending with the benefit week, the last day of which coincides with, or
immediately precedes, the last day of the course;
(b)
in respect of an academic year of a course which starts other than on 1st
September, a loan which is payable in respect of that academic year is to be
apportioned equally between the weeks in the period beginning with the
benefit week, the first day of which coincides with, or immediately follows,
the first day of that academic year and ending with the benefit week, the last
day of which coincides with, or immediately precedes, the last day of that
academic year but excluding any benefit weeks falling entirely within the
quarter during which, in the opinion of the Secretary of State, the longest of
any vacation is taken;
(c)
for the purposes of sub-paragraph (b), “quarter” is to have the same meaning
as for the purposes of regulation 104(6) (calculation of income other than
earnings);
(d)
in respect of the final academic year of a course (not being a course of a
single year’s duration), a loan which is payable in respect of that final
academic year is to be apportioned equally between the weeks in the period
beginning with–
(i) except in a case where paragraph (ii) applies, the benefit week, the first
day of which coincides with, or immediately follows, the first day of that
academic year;
(ii) where the final academic year starts on 1st September, the benefit week,
the first day of which coincides with, or immediately follows, the earlier
of 1st September or the first day of the autumn term,
and ending with the benefit week, the last day of which coincides with, or
immediately precedes, the last day of the course;
(e)
in any other case, the loan is to be apportioned equally between the weeks
in the period beginning with the earlier of–
(i) the first day of the first benefit week in September; or
(ii) the benefit week, the first day of which coincides with, or immediately
follows, the first day of the autumn term,
and ending with the benefit week, the last day of which coincides with, or
immediately precedes, the last day of June,
and, in all cases, from the weekly amount so apportioned there is to be disregarded
£10.
(4) A student is to be treated as possessing a student loan in respect of an academic
year where–
(a)
a student loan has been made to that student in respect of that year; or
(b)
the student could acquire such a loan in respect of that year by taking
reasonable steps to do so.
(5)  Where a student is treated as possessing a student loan under paragraph (4), the
amount of the student loan to be taken into account as income is to be, subject to
paragraph (6)–
(a)
in the case of a student to whom a student loan is made in respect of an
academic year, a sum equal to the maximum student loan the student is able
to acquire in respect of that year by taking reasonable steps to do so and
either–
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 137-139
(i) in the case of a student other than one to whom paragraph (ii) refers, any
contribution whether or not it has been paid to that student; or
(ii) in the case of a student who is entitled to an income-related allowance
by virtue of being a student to whom regulation 18 (circumstances in
which the condition that the claimant is not receiving education does
not apply) applies;
(b)
in the case of a student to whom a student loan is not made in respect of an
academic year, the maximum student loan that would be made to the student
if–
(i) the student took all reasonable steps to obtain the maximum student
loan that student is able to acquire in respect of that year; and
(ii) no  deduction in that loan was made by virtue of the application of a
means test.
(6)  There is to be deducted from the amount of income taken into account under
paragraph (5)–
(a)
the sum of ̈1£295̇ per academic year in respect of travel costs; and
1Amounts substituted in
(b)
the sum of ̈1£380̇ per academic year towards the costs of books and
reg. 137(6) by reg. 7(4)
of S.I. 2008/1599 as
equipment,
f r o m   2 7 . 1 0 . 0 8 .
whether or not any such costs are incurred.
Treatment of payments from access funds
138.—(1)  This regulation applies to payments from access funds that are not
payments to which regulation 142(2) or (3) (income treated as capital) applies.
(2) A payment from access funds, other than a payment to which paragraph (3)
applies, is to be disregarded as income.
(3)  Subject to paragraph (4) and paragraph 39 of Schedule 8, any payments from
access funds which are intended and used for food, ordinary clothing or footwear,
household fuel, rent for which housing benefit is payable or any housing costs to the
extent that they are met under regulation 67(1)(c) or 68(1)(d) (housing costs), of a
single claimant or, as the case may be, of the claimant’s partner, and any payments
from access funds which are used for any council tax or water charges for which that
claimant or partner is liable is to be disregarded as income to the extent of £20 per
week.
(4)  Where a payment from access funds is made–
(a)
on or after 1st September or the first day of the course, whichever first occurs,
but before receipt of any student loan in respect of that year and that payment
is intended for the purpose of bridging the period until receipt of the student
loan; or
(b)
before the first day of the course to a person in anticipation of that person
becoming a student,
that payment is to be disregarded as income.
Treatment of fee loans
139.  A loan for fees, known as a fee loan or a fee contribution loan, made pursuant
to regulations made under Article 3 of the Education (Student Support) (Northern
Ireland) Order 1998(a), section 22 of the Teaching and Higher Education Act 1998(b)
or section 73(f) of the Education (Scotland) Act 1980(c), is to be disregarded as income.
( a ) S.I. 1998/1760 (N.I. 14).
( b ) 1998 c. 30.
( c ) 1980 c. 44.
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The Law Relating to Social Security
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 140-144
Disregard of contribution
140.  Where the claimant or the claimant’s partner is a student and, for the purposes
of assessing a contribution to the student’s grant or student loan, the other partner’s
income has been taken into account, an amount equal to that contribution is to be
disregarded for the purposes of assessing that other partner’s income.
Further disregard of student’s income
141.  Where any part of a student’s income has already been taken into account for
the purposes of assessing that student’s entitlement to a grant or student loan, the
amount taken into account is to be disregarded in assessing that student’s income.
Income treated as capital
142.—(1) Any amount by way of a refund of tax deducted from a student’s income
is to be treated as capital.
(2) An amount paid from access funds as a single lump sum is to be treated as
capital.
(3) An amount paid from access funds as a single lump sum which is intended and
used for an item other than food, ordinary clothing or footwear, household fuel, rent
for which housing benefit is payable or any housing costs to the extent that they are
met under regulation 67(1)(c) or 68(1)(d), of a single claimant or, as the case may be,
of the claimant’s partner, or which is used for an item other than any council tax or
water charges for which that claimant or partner is liable is to be disregarded as capital
but only for a period of 52 weeks from the date of the payment.
Disregard of changes occurring during summer vacation
143.  In calculating a student’s income there is to be disregarded any change in the
standard maintenance grant occurring in the recognised summer vacation appropriate
to the student’s course, if that vacation does not form part of the student’s period of
study, from the date on which the change occurred up to the end of that vacation.
PART 11
SUPPLEMENTARY PROVISIONS
CHAPTER 1
Miscellaneous
Waiting days
144.—(1) A claimant is not entitled to an employment and support allowance in
respect of 3 days at the beginning of a period of limited capability for work.
(2)  Paragraph (1) does not apply where–
(a)
the claimant’s entitlement to an employment and support allowance
commences within 12 weeks of the claimant’s entitlement to income support,
Words substituted in
state pension credit, a jobseeker’s allowance, a carer’s allowance ̈1, statutory
reg. 144(2)(a) by reg.
sick pay or a maternity allowancė coming to an end;
9(1)(a) of S.I. 2008/
2428 as from 27.10.08.
(b)
the claimant is terminally ill and has–
(i) made a claim expressly on the ground of being terminally ill; or
(ii) made an application for supersession or revision in accordance with the
Social Security and Child Support (Decisions and Appeals) Regulations
1999(a) which contains an express statement of being terminally ill; or
( a ) S.I. 1999/991.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 144-145
(c)
the claimant has been discharged from being a member of Her Majesty’s
forces and 3 or more days immediately before that discharge were days of
sickness absence from duty, which are recorded by the Secretary of State for
Defence; ̈1, or
1Word or added to para.
(2)(c) and sub-para. (d)
(d)
the claimant is the other member of a couple to whom regulation 41(2) of the
added by reg. 9(1)(b) of
Social Security (Claims and Payments) Regulations 1987(a) applies and the
S.I. 2008/2428 as from
former claimant was not entitled to an employment and support allowance
2 7 . 1 0 . 0 8 .
in respect of 3 days at the beginning of the period of limited capability for
work which relates to the former claimant’s entitlement.̇
Linking rules
145.—(1)  Any period of limited capability for work which is separated from another
such period by not more than 12 weeks is to be treated as a continuation of the earlier
period.
(2)  Where the claimant is a work or training beneficiary in accordance with
regulation 148, any period of limited capability for work which is separated from
another such period by not more than 104 weeks is to be treated as a continuation of
the earlier period.
(3)  Where the claimant claims an employment and support allowance after ceasing
to be in qualifying remunerative work and–
(a)
the period of limited capability for work began on the day immediately after
the day on which the claimant so ceased;
(b)
the claimant has been entitled to an employment and support allowance
within the period of 104 weeks before the beginning of that period of limited
capability for work; and
(c)
the claimant satisfied the relevant tax credit conditions set out in paragraph
(4) on the day before so ceasing,
the claimant is to be treated for the purposes of the claim as having had limited
capability for work throughout the period during which those conditions were satisfied.
(4) A claimant satisfies the relevant tax credit conditions on a day if–
(a)
the claimant is entitled for the day to the disability element of working tax
credit (on a claim made by the claimant or by the claimant jointly with
another) or would be so entitled but for the fact that the relevant income
(within the meaning of Part 1 of the Tax Credits Act) in the case of the
claimant or the claimant and another is such that that person is not so entitled;
and
(b)
either working tax credit or any element of child tax credit other than the
family element is paid in respect of the day on such a claim.
(5)  Where a claim for an employment and support allowance is made after the
claimant ceases to be engaged in training and–
(a)
that claimant was entitled to an employment and support allowance within
the period of 8 weeks immediately before becoming so engaged;
(b)
that claimant has limited capability for work on the day after ceasing to be
so engaged; and
(c)
that day falls not later than the end of the period of 104 weeks beginning
with the end of the last week for which the claimant was entitled to an
employment and support allowance,
the claimant is to be treated, for the purposes of the claim, as having had limited
capability for work for the period when so engaged in training.
( a ) S.I. 1987/1968. Regulation 4I(2) was inserted by S.I. 2008/1554.
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 146-147
Advance awards
146.—(1) Where section 5 of the Act (advance award of income-related allowance)
applies to a claim and the claimant satisfies the conditions in paragraph (3)–
(a)
the claim is to be treated as if made for a period from the relevant day; and
(b)
the Secretary of State may award an employment and support allowance
from the relevant day.
(2) In this regulation the “relevant day” is the day after the end of a period of 13
weeks beginning on the first day on which the claimant would be entitled to an
income-related allowance if the claimant satisfied the condition in paragraph 6(1)(a)
of Schedule 1 to the Act.
(3) The conditions are that–
(a)
the Secretary of State is of the opinion that unless there is a change of
circumstances the claimant will satisfy the conditions set out in section
1(3)(b) to (f) of, and Part 2 of Schedule 1 to, the Act when an income-related
allowance becomes payable under the award; and
(b)
the claimant is treated as having limited capability for work under regulation
1Words in reg. 146(3)(b)
20, 25, 26, ̈130̇ or 33(2) (conditions for treating a person as having limited
substituted by reg. 9(2)
capability for work) for the period before an income-related allowance
of S.I. 2008/2428 as
becomes payable under the award.
f r o m   2 7 . 1 0 . 0 8 .
(4)  Where an award is made under paragraph (1)–
(a)
the award for an employment and support allowance will become payable
on the date on which the claimant would have been entitled to a main phase
employment and support allowance if the claimant had satisfied the condition
in paragraph 6(1)(a) of Schedule 1 to the Act before the relevant day;
(b)
sections 4(4)(a) and 4(5)(a) of the Act do not apply to that award.
Recovery orders
147.—(1)  Where an award of income-related allowance has been made to a claimant,
the Secretary of State may apply to the court for a recovery order against the claimant’s
partner.
(2) On making a recovery order the court may order the partner to pay such amount
at such intervals as it considers appropriate, having regard to all the circumstances of
the partner and, in particular, the partner’s income.
(3)  Except in Scotland, a recovery order is to be treated for all purposes as if it were
a maintenance order within the meaning of section 150(1) of the Magistrates Courts
Act 1980(a).
(4)  Where a recovery order requires the partner to make payments to the Secretary
of State, the Secretary of State may, by giving notice in writing to the court which
made the order, the liable person and the claimant, transfer to the claimant the right to
receive payments under the order and to exercise the relevant rights in relation to the
order.
(5) In paragraph 4, “the relevant rights” means, in relation to a recovery order, the
right to bring any proceedings, take any steps or do any other thing under or in
relation to the order.
( a ) 1980 c. 43. The definition in section 150(1) was inserted by the Family Law Reform Act
1987 (c. 42), section 33(1) and Schedule 2, paragraph 88.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Regs. 148-150
CHAPTER 2
Work or training beneficiaries
Work or training beneficiaries
148.—(1) Subject to paragraph (2), a claimant is a “work or training beneficiary”
on any day in a linking term where the claimant–
(a)
had limited capability for work for more than 13 weeks in the most recent
past period of limited capability for work;
(b)
ceased to be entitled to an allowance or advantage at the end of that most
recent past period of limited capability for work; and
(c)
became engaged in work or training within one month of so ceasing to be
entitled to that benefit at the end of that most recent past period of limited
capability for work.
(2) A claimant is not a work or training beneficiary if–
(a)
the most recent past period of limited capability for work was ended by a
determination that the claimant did not have limited capability for work;
and
(b)
that determination was on the basis of a limited capability for work
assessment.
(3)  For the purposes of this Part–
“allowance or advantage” means any allowance or advantage under the Act or the
Contributions and Benefits Act for which entitlement is dependent on limited
capability for work;
“linking term” means a period of 104 weeks from the first day immediately
following the last day in a period of limited capability for work;
“work” means work, other than work under regulation 45 (exempt work), for which
payment is made or which is done in expectation of payment.
Linking rules – limited capability for work
149.—(1) Where the circumstances in paragraph (2) apply, a work or training
beneficiary is to be treated as having limited capability for work for a period of 13
weeks beginning on the day within the linking term on which the work or training
beneficiary claims an employment and support allowance.
(2) The circumstances are that–
(a)
the work or training beneficiary provides evidence of limited capability for
work in accordance with the Medical Evidence Regulations (which prescribe
the form of the doctor’s statement or other evidence required in each case);
and
(b)
in the most recent past period of limited capability for work, it had been
determined that the work or training beneficiary had limited capability for
work–
(i) the claimant having been assessed in accordance with a limited capability
for work assessment; or
(ii) as a result of the claimant being treated as having limited capability for
work in accordance with regulation 20, 25, 26, 29 or 33(2) (persons to be
treated as having limited capability for work).
Linking rules – limited capability for work-related activity
150.  Where a work or training beneficiary was a member of the support group when
the most recent past period of limited capability for work came to an end, that work or
training beneficiary is to be treated as having limited capability for work-related
activity for a period of 13 weeks beginning on the day within the linking term on
which a claim for an employment and support allowance is made.
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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 151-154
CHAPTER 3
Temporary absence from Great Britain
Absence from Great Britain
151.—(1) A claimant who is entitled to an employment and support allowance is to
continue to be so entitled during a period of temporary absence from Great Britain
only in accordance with this Chapter.
(2) A claimant who continues to be entitled to a contributory allowance during a
period of temporary absence will not be disqualified for receiving that allowance
during that period under section 18(4) of the Act.
Short absence
152.  A claimant is to continue to be entitled to an employment and support
allowance during the first 4 weeks of a temporary absence from Great Britain if–
(a)
the period of absence is unlikely to exceed 52 weeks; and
(b)
while absent from Great Britain, the claimant continues to satisfy the other
conditions of entitlement to that employment and support allowance.
Absence to receive medical treatment
153.—(1) A claimant is to continue to be entitled to an employment and support
allowance during the first 26 weeks of a temporary absence from Great Britain if–
(a)
the period of absence is unlikely to exceed 52 weeks;
(b)
while absent from Great Britain, the claimant continues to satisfy the other
conditions of entitlement to that employment and support allowance;
(c)
the claimant is absent from Great Britain solely–
(i) in connection with arrangements made for the treatment of the claimant
for a disease or bodily or mental disablement directly related to the
claimant’s limited capability for work which commenced before leaving
Great Britain; or
(ii) because the claimant is accompanying a dependent child in connection
with arrangements made for the treatment of that child for a disease or
bodily or mental disablement;
(d)
those arrangements relate to treatment–
(i) outside Great Britain;
(ii) during the period whilst the claimant is temporarily absent from Great
Britain; and
(iii) by, or under the supervision of, a person appropriately qualified to carry
out that treatment; and
(e)
before leaving Great Britain the claimant sought and received the permission
of the Secretary of State to do so.
(2) In paragraph (1)(d)(iii), “appropriately qualified” means qualified to provide
medical treatment, physiotherapy or a form of treatment which is similar to, or related
to, either of those forms of treatment.
Absence in order to receive NHS treatment
154.   A claimant is to continue to be entitled to an employment and support
allowance during any period of temporary absence from Great Britain if–
(a)
while absent from Great Britain, the claimant continues to satisfy the other
conditions of entitlement to that employment and support allowance;
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Regs. 154-156
(b)
that period of temporary absence is for the purpose of the claimant receiving
treatment at a hospital or other institution outside Great Britain where the
treatment is being provided–
(i) under section 6(2) of the Health Service Act (Performance of functions
outside England) or section 6(2) of the Health Service (Wales) Act
(Performance of functions outside Wales);
(ii) pursuant to arrangements made under section 12(1) of the Health Service
Act (Secretary of State’s arrangements with other bodies), section 10(1)
of the Health Service (Wales) Act (Welsh Ministers’ arrangements with
other bodies), paragraph 18 of Schedule 4 to the Health Service Act (Joint
exercise of functions) or paragraph 18 of Schedule 3 to the Health Service
(Wales) Act (Joint exercise of functions); or
(iii) under any equivalent provision in Scotland or pursuant to arrangements
made under such provision; and
(c)
before leaving Great Britain the claimant sought and received the permission
of the Secretary of State to do so.
Absence of member of family of member of Her Majesty’s forces
155.—(1) A claimant is to continue to be entitled to an employment and support
allowance during any period of temporary absence from Great Britain if–
(a)
the claimant is a member of the family of a member of Her Majesty’s forces
and temporarily absent from Great Britain by reason only of the fact that the
claimant is living with that member; and
(b)
before leaving Great Britain the claimant sought and received the permission
of the Secretary of State to do so.
(2) In this regulation “member of the family of a member of Her Majesty’s forces”
means the spouse, civil partner, son, daughter, step-son, step-daughter, father, father-
in-law, step-father, mother, mother-in-law or step-mother of such a member.
CHAPTER 4
Membership of household
Circumstances in which a person is to be treated as being or not being a member of
the household
156.—(1) Subject to the following provisions of this regulation–
(a)
the claimant and the claimant’s partner; and
(b)
where the claimant or the claimant’s partner is responsible for a child or
young person, that child or young person and any child of that child or
young person,
are to be treated as being members of the same household.
(2)  Paragraph (1) applies even where any of them is temporarily living away from
the other members of the family.
(3) Paragraph (1) does not apply to a person who is living away from the other
members of the family where–
(a)
that person does not intend to resume living with the other members of the
family; or
(b)
that person’s absence from the other members of the family is likely to
exceed 52 weeks, unless there are exceptional circumstances (for example
where the person is in hospital or otherwise has no control over the length of
absence), and the absence is unlikely to be substantially more than 52 weeks.
(4)  Paragraph (1) does not apply in respect of any member of a couple or of a
polygamous marriage where–
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(a)
one, both or all of them are patients detained in a hospital provided under
section 4 of the Health Service Act (high security psychiatric services),
section 4 of the Health Service (Wales) Act (high security psychiatric
services) or section 102 of the National Health Service (Scotland) Act 1978(a)
(state hospitals);
(b)
one, both or all of them are–
(i) detained in custody pending trial or sentence upon conviction or under
a sentence imposed by a court; or
(ii) on temporary release in accordance with the provisions of the Prison Act
1952(b) or the Prisons (Scotland) Act 1989(c);
(c)
the claimant is abroad and does not satisfy the conditions of Chapter 4 of
this Part (temporary absence from Great Britain); or
(d)
any one of them is permanently residing in a care home, an Abbeyfield
Home or an independent hospital.
(5) A child or young person is not to be treated as a member of the claimant’s
household where that child or young person is–
(a)
placed with the claimant or the claimant’s partner by a local authority under
section 23(2)(a) of the Children Act 1989(d) or by a voluntary organisation
under section 59(1)(a) of that Act(e);
(b)
placed with the claimant or the claimant’s partner prior to adoption;
(c)
in accordance with a relevant enactment, boarded out with the claimant or
the claimant’s partner, whether or not with a view to adoption; or
(d)
placed for adoption with the claimant or the claimant’s partner pursuant to a
1Words in reg. 156(5)(d)
decision under the ̈1Adoption and Children Act 2002(f)̇ or the Adoption
substituted by reg. 9(3)
Agencies (Scotland) Regulations 1996(g).
of S.I. 2008/2428 as
f r m   2 7 . 1 0 . 0 8 .
(6)  Subject to paragraphs (7) and (8), paragraph (1) does not apply to a child or
young person who is not living with the claimant and who–
(a)
in a case which does not fall within sub-paragraph (b), has been continuously
absent from Great Britain for a period of more than four weeks commencing–
(i) where that child or young person went abroad before the date of the
claim for an employment and support allowance, on the date of that
claim;
(ii) in  any other case, on the day which immediately follows the day on
which that child or young person went abroad;
(b)
where regulation 153 (absence to receive medical treatment) applies, has
been continuously absent from Great Britain for a period of more than 26
weeks, that period commencing–
(i) where that child or young person went abroad before the date of the
claim for an employment and support allowance, on the date of that
claim;
(ii) in  any other case, on the day which immediately follows the day on
which that child or young person went abroad;
(c)
has been an in-patient or in accommodation for a continuous period of more
than 12 weeks commencing–
(i) where that child or young person became an in-patient or, as the case
may be, entered that accommodation, before the date of the claim for an
employment and support allowance, with that date; or
( a ) 1978 c. 29.
( b ) 1952 c. 52.
( c ) 1989 c. 45.
( d ) 1989 c. 41. Section 23(2)(a) was amended by section 49(3) of the Children Act 2004 (c.
3 1 ) .
( e ) Section 59(1)(a) was amended by section 49(4) of the Children Act 2004 (c. 31).
( f ) 2002 c. 38.
( g ) S.I. 1996/3266.
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(ii) in  any other case, with the date on which that child or young person
became an in-patient or entered that accommodation,
and, in either case, has not been in regular contact with either the claimant
or any member of the claimant’s household;
(d)
is being looked after by, or in the care of, a local authority under a relevant
enactment;
(e)
has been placed with a person other than the claimant prior to adoption;
(f)
has been boarded out under a relevant enactment with a person other than
the claimant prior to adoption;
(g)
has been placed for adoption pursuant to a decision under the ̈1Adoption
1Words in reg. 156(6)(g)
and Children Act 2002(a)̇ or the Adoption Agencies (Scotland) Regulations
substituted by reg. 9(3)
1996; or
of S.I. 2008/2428 as
f r o m   2 7 . 1 0 . 0 8 .
(h)
is detained in custody pending trial or sentence upon conviction or under a
sentence imposed by a court.
(7)  Sub-paragraphs (a)(i), (b)(i) and (c)(i) of paragraph (6) do not apply in a case
where immediately before the date of claim for an employment and support allowance
the claimant was entitled to an income-based jobseeker’s allowance or income support.
(8)  A child or young person to whom any of the circumstances mentioned in sub-
paragraphs (d) or (h) of paragraph (6) applies is to be treated as being a member of the
claimant’s household only for that part of any benefit week where that child or young
person lives with the claimant.
(9) In this regulation–
“accommodation” means accommodation provided by a local authority in a home
owned or managed by that local authority–
(a) under sections 21 to 24 of the National Assistance Act 1948(b) (provision
of accommodation);
(b) in Scotland, under section 13B or 59 of the Social Work (Scotland) Act
1968(c) (provision of residential or other establishment); or
(c) under section 25 of the Mental Health (Care and Treatment) (Scotland)
Act 2003(d) (care and support services etc.),
where the accommodation is provided for a person whose stay in that
accommodation has become other than temporary; and
“voluntary organisation” has the meaning assigned to it in the Children Act 1989,
or in Scotland, by section 94 of the Social Work (Scotland) Act 1968.
(10)  For the purposes of these Regulations a person is responsible for a child or
young person if that child or young person usually lives with that person.
PART 12
 DISQUALIFICATION
Disqualification for misconduct etc.
157.—(1)  Subject to paragraph (3), paragraph (2) applies where a claimant–
(a)
has limited capability for work through the claimant’s own misconduct,
except in a case where the limited capability is due to pregnancy or a sexually
transmitted disease; or
(b)
fails without good cause to attend for or submit to medical or other treatment
(excluding vaccination, inoculation or major surgery) recommended by a
doctor with whom, or a hospital or similar institution with which, the claimant
( a ) 2002 c. 38.
( b ) 1948 c. 29.
( c ) 1968 c. 49.
( d ) 2003 asp 13.
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is undergoing medical treatment, which would be likely to remove the
limitation on the claimant’s capability for work;
(c)
fails without good cause to refrain from behaviour calculated to retard the
claimant’s recovery; or
(d)
is, without good cause, absent from the claimant’s place of residence without
leaving word with the Secretary of State where the claimant may be found.
(2) A claimant referred to in paragraph (1) is to be disqualified for receiving an
employment and support allowance for such period not exceeding 6 weeks as the
Secretary of State may determine.
(3)  Paragraph (1) does not apply where the claimant–
(a)
is disqualified for receiving an employment and support allowance by virtue
of regulations made under section 7 of the Social Security Fraud Act 2001(a);
or
(b)
is a person in hardship.
Meaning of “person in hardship”
158.—(1) A claimant is a “person in hardship” if the claimant–
(a)
has informed the Secretary of State of the circumstances on which the
claimant relies to establish that fact; and
(b)
falls within paragraph (2), (3) or (5).
(2) A claimant falls within this paragraph if–
(a)
she is pregnant;
(b)
a member of the claimant’s family is pregnant;
(c)
the claimant is a single claimant aged less than 18; or
(d)
 the claimant is a member of a couple and both members are aged less than
18.
(3)  Subject to paragraph (4), the claimant falls within this paragraph if the claimant
or the claimant’s partner–
(a)
is responsible for a child or young person who is a member of the claimant’s
household;
(b)
has been awarded an attendance allowance or the care component;
(c)
has claimed either attendance allowance or disability living allowance and
the claim has not been determined;
(d)
devotes a considerable portion of each week to caring for another person
who–
(i) has been awarded an attendance allowance or the care component; or
(ii) has  claimed either attendance allowance or disability living allowance
and the claim has not been determined; or
(e)
is aged 60 or more.
(4) A claimant to whom paragraph (3)(c) or (3)(d)(ii) applies is a person in hardship
only for 26 weeks from the date of the claim unless the claimant is a person in hardship
under another provision of this regulation.
(5)  The claimant falls within this paragraph where the Secretary of State is satisfied,
having regard to all the circumstances and, in particular, the matters set out in paragraph
(6), that unless an employment and support allowance is paid, the claimant, or a
member of the claimant’s family, will suffer hardship.
(6)  The matters referred to in paragraph (5) are–
(a)
the resources which are likely to be available to the claimant and the
claimant’s family and the length of time for which they might be available;
and
( a ) 2001 c. 11.
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(b)
whether there is a substantial risk that essential items, including food,
clothing and heating, will cease to be available to the claimant or a member
of the claimant’s family, or will be available at considerably reduced levels
and the length of time for which this might be so.
(7) In this regulation “care component” means the care component of disability
living allowance at the highest or middle rate prescribed under section 72(3) of the
Contributions and Benefits Act.
Treating a claimant as not having limited capability for work
159.—(1)  Subject to paragraph (2), the claimant is to be treated as not having
limited capability for work if the claimant is disqualified for receiving a contributory
allowance during a period of imprisonment or detention in legal custody if that
disqualification is for more than 6 weeks.
(2)  Where the claimant is entitled to an amount under paragraph 3 of Schedule 5
(special cases: prisoners) during a period of imprisonment or detention in legal custody,
the claimant is to be treated as not having limited capability for work from the day
after the day on which entitlement ended.
Exceptions from disqualification for imprisonment
160.—(1)  Notwithstanding section 18(4)(b) of the Act, a claimant is not disqualified
for receiving a contributory allowance for any period during which that claimant is
undergoing imprisonment or detention in legal custody–
(a)
in connection with a charge brought or intended to be brought against the
claimant in criminal proceedings;
(b)
pursuant to any sentence; or
(c)
pursuant to any order for detention,
made by a court in such proceedings, unless paragraph (2) applies.
(2) This paragraph applies where–
(a)
a penalty is imposed on the claimant at the conclusion of the proceedings
referred to in paragraph (1); or
(b)
in the case of default of payment of a sum adjudged to be paid on conviction
a penalty is imposed in respect of such default.
(3)  Notwithstanding section 18(4)(b) of the Act, a claimant is not to be disqualified
for receiving a contributory allowance, for any period during which the claimant is
undergoing detention in legal custody after the conclusion of criminal proceedings if
it is a period during which the claimant is liable to be detained in a hospital or similar
institution in Great Britain as a person suffering from mental disorder unless–
(a)
the claimant is detained or liable to be detained under section 45A of the
Mental Health Act 1983(a) (hospital and limitation directions) or section
59A of the Criminal Procedure (Scotland) Act 1995(b) (hospital direction);
or
(b)
the claimant is detained or liable to be detained under section 47 of the
Mental Health Act 1983(c) (removal to hospital of persons serving sentences
of imprisonment, etc.) ̈1̇; or
1Words in reg. 160(3)(b)
omitted by reg. 10 of
(c)
section 136 of the Mental Health (Care and Treatment) (Scotland) Act 2003
S.I. 2008/2428 as from
(transfer of prisoners for treatment for mental disorder).
2 7 . 1 0 . 0 8 .
( a ) 1983 c. 20. Section 45A was inserted by the Crime (Sentences) Act 1997 (c. 43), section 46
and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39
and Schedule 37, Part 7.
( b ) 1995 c. 46. Section 59A was inserted by the Mental Health (Care and Treatment) (Scotland)
Act 2003 (asp. 13), Schedule 4, paragraph 8(6).
( c ) Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).
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(4)  Where–
(a)
paragraph (3)(a) or (b) applies, in relation to a claimant; and
(b)
a certificate given by or on behalf of the Secretary of State or Scottish
Ministers shows the earliest date on which that claimant would have been
expected to be discharged from detention under the sentence or order if the
claimant had not been transferred to a hospital or similar institution,
those paragraphs are to be treated as not satisfied in relation to that claimant from the
day following that date.
(5)  For the purposes of this regulation–
(a)
“court” means any court in the United Kingdom, the Channel Islands or the
Isle of Man or in any place to which the Colonial Prisoners Removal Act
1884(a) applies or any naval court-martial, army court-martial or air force
court-martial within the meaning of the Courts-Martial (Appeals) Act 1968(b)
or the Courts-Martial Appeal Court;
(b)
“hospital or similar institution” means any place (not being a prison, a
young offender institution, a secure training centre, secure accommodation
in a children’s home or a remand centre, and not being at or in any such
place) in which persons suffering from mental disorder are or may be received
for care or treatment;
(c)
“penalty” means a sentence of imprisonment or detention under section 90
or 91 of the Powers of Criminal Courts (Sentencing) Act 2000(c), a detention
and training order under section 100 of that Act, a sentence of detention for
public protection under section 226 of the Criminal Justice Act 2003(d) or
an extended sentence under section 228 of that Act or, in Scotland, under
section 205, 207 or 208 of the Criminal Procedure (Scotland) Act 1995;
(d)
in relation to a person who is liable to be detained in Great Britain as a result
of any order made under the Colonial Prisoners Removal Act 1884, references
to a prison must be construed as including references to a prison within the
meaning of that Act;
(e)
criminal proceedings against any person must be deemed to be concluded
upon that person being found insane in those proceedings so that the person
cannot be tried or that person’s trial cannot proceed.
(6)  Where a claimant outside Great Britain is undergoing imprisonment or detention
in legal custody and, in similar circumstances in Great Britain, the claimant would, by
virtue of this regulation, not have been disqualified for receiving a contributory
allowance, the claimant is not disqualified for receiving that allowance by reason
only of the imprisonment or detention.
Suspension of payment of a contributory allowance during imprisonment
161.—(1)  Subject to the following provisions of this regulation, the payment of a
contributory allowance to any claimant–
(a)
which is excepted from the operation of section 18(4)(b) of the Act by virtue
of the provisions of regulation 160(2), (3) or (6); or
(b)
which is payable otherwise than in respect of a period during which the
claimant is undergoing imprisonment or detention in legal custody,
is suspended while that claimant is undergoing imprisonment or detention in legal
custody.
( a ) 1884 c. 31.
( b ) 1968 c. 20.
( c ) 2000 c. 6. Section 90 was amended by the Criminal Justice and Court Services Act 2000 (c.
43), section 60(2) and (3).
( d ) 2003 c. 44.
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(2) A contributory allowance is not to be suspended while the claimant is liable to
be detained in a hospital or similar institution, as defined in regulation 160(5), during
a period for which in the claimant’s case, the allowance is or would be excepted from
the operation of section 18(4)(b) by virtue of the provisions of regulation 160(3).
(3)  Where, by virtue of this regulation, payment of a contributory allowance is
suspended for any period, the period of suspension is not to be taken into account in
calculating any period under the provisions of regulation 38 of the Social Security
(Claims and Payments) Regulations 1987(a) (extinguishment of right to sums payable
by way of benefit which are not obtained within the prescribed time).
PART 13
URGENT CASES
Urgent cases
162.—(1)  In a case to which this regulation applies a claimant’s weekly applicable
amount and that claimant’s income and capital are to be calculated in accordance with
the following provisions of this Part.
(2)  Subject to paragraph (3), this regulation applies to a claimant who is treated as
possessing income under regulation 107(1) (notional income).
(3)  This regulation is only to apply to a claimant to whom paragraph (2) applies,
where the income that claimant is treated as possessing by virtue of regulation 107(1)
is not readily available to that claimant; and–
(a)
the amount of an income-related allowance which would be payable but for
this Part is less than the amount of an income-related allowance payable by
virtue of the provisions of this Part; and
(b)
the Secretary of State is satisfied that, unless the provisions of this Part are
applied to the claimant, the claimant or the claimant’s family will suffer
hardship.
Applicable amounts in urgent cases
163.   For the purposes of calculating any entitlement to an income-related allowance
under this Part–
(a)
except in a case to which sub-paragraph (b) or (c) applies, a claimant’s weekly
applicable amount is to be the aggregate of–
(i) 90% of the amount applicable in respect of himself or herself or, if the
claimant is a member of a couple or of a polygamous marriage, of the
amount applicable in respect of both of them under paragraph 1(1), (2) or
(3) of Schedule 4 or, as the case may be, the amount applicable in respect
of them under regulation 68 (polygamous marriages);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4 (premiums);
(iii) the amount, if applicable, specified in Part 4 of Schedule 4 (components);
and
(iv) any amounts applicable under regulation 67(1)(c) or, as the case may be,
68(1)(d) (housing costs);
(b)
in the case of a claimant to whom any paragraph of Schedule 5 (special
cases) applies, the applicable amount is to be the aggregate of–
(i) 90% of the amount applicable in column 2 of that Schedule in respect of
the claimant and partner (if any);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4;
(iii) the amount, if applicable, specified in Part 4 of Schedule 4; and
( a ) S.I. 1987/1968.
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(iv) any amounts applicable under regulation 67(1)(c) or, as the case may be,
68(1)(d); or
(c)
in the case of a claimant to whom regulation 162(2) applies, where that
claimant is appealing to an appeal tribunal constituted under Chapter 1 of
Part 1 of the Social Security Act 1998, against a decision which embodies a
determination that the claimant does not have limited capability for work,
the applicable amount is to be the aggregate of–
(i) 90% of the amount applicable in respect of himself or herself or, if the
claimant is a member of a couple or of a polygamous marriage, of the
amount applicable in respect of both of them under paragraph 1(1), (2) or
(3) of Schedule 4 or, as the case may be, the amount applicable in respect
of them under regulation 68 (polygamous marriages);
(ii) the amount, if applicable, specified in Part 2 of Schedule 4 (premiums);
and
(iii) any amounts applicable under regulation 67(1)(c) or, as the case may be,
68(1)(d).
Assessment of income and capital in urgent cases
164.—(1) The claimant’s income is to be calculated in accordance with Part 10
subject to the following modifications–
(a)
any income other than–
(i) a payment of income or income in kind made under the Macfarlane Trust,
the Macfarlane (Special Payments) Trust, the Macfarlane (Special
1Words in reg.
Payments) (No. 2) Trust, the Fund, the Eileen Trust or ̈1the Independent
164(1)(a)(i) substituted
Living Fund (2006)̇; or
and words omitted in
(ii) income to which paragraph 9 (but only to the extent that a concessionary
para. (2)(c) by reg.
11(a) & (b) of S.I.
payment would be due under that paragraph for any non-payment of an
2008/2428 as  from
income-related allowance under regulation 162 (urgent cases) or of
2 7 . 1 0 . 0 8 .
jobseeker’s allowance under regulation 147 of the Jobseeker’s Allowance
Regulations (urgent cases)), 35, 41(2), (3) or (4), 42, 64 or 65 of Schedule
8 (disregard of income other than earnings) applies,
possessed or treated as possessed by the claimant, is to be taken into account
in full notwithstanding any provision in that Part disregarding the whole or
any part of that income;
(b)
any income to which regulation 118 (calculation of tariff income from capital)
applies is to be disregarded;
(c)
income treated as capital by virtue of regulation 112(1), (2), (3) and (7)
(income treated as capital) is to be taken into account as income;
(d)
in a case to which regulation 162(2) (urgent cases) applies, any income to
which regulation 107(1) applies is to be disregarded.
(2) The claimant’s capital calculated in accordance with Part 10, but including any
capital referred to in–
(a)
paragraph 3;
(b)
to the extent that such assets as are referred to in paragraph 10 consist of
liquid assets, paragraph 10;
(c)
except to the extent that the arrears referred to in paragraph 11 consist of
arrears of housing benefit payable under ̈1̇ Part 7 of the Contributions and
Benefits Act or any arrears of benefit due under regulation 162, or regulation
147 of the Jobseeker’s Allowance Regulations (urgent cases), paragraph 11;
and
(d)
paragraphs 13(b), 24 and 32,
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of Schedule 9 (capital to be disregarded), are to be taken into account in full and the
amount of an income-related allowance which would, but for this paragraph be payable
under this regulation, is to be payable only to the extent that it exceeds the amount of
that capital.
PART 14
PERIODS OF LESS THAN A WEEK
Entitlement for less than a week – amount of an employment and support allowance
payable
165.—(1)  This regulation applies where the claimant is entitled to an employment
and support allowance for a part-week and is subject to the following provisions of
this Part.
(2)  The amount payable by way of an income-related allowance in respect of that
part-week is to be calculated by applying the formula–
(a)
where the claimant has no income–
(NxA)
    7
or
(b)
where the claimant has an income–
Nx(A-I) - B
    7
where–
A is the claimant’s weekly applicable amount in the relevant week;
B is the amount of any employment and support allowance, jobseeker’s allowance,
income support, maternity allowance, incapacity benefit or severe disablement
allowance payable to the claimant or the claimant’s partner in respect of any day
in the part-week;
I is the claimant’s weekly income in the relevant week; and
N is the number of days in the part week.
(3) The amount payable by way of a contributory allowance in respect of a part-
week is to be calculated by applying the formula–
(NxX) - Y
       7
where–
X is the amount calculated in accordance with section 2(1) of the Act;
Y is the amount of any widow’s benefit, widowed parent’s allowance, bereavement
allowance, training allowance, carer’s allowance and any increase in disablement
pension payable in accordance with Part 1 of Schedule 7 to the Contributions and
Benefits Act (Unemployability Supplement) payable in respect of any day in the
part-week;
N is the number of days in the part-week.
(4) In this Part–
“part-week” means an entitlement to an employment and support allowance in
respect of any period of less than a week;
“relevant week” means the period of 7 days determined in accordance with
regulation 166.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5317

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Regs. 166-168
Relevant week
166.—(1)  Where a part-week–
(a)
is the whole period for which an employment and support allowance is
payable, or occurs at the beginning of an award, the relevant week is the
period of 7 days ending on the last day of that part-week; or
(b)
occurs at the end of an award, the relevant week is the period of 7 days
beginning on the first day of the part-week.
(2)  Where a claimant has an award of an employment and support allowance and
that claimant’s benefit week changes, for the purpose of calculating the amounts of an
employment and support allowance payable for the part-week beginning on the day
after the last complete benefit week before the change and ending immediately before
the change, the relevant week is the period of 7 days beginning on the day after the
last complete benefit week.
Modification in the calculation of income
167.  For the purposes of regulation 165 (entitlement for less than a week – amount
of an employment and support allowance payable), a claimant’s income and, in
determining the amount payable by way of an income-related allowance, the income
of any person which the claimant is treated as possessing under regulations made
under section 17(3) of the Act, regulation 68 (polygamous marriages) or regulation 83
(calculation of income and capital of members of claimant’s family and of a polygamous
marriage), is to be calculated in accordance with Parts 10 (income and capital) and 13
(urgent cases) subject to the following changes–
(a)
any income which is due to be paid in the relevant week is to be treated as
paid on the first day of that week;
(b)
in determining the amount payable by way of an income-related allowance,
any jobseeker’s allowance, employment and support allowance, income
support, maternity allowance, incapacity benefit or severe disablement
allowance payable in the relevant week but not in respect of any day in the
part-week is to be disregarded;
(c)
the amount referred to as B in regulation 165(2) is to be disregarded;
(d)
in determining the amount payable by way of a contributory allowance, any
widow’s benefit, training allowance, widowed parent’s allowance,
bereavement allowance, carer’s allowance and any increase in disablement
pension payable in accordance with Part 1 of Schedule 7 to the Contributions
and Benefits Act (unemployability supplement) which is payable in the
relevant week but not in respect of any day in the part-week is to be
disregarded;
(e)
where the part-week occurs at the end of the claim–
(i) any income; or
(ii) any change in the amount of income of the same kind,
which is first payable within the relevant week but not on any day in the
part-week is to be disregarded;
(f)
where only part of the weekly balance of income is taken into account in the
relevant week, the balance is to be disregarded.
Reduction in certain cases
168.   The reduction to be made in accordance with regulations 157 and 158 is an
amount equal to one seventh of the reduction which would be made under those
regulations for a week, multiplied by the number of days in a part-week.
13.5318
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Reg. 169
Payment of a contributory allowance for days of certain regular treatment
169.—(1)  Where a claimant is entitled to a contributory allowance as a result of
being treated as having limited capability for work in accordance with regulation 26
the amount payable is to be equal to one seventh of the amount of the contributory
allowance which would be payable in respect of a week in accordance with section
2(1) of the Act multiplied by N.
(2) In paragraph (1), N is the number of days in that week on which the claimant was
receiving treatment referred to in regulation 26 or recovering from that treatment, but
does not include any day during which the claimant does work.
Signed by the authority of the Secretary of State for Work and Pensions.
Stephen. C. Timms
Minister of State,
25th March 2008
Department for Work and Pensions
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5319

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 1
SCHEDULE 1                                              Regulation 2(2)
HER MAJESTY’S FORCES
PART 1
PRESCRIBED ESTABLISHMENTS AND ORGANISATIONS
1.  Any of the regular naval, military or air forces of the Crown.
2.  Royal Fleet Reserve.
3.  Royal Navy Reserve.
4.  Royal Marines Reserve.
5.  Army Reserve.
6.  Territorial Army.
7.  Royal Air Force Reserve.
8.  Royal Auxiliary Air Force.
9.  The Royal Irish Regiment, to the extent that its members are not members of any
         force falling within paragraph 1.
PART 2
ESTABLISHMENTS AND ORGANISATIONS OF WHICH HER MAJESTY’S
FORCES DO NOT CONSIST
10.  Her Majesty’s forces are not to be taken to consist of any of the establishments
or organisations specified in Part 1 of this Schedule by virtue only of the employment
in such establishment or organisation of the following persons–
(a)
any person who is serving as a member of any naval force of Her Majesty’s
forces and who (not having been an insured person under the National
Insurance Act 1965(a) and not having been a contributor under the Social
Security Act 1975(b) or not being a contributor under the Contributions and
Benefits Act) locally entered that force at an overseas base;
(b)
any person who is serving as a member of any military force of Her Majesty’s
forces and who entered that force, or was recruited for that force outside the
United Kingdom, and the depot of whose unit is situated outside the United
Kingdom;
(c)
any person who is serving as a member of any air force of Her Majesty’s
forces and who entered that force, or was recruited for that force, outside the
United Kingdom, and is liable under the terms of engagement to serve only
in a specified part of the world outside the United Kingdom.
( a ) 1965 c. 51.
( b ) 1975 c. 14.
13.5320
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
SCHEDULE 2               Regulation 19(2) and (3)
ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK
PART 1
PHYSICAL DISABILITIES
(1)
(2)
(3)
Activity
Descriptors
Points
1.
Walking with a walking stick or
1 (a)
Cannot walk at all.
15
other aid if such aid is normally
used.
(b)
Cannot walk more
15
than 50 metres on level
ground without
repeatedly stopping or
severe discomfort.
(c)
Cannot walk up or down
15
two steps even with the
support of a handrail.
(d)
Cannot walk more than
9
100 metres on level ground
without stopping or severe
discomfort.
(e)
Cannot walk more than
6
200 metres on level ground
without stopping or severe
discomfort.
(f)
None of the above apply.
0
2.
Standing  and  sitting.
2 (a)
Cannot stand for more
15
than 10 minutes,
unassisted by another
person, even if free
to move around, before
needing to sit down.
(b)
Cannot sit in a chair with
15
a high back and no arms
for more than 10 minutes
before needing to move
from the chair because the
degree of discomfort
experienced makes it
impossible to continue
sitting.
(c)
Cannot rise to standing
15
from sitting in an upright
chair without physical
assistance from another
person.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5321

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(d)
Cannot move between
15
one seated position and
another seated position
located next to one another
without receiving physical
assistance from another
person.
(e)
Cannot stand for more than 6
30 minutes, even if free to
move around, before
needing to sit down.
(f)
Cannot sit in a chair with a 6
high back and no arms for
more than 30 minutes
without needing to move
from the chair because the
degree of discomfort
experienced makes it
impossible to continue
sitting.
(g)
None of the above apply.
0
3.
 Bending or kneeling.
3 (a)
Cannot bend to touch
15
knees and straighten up
again.
(b)
Cannot bend, kneel or
9
1Words substituted in
squat, as if to ̈1pick up a
paras. 3(b) & (c) of
light objecṫ, such as a piece
Sch. 2 by reg. 12(a) of
of paper, situated 15cm from
S.I. 2008/2428 as from
the floor on a low shelf,
2 7 . 1 0 . 0 8 .
and to move it and
straighten up again without
the help of  another person.
(c)
Cannot bend, kneel or ,
6
squat, as if to ̈1pick up a
light objecṫ off  the floor
and straighten up again
without without the help of
another another person.
(d)
None of the above apply.
0
4.
Reaching.
4 (a)
Cannot raise either arm as 15
if to put something in the
top pocket of a coat or
jacket.
(b)
Cannot put either arm
15
behind back as if to put
on a coat or jacket.
(c)
Cannot raise either arm to
9
top of head as if to put on
a hat.
13.5322  (–13.5328)
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(d)
Cannot raise either arm
6
above head height as if to
reach for something.
(e)
None of the above apply.
0
5.
Picking up and moving or 5
(a)
Cannot pick up and move 15
transferring by the use of the
a 0.5 litre carton full of
upper body and arms (excluding
liquid with either hand.
all other activities specified in
Part 1 of this Schedule).
(b)
Cannot pick up and move
9
a one litre carton full of
liquid with either hand.
(c)
Cannot pick up and move a 6
light but bulky object such
as an empty cardboard box,
requiring the use of both
hands together.
(d)
None of the above apply.
0
6.
Manual  dexterity.
6 (a)
Cannot turn a “star-
15
headed” sink tap with
either hand.
(b)
Cannot pick up a £1 coin
15
or equivalent with either
hand.
(c)
Cannot turn the pages of
15
a book with either hand.
(d)
Cannot physically use a
15
pen or pencil.
(e)
Cannot physically use a
9
conventional keyboard or
mouse.
(f)
Cannot do up/undo small
9
buttons, such as shirt or
blouse buttons.
(g)
Cannot turn a “star-
6
headed” sink tap with
one hand but can with the
other.
(h)
Cannot pick up a £1 coin
6
or equivalent with one
hand but can with the
other.
(i)
Cannot pour from an open
6
0.5 litre carton full of liquid.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5329

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(j)
None of the above apply.
0
7.
 Speech.
7 (a)
Cannot speak at all.
15
(b)
Speech cannot be
15
understood by strangers.
(c)
Strangers have great
9
difficulty understanding
speech.
(d)
Strangers have some
6
difficulty understanding
speech.
(e)
None of the above apply.
0
8.
Hearing with a hearing aid or
8 (a)
Cannot hear at all.
15
other aid if normally worn.
(b)
Cannot hear well enough
15
to be able to hear someone
talking in a loud voice in a
quiet room, sufficiently
clearly to distinguish the
words being spoken.
(c)
Cannot hear someone
9
talking in a normal voice
in a quiet room, sufficiently
clearly to distinguish the
words being spoken.
(d)
Cannot hear someone
6
talking in a loud voice in
a busy street, sufficiently
clearly to distinguish the
words being spoken.
(e)
None of the above apply.
0
9.
Vision including visual acuity
9 (a)
Cannot see at all.
15
and visual fields, in normal
daylight or bright electric light,
with glasses or other aid to
vision if such aid is normally
worn.
(b)
Cannot see well enough
15
to read 16 point print at a
distance of greater than
20cm.
(c)
Has 50% or greater
  15
reduction of visual fields.
(d)
Cannot see well enough to
9
recognise a friend at a
distance of a least 5 metres.
13.5330
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(e)
Has 25% or more but less
 6
than 50% reduction of
visual fields.
(f)
Cannot see well enough to
6
recognise a friend at a
distance of at least 15 metres.
(g)
None of the above apply.
0
10 (a) Continence other than enuresis
10 (a) (i)
Has no voluntary control
15
(bed wetting) where the claimant
over the evacuation of
does not have an artificial stoma
the bowel.
or urinary collecting device.
10 (a) (ii) Has no voluntary control
15
over the voiding of the
bladder.
10 (a) (iii) At least once a month loses 15
control of bowels so that
the claimant cannot control
the full evacuation of the
bowel.
10 (a) (iv) At least once a week, loses 15
control of bladder so that
the claimant cannot control
the full voiding of the
bladder.
10 (a) (v) Occasionally loses control
9
of bowels so that the
claimant cannot control
the full evacuation of the
bowel.
10 (a) (vi) At least once a month loses 6
control of bladder so that the
claimant cannot control the
full voiding of the bladder.
10 (a) (vii) Risks losing control of
6
bowels or bladder so that the
claimant cannot control the
full evacuation of the bowel
or the full voiding of the
bladder if not able to reach a
toilet quickly.
10 (a) (viii) None of the above apply.
0
10 (b)
Continence where the 15
10 (b) (i)
Is unable to affix, remove
15
claimant uses a urinary
or empty the catheter bag
collecting device, worn for
or other collecting device
the majority of the time
without  receiving  physical
including an indwelling
assistance from another
urethral or suprapubic
person.
catheter.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5331

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
10(b) (ii) Is unable to affix, remove
15
or empty the catheter bag
or other collecting device
without causing leakage of
contents.
10 (b) (iii) Has no voluntary control
15
over the evacuation of the
bowel.
10 (b) (iv) At least once a month,
15
loses control of bowels so
that the claimant cannot
control the full evacuation
of the bowel.
10 (b) (v) Occasionally loses control
9
of bowels so that the
claimant cannot control
the full evacuation of the
bowel.
10 (b) (vi) Risks losing control of
6
bowels so that the claimant
cannot control the full
evacuation of the bowel if
not able to reach a toilet
quickly.
10 (b) (vii) None of the above apply.
0
10 (c) Continence  other  than  enuresis
10 (c) (i)
Is unable to affix, remove
15
(bed wetting) where the claimant
 or empty stoma appliance
has an artificial stoma.
without  receiving  physical
assistance from another
person.
10 (c) (ii) Is unable to affix remove
15
or empty stoma appliance
without causing leakage
of contents.
1Para. 10(c)(iii) re-
         ̈110(c) (iii) Where the claimant’s
̈115̇
numbered (iv) & new
artificial stoma relates
para. (iii) inserted by
solely to the evacuation
reg. 12(b) & (d) of S.I.
of the bowel, has no
2008/2428 as  from
2 7 . 1 0 . 0 8 .
voluntary control over
voiding of the bladder.̇
10 (c) ̈1(iv)̇ Where the claimant’s
15
artificial stoma relates
solely to the evacuation
of the bowel, at least once
a week, loses control of
bladder so that the claimant
cannot control the full
voiding of the bladder.
13.5332
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
10 (c) ̈1(v)̇ Where the claimant’s
9
1Paras. 10(c)(iv), (v) &
artificial stoma relates
(vi) renumbered (v),
solely to the evacuation of
(vi) & (vii) and words
substituted in new para.
the bowel, ̈1at least once a
(v) by reg. 12(b)(ii)-
montḣ, loses control of
(iv) & (e) of S.I. 2008/
bladder so that the claimant
2428 as from 27.10.08.
cannot control the full
voiding of the bladder.
10 (c) ̈1(vi)̇
Where the claimant’s
6
artificial stoma relates
solely to the evacuation
of the bowel, risks losing
control of the bladder so
that the claimant cannot
control the full voiding
of the bladder if not able
to reach a toilet quickly.
10 (c) ̈1(vii)̇ None of the above apply.
0
11.
Remaining  conscious  during 11 (a)
At least once a week, has
15
waking moments.
an involuntary episode of
lost or altered
consciousness, resulting in
significantly disrupted
awareness or concentration.
(b)
At least once a month, has
9
an involuntary episode of
lost or altered
consciousness, resulting in
significantly disrupted
awareness or concentration.
(c)
At least twice in the six
6
months immediately
preceding the assessment,
has had an involuntary
episode of lost or altered
consciousness, resulting in
significantly disrupted
awareness or concentration.
(d)
None of the above apply.
0
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5333

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
PART 2
MENTAL, COGNITIVE AND INTELLECTUAL FUNCTION ASSESSMENT
(1)
(2)
(3)
Activity
Descriptors
Points
12.
Learning or comprehension
12 (a)
Cannot learn or understand 15
in the completion of tasks.
how to successfully
complete a simple task,
such as setting an alarm
clock, at all.
(b)
Needs to witness a
15
demonstration, given
more than once on the
same occasion, of how to
carry out a simple task
before the claimant is able
to learn or understand
how to complete the task
successfully, but would be
unable to successfully
complete the task the
following day without
receiving a further
demonstration of how to
complete it.
(c)
Needs to witness a
9
demonstration of how to
carry out a simple task,
before the claimant is able
to learn or understand how
to complete the task
successfully, but would be
unable to successfully
complete the task the
following day without
receiving a verbal prompt
from another person.
(d)
Needs to witness a
9
demonstration of how to
carry out a moderately
complex task, such as the
steps involved in operating
a washing machine to
correctly clean clothes,
before the claimant is able
to learn or understand how
to complete the task
successfully, but would be
unable to successfully
complete the task the
following day without
receiving a verbal prompt
from another person.
13.5334  (–13.5340)
Supplement No. 86 [March 2009]
The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(e)
Needs verbal instructions
6
as to how to carry out a
simple task before the
claimant is able to learn or
understand how to complete
the task successfully, but
would be unable, within a
period of less than one week,
to successfully complete the
task ̈1̇ without receiving a
1Words omitted in para.
verbal prompt from another
12(e) by reg. 12(8) of
person.
S.I. 2008/2428 as from
2 7 . 1 0 . 0 8 .
(f)
None of the above apply.
0
13.
Awareness of hazard.
13 (a)
Reduced awareness of the 15
risks of everyday hazards
(such as boiling water or
sharp objects) would lead
to daily instances of or to
near-avoidance of:
(i) injury to self or others;
or
(ii) significant damage to
property or possessions,
to such an extent that
overall day to day life
cannot successfully be
managed.
(b)
Reduced awareness of the
9
risks of everyday hazards
would lead for the majority
of the time to instances of
or to near-avoidance of
(i) injury to self or others;
or
(ii) significant damage to
property or possessions,
to such an extent that
overall day to day life
cannot successfully be
managed without
supervision from another
person.
(c)
Reduced awareness of the
6
risks of everyday hazards
has led or would lead to
frequent instances of or to
near-avoidance of:
(i) injury to self or others;
or
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5341

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(ii) significant damage to
property or possessions,
but not to such an extent
that overall day to day life
cannot be managed when
such incidents occur.
(d)
None of the above apply.
0
14.
Memory  and  concentration.
14 (a)
On a daily basis, forgets
15
or loses concentration to
such an extent that overall
day to day life cannot be
successfully managed
without receiving verbal
prompting, given by
someone else in the
claimant’s presence.
(b)
For the majority of the
9
time, forgets or loses
concentration to such an
extent that overall day to
day life cannot be
successfully managed
without receiving verbal
prompting, given by
someone else in the
claimant’s presence.
(c)
Frequently forgets or loses
6
concentration to such an
extent that overall day to
day life can only be
successfully managed with
pre-planning, such as
making a daily written list
of all tasks forming part of
daily life that are to be
completed.
(d)
None of the above apply.
0
15.
Execution of tasks.
15 (a)
Is unable to successfully
15
complete any everyday
task.
(b)
Takes more than twice the 15
length of time it would
take a person without any
form of mental disablement,
to successfully complete an
everyday task with which
the claimant is familiar.
(c)
Takes more than one and a
9
half times but no more than
twice the length of time it
13.5342
Supplement No. 86 [March 2009]
The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
would take a person
without any form of mental
disablement to successfully
complete an everyday task
with which the claimant is
familiar.
(d)
Takes one and a half times
6
the length of time it would
take a person without any
form of mental disablement
to successfully complete an
everyday task with which
the claimant is familiar.
(e)
None of the above apply.
0
16.
Initiating and sustaining
16 (a)
Cannot, due to cognitive
15
personal  action.
impairment or a severe
disorder of mood or
behaviour, initiate or
sustain any personal action
(which means planning,
organisation, problem
solving, prioritising or
switching tasks).
(b)
Cannot, due to cognitive
15
impairment or a severe
disorder of mood or
behaviour, initiate or
sustain personal action
without requiring ̈1dailẏ
1Words inserted &
verbal prompting given by
deleted in para. 16(b)
another person in the
by reg. 12(g)(i) & (ii)
of S.I. 2008/2428 as
claimant’s presence ̈1̇.
f r o m   2 7 . 1 0 . 0 8 .
(c)
Cannot, due to cognitive
9
impairment or a severe
disorder of mood or
behaviour, initiate or sustain
personal action without
requiring verbal prompting
given by another person in
the claimant’s presence for
the majority of the time.
(d)
Cannot, due to cognitive
6
impairment or a severe
disorder of mood or
behaviour, initiate or
sustain personal action
without requiring frequent
verbal prompting given by
another person in the
claimant’s presence.
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5343

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(e)
None of the above apply.
0
17.
Coping with change.
17 (a)
Cannot cope with very
15
minor, expected changes
in routine, to the extent
that overall day to day
life cannot be managed.
(b)
Cannot cope with expected 9
changes in routine (such as
a pre-arranged permanent
change to the routine time
scheduled for a lunch
break), to the extent that
overall day to day life is
made significantly more
difficult.
(c)
Cannot cope with minor,
6
unforeseen changes in
routine (such as an
unexpected change of the
timing of an appointment
on the day it is due to
occur), to the extent that
overall, day to day life is
made significantly more
difficult.
(d)
None of the above apply.
0
18.
Getting about.
18 (a)
Cannot get to any
15
specified place with which
the claimant is, or would
be, familiar.
(b)
Is unable to get to a
15
specified place with which
the claimant is familiar,
without being accompanied
by another person on each
occasion.
(c)
For the majority of the
9
time is unable to get to a
specified place with which
the claimant is familiar
without being accompanied
by another person.
(d)
Is frequently unable to get
6
to a specified place with
which the claimant is
familiar without being
accompanied by another
person.
13.5344
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(e)
None of the above apply.
0
19.
Coping with social situations.
19 (a)
Normal activities, for
15
example, visiting new
places or engaging in
social contact, are
precluded because of
overwhelming fear or
anxiety.
(b)
Normal activities, for
̈19̇
1Number added to col.
example, visiting new
(3) of para. 19(b) by
places or engaging in
reg. 12(h) of S.I. 2008/
2428 as from 27.10.08.
social contact, are
precluded for the majority
of the time due to
overwhelming fear or
anxiety.
(c)
Normal activities, for
6
example, visiting new
places or engaging in
social contact, are
frequently precluded,
due to overwhelming
fear or anxiety.
(d)
None of the above apply.
0
20.
Propriety of behaviour with
20 (a)
Has unpredictable
15
other  people.
outbursts of aggressive,
disinhibited, or bizarre
behaviour, being either:
(i) sufficient to cause
disruption to others on
a daily basis; or
(ii) of such severity that
although occurring less
frequently than on a
daily basis, no
reasonable person
would be expected to
tolerate them.
(b)
Has a completely
15
disproportionate reaction
to minor events or to
criticism to the extent
that the claimant has an
extreme violent outburst
leading to threatening
behaviour or actual
physical violence.
(c)
Has unpredictable
9
outbursts of aggressive,
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5345

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
disinhibited or bizarre
behaviour, sufficient in
severity and frequency to
cause disruption for the
majority of the time.
(d)
Has a strongly
9
disproportionate reaction
to minor events or to
criticism, to the extent
that the claimant cannot
manage overall day to day
life when such events or
criticism occur.
(e)
Has unpredictable
6
outbursts of aggressive,
disinhibited or bizarre
behaviour sufficient to
cause frequent disruption.
(f)
Frequently demonstrates a
6
moderately disproportionate
reaction to minor events or
to criticism but not to such
an extent that the claimant
cannot manage overall day
to day life when such events
or criticism occur.
(g)
None of the above apply.
0
21.
Dealing  with  other  people.
21 (a)
Is unaware of impact of
15
own behaviour to the
extent that:
(i) has difficulty relating
to others even for brief
periods, such as a few
hours; or
(ii) causes distress to others
on a daily basis.
(b)
The claimant misinterprets 15
verbal or non-verbal
communication to the
extent of causing himself
or herself significant
distress on a daily basis.
(c)
Is unaware of impact of
9
own behaviour to the
extent that:
(i) has difficulty relating
to others for longer
periods, such as a day
or two; or
13.5346  (–13.5352)
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 2
(1)
(2)
(3)
Activity
Descriptors
Points
(ii) causes distress to others
for the majority of the
time.
(d)
The claimant misinterprets
9
verbal or non-verbal
communication to the
extent of causing himself
or herself significant
distress ̈1̇ for the
1Words in para. 21(d)
majority of the time.
omitted by reg. 12(i) of
S.I. 2008/2428 as from
2 7 . 1 0 . 0 8 .
(e)
Is unaware of impact of
6
own behaviour to the
extent that:
(i) has difficulty relating
to others for prolonged
periods, such as a week;
or
(ii) frequently causes
distress to others.
(f)
The claimant misinterprets
6
verbal or non-verbal
communication to the
extent of causing himself
or herself significant
distress on a frequent basis.
(g)
None of the above apply.
0
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5353

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 3
SCHEDULE 3
 Regulation 34(1)
ASSESSMENT OF WHETHER A CLAIMANT HAS LIMITED
CAPABILITY FOR WORK-RELATED ACTIVITY
Column 1
Column 2
Activity
Descriptors
1. Walking or moving on
Cannot–
level  ground.
(a) walk (with a walking stick or
other aid if such aid is normally
used);
(b) move (with the aid of crutches if
crutches are normally used); or
(c) manually propel the claimant’s
wheelchair;
more than 30 metres without
repeatedly stopping, experiencing
breathlessness or severe discomfort.
2. Rising from sitting and transferring
Cannot complete both of the
from one seated position to another.
following–
(a) rise to standing from sitting in
an upright chair without
receiving physical assistance
from someone else; and
(b) move between one seated
position and another seated
position located next to one
another without receiving
physical assistance from
someone else.
3. Picking up and moving or transferring
Cannot pick up and move 0.5 litre
by the use of the upper body and arms
carton full of liquid with either hand.
(excluding standing, sitting, bending
or kneeling and all other activities
specified in this Schedule).
4. Reaching.
Cannot raise either arm as if to put
something in the top pocket of a coat
or jacket.
5. Manual dexterity.
Cannot–
(a) turn a “star-headed” sink tap
with either hand; or
(b) pick up a £1 coin or equivalent
with either hand.
13.5354
Supplement No. 86 [March 2009]
The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 3
Column 1
Column 2
Activity
Descriptors
6. Continence.
(a) Continence other than enuresis
(a) Has no voluntary control over
(bed wetting) where the claimant
the evacuation of the bowel;
does not have an artificial stoma
or urinary collecting device.
(b) Has no voluntary control over
the voiding of the bladder;
(c) At least once a week, loses
control of bowels so that the
claimant cannot control the full
evacuation of the bowel;
(d) At least once a week, loses
control of bladder so that the
claimant cannot control the full
voiding of the bladder;
(e) At least once a week, fails to
control full evacuation of the
bowel, owing to a severe
disorder of mood or behaviour;
or
(f) At least once a week, fails to
control full-voiding of the
bladder, owing to a severe
disorder of mood or behaviour.
(b) Continence  where  the  claimant
(a) Is unable to affix, remove or
uses a urinary collecting device,
empty the catheter bag or other
worn for the majority of the time
collecting  device  without
including an indwelling urethral
receiving physical assistance
or suprapubic catheter.
from another person;
(b) Is unable to affix, remove or
empty the catheter bag or other
collecting device without
causing leakage of contents;
(c) Has no voluntary control over
the evacuation of the bowel;
(d) At least once a week loses
control of bowels so that the
claimant cannot control the full
evacuation of the bowel; or
(e) At least once a week, fails to
control full evacuation of the
bowel, owing to a severe
disorder of mood or behaviour.
(c) Continence  other  than  enuresis
(a) Is unable to affix, remove or
(bed wetting) where the claimant
empty(stoma  appliance  without
has an artificial stoma appliance.
receiving physical assistance
from another person;
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5355

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 3
Column 1
Column 2
Activity
Descriptors
(b)
Is unable to affix, remove or
empty stoma without causing
leakage of contents;
(c)
Where the claimant’s artificial
stoma relates solely to the
evacuation of the bowel, has no
voluntary control over voiding
of bladder;
(d)
Where the claimant’s artificial
stoma relates solely to the
evacuation of the bowel, at least
once a week, loses control of
the bladder so that the claimant
cannot control the full voiding
of the bladder; or
(e)
Where the claimant’s artificial
stoma relates solely to the
evacuation of the bowel, at least
once a week, fails to control the
full voiding of the bladder,
owing to a severe disorder of
mood or behaviour.
7. Maintaining  personal  hygiene.
(a)
Cannot clean own torso
(excluding own back) without
receiving physical assistance
from someone else;
(b)
Cannot clean own torso
1Words substituted in
̈1(excluding own back)̇
para. 7(b) & (c) by reg.
without repeatedly stopping,
13 of S.I. 2008/2428 as
experiencing breathlessness or
f r o m   2 7 . 1 0 . 0 8 .
severe discomfort;
(c)
Cannot clean own torso
̈1(excluding own back)̇
without receiving regular
prompting given by someone
else in the claimant’s presence;
or
(d)
Owing to a severe disorder of
mood or behaviour, fails to
clean own torso (excluding own
back) without receiving–
(i) physical assistance from
someone else; or
(ii) regular prompting given by
someone else in the
claimant’s presence.
13.5356
Supplement No. 86 [March 2009]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 3
Column 1
Column 2
Activity
Descriptors
8. Eating and drinking.
(a) Conveying food or drink
(a) Cannot convey food or drink to
to the mouth.
the claimant’s own mouth
without receiving physical
assistance from someone else;
(b) Cannot convey food or drink to
the claimant’s own mouth
without repeatedly stopping,
experiencing breathlessness or
severe discomfort;
(c) Cannot convey food or drink to
the claimant’s own mouth
without receiving regular
prompting given by someone
else in the claimant’s physical
presence; or
(d) Owing to a severe disorder of
mood or behaviour, fails to
convey food or drink to the
claimant’s own mouth without
receiving–
(i) physical assistance from
someone else; or
(ii) regular prompting given by
someone else in the
claimant’s presence.
(b) Chewing or swallowing food
(a) Cannot chew or swallow food or
or drink. drink;
(b) Cannot chew or swallow food or
drink without repeatedly
stopping, experiencing
breathlessness or severe
discomfort;
(c) Cannot chew or swallow food or
drink without repeatedly
receiving regular prompting
given by someone else in the
claimant’s presence; or
(d) Owing to a severe disorder of
mood or behaviour, fails to–
(i) chew or swallow food or
drink; or
(ii) chew or swallow food or
drink without regular
prompting given by
someone else in the
claimant’s presence.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5357

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 3
Column 1
Column 2
Activity
Descriptors
9. Learning or comprehension in
(a)
Cannot learn or understand how
the completion of tasks.
to successfully complete a
simple task, such as the
preparation of a hot drink, at
all;
(b) Needs to witness a
demonstration, given more than
once on the same occasion of
how to carry out a simple task
before the claimant is able to
learn or understand how to
complete the task successfully,
but would be unable to
successfully complete the task
the following day without
receiving a further
demonstration of how to
complete it; or
(c) Fails to do any of the matters
referred to in (a) or (b) owing to
a severe disorder of mood or
behaviour.
10. Personal action.
(a) Cannot initiate or sustain any
personal action (which means
planning, organisation, problem
solving, prioritising or
switching tasks);
(b) Cannot initiate or sustain
personal action without
requiring daily verbal
prompting given by someone
else in the claimant’s presence;
or
(c) Fails to initiate or sustain basic
personal action without
requiring daily verbal
prompting given by some else
in the claimant’s presence,
owing to a severe disorder of
mood or behaviour.
11. Communication.
(a) None of the following forms of
communication can be achieved
by the claimant–
(i) speaking (to a standard that
may be understood by
strangers);
(ii) writing (to a standard that
may be understood by
strangers);
13.5358  (–13.5364)
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 3
Column 1
Column 2
Activity
Descriptors
(iii) typing (to a standard that
may be understood by
strangers);
(iv) sign language to a standard
equivalent to Level 3
British Sign Language;
(b) None of the forms of
communication referred to in
(a) are achieved by the
claimant, owing to a severe
disorder of mood or behaviour;
(c) Misinterprets verbal or non-
verbal communication to the
extent of causing distress to
himself or herself on a daily
basis; or
(d) Effectively cannot make
himself or herself understood to
others because of the claimant’s
disassociation from reality
owing to a severe disorder of
mood or behaviour.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5365

---

SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 4
SCHEDULE 4      Regulations 67(1)(a) and (2) and
                                               68(1)(a) and (b)
AMOUNTS
PART 1
PRESCRIBED AMOUNTS
1.  The weekly amounts specified in column (2) in respect of each person or couple
specified in column (1) are the weekly amounts specified for the purposes of regulations
67(1) and 68 (prescribed amounts and polygamous marriages).
(1)
(2)
Person or Couple
Amount
(1) Single claimant–
(1)
(a)
£60.50;
(a)
who satisfies the conditions set
out in section 2(2) or (3) or 4(4)
or (5) of the Act;
(b) aged not less than 25;
(b)
£60.50;
(c)
aged less than 25.
(c)
£47.95;
(2) Lone parent–
(2)
(a)
who satisfies the conditions set
(a)
£60.50;
out in section 4(4) or (5) of the Act;
(b) aged not less than 18;
(b)
£60.50;
(c)
aged less than 18.
(c)
£47.95;
(3) Couple–
(3)
(a)
where both members are aged not
(a)
£94.95;
less than 18;
(b) where one member is aged not less
(b)
£94.95;
than 18 and the other member is a
person under 18 who–
(i)
had they not been members of
a couple, would satisfy the requirement
for entitlement to income support other
than the requirement to make a claim
for it; or
(ii) had they not been members of a couple,
would satisfy the requirements for
entitlement to an income-related allowance;
or
(iii) satisfies the requirements of section 3(1)(f)
(iii) of the Jobseekers Act (prescribed
circumstances for persons aged 16 but less
than 18); or
(iv) is the subject of a direction under section 16
of that Act (persons under 18: severe hardship);
(c)
where the claimant satisfies the conditions set out
in section 4(4) or (5) of the Act and both members
are aged less than 18 and–
(c)
£94.95;
(i)
at least one of them is treated as responsible
for a child; or
(ii) had they not been members of a couple, each
would have qualified for an income-related
allowance; or
13.5366
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security

---

EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 4
(1)
(2)
Person or Couple
Amount
(iii) had they not been members of a couple the
claimant’s partner would satisfy the
requirements for entitlement to income
support other than the requirement to make
a claim for it; or
(iv) the claimant’s partner satisfies the
requirements of section 3(1)(f)(iii) of the
Jobseekers Act (prescribed circumstances
for persons aged 16 but less than 18); or
(v) there is in force in respect of the claimant’s
partner a direction under section 16 of that
Act (persons under 18: severe hardship);
(d) where both members are aged less than 18 and–
(d)
£72.35;
(i)
at least one of them is treated as
responsible for a child; or
(ii) had they not been members of a couple,
each would have qualified for an income-
related allowance; or
(iii) had they not been members of a couple
the claimant’s partner satisfies the
requirements for entitlement to income
support other than a requirement to make
a claim for it; or
(iv) the claimant’s partner satisfies the
requirements of section 3(1)(f)(iii) of the
Jobseekers Act (prescribed circumstances
for persons aged 16 but less than 18); or
(v) there is in force in respect of the
claimant’s partner a direction under
section 16 of that Act (persons under 18:
severe hardship);
(e)
where the claimant is aged not less than 25 and
the claimant’s partner is a person under 18 who–
(e)
£60.50;
(i)
would not qualify for an income-related
allowance if the person were not a member
of a couple;
(ii) would not qualify for income support if the
person were not a member of a couple;
(iii) does not satisfy the requirements of
section 3(1)(f)(iii) of the Jobseekers Act
(prescribed circumstances for persons aged 16
but less than 18); and
(iv) is not the subject of a direction under
section 16 of that Act (persons under 18:
severe hardship);
(f)
where the claimant satisfies the conditions
set out in section 4(4) or (5) of the Act and
the claimant’s partner is a person under 18 who–
(f)
£60.50;
(i)
would not qualify for an income-related
allowance if the person were not a member
of a couple;
(ii) would not qualify for income support if the
person ̈1werė not a member of a couple;
1Words substituted in
(iii) does not satisfy the requirements of
para. 1(3)(f)(ii) by reg.
section 3(1)(f)(iii) of the Jobseekers Act
14(a)(i) of S.I. 2008/
2428 as from 27.10.08.
(prescribed circumstances for persons
aged 16 but less than 18); and
Supplement No. 86 [March 2009]
The Law Relating to Social Security
13.5367

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 4
(1)
(2)
Person or Couple
Amount
(iv) is not the subject of a direction under
section 16 of that Act (persons under 18:
severe hardship);
(g) where the claimant satisfies the conditions set
out in section 4(4) or (5) of the Act and both
members are aged less than 18 and paragraph (c)
does not apply;
(g)
£60.50;
1Para. 1(3)(h)
̈1(h)
where the claimant is aged not less than 18 but
substituted by reg.
less than 25 and the claimant’s partner is a person
14(a)(ii) of S.I. 2008/
under 18 who–
(h)
£47.95;
2428 as from 27.10.08.
(i)
would not qualify for an income-related
allowance if the person were not a member
of a couple;
(ii) would not qualify for income support if the
person were not a member of a couple;
(iii) does not satisfy the requirements of
section 3(1)(f)(iii) of the Jobseekers Act
(prescribed circumstances for persons aged 16
but less than 18); and
(iv) is not the subject of a direction under
section 16 of that Act (persons under 18:
severe hardship);̇
(i)
where both members are aged less than 18 and
paragraph (d) does not apply.
(i)
£47.95.
13.5368
Supplement No. 86 [March 2009]
The Law Relating to Social Security

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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
SI 2008/794
Sch. 4
PART 2
Regulations 67(1)(b) and 68(1)(c)
PREMIUMS
2.  Except as provided in paragraph 4, the weekly premiums specified in Part 3 of
this Schedule are, for the purposes of regulation 67(1)(b) and 68(1)(c), to be applicable
to a claimant who satisfies the condition specified in paragraphs 5 to 8 in respect of
that premium.
3.  An enhanced disability premium in respect of a person is not applicable in
addition to a pensioner premium.
4.—(1) For the purposes of this Part of this Schedule, once a premium is applicable
to a claimant under this Part, a person is to be treated as being in receipt of any
benefit–
(a)
in the case of a benefit to which the Social Security (Overlapping Benefits)
Regulations 1979(a) applies, for any period during which, apart from the
provisions of those Regulations, the person would be in receipt of that
benefit; and
(b)
for any period spent by a person in undertaking a course of training or
instruction provided or approved by the Secretary of State under section 2
of the Employment and Training Act 1973(b), or by Scottish Enterprise or
Highlands and Islands Enterprise under section 2 of the Enterprise and New
Towns (Scotland) Act 1990(c), or for any period during which the person is
in receipt of a training allowance.
(2)  For the purposes of the carer premium under paragraph 8, a claimant is to be
treated as being in receipt of a carer’s allowance by virtue of sub-paragraph (1)(a) only
if and for so long as the person in respect of whose care the allowance has been
claimed remains in receipt of attendance allowance, or the care component of disability
living allowance at the highest or middle rate prescribed in accordance with section
72(3) of the Contributions and Benefits Act.
Pensioner premium
5.   The condition is that the claimant or the claimant’s partner has attained the
qualifying age for state pension credit.
Severe disability premium
6.—(1)  The condition is that the claimant is a severely disabled person.
(2)  For the purposes of sub-paragraph (1), a claimant is to be treated as being a
severely disabled person if, and only if–
(a)
in the case of a single claimant, a lone parent or a claimant who is treated as
having no partner in consequence of sub-paragraph (3)–
(i) the claimant is in receipt of the care component;
(ii) subject to sub-paragraph (4), the claimant has no non-dependants aged
18 or over normally residing with the claimant or with whom the claimant
is normally residing; and
(iii) no person is entitled to, and in receipt of, a carer’s allowance under section
70 of the Contributions and Benefits Act in respect of caring for the
claimant;
(b)
in the case of a claimant who has a partner–
(i) the claimant is in receipt of the care component;
( a ) S.I. 1979/597.
( b ) 1973 c. 50, as amended by sections 9 and 11 of, and Schedule 2, Part II paragraph 9 and
Schedule 3 to, the Employment and Training Act 1981 (c. 57).
( c ) 1990 c. 35.
Supplement No. 84 [Sept 2008]
The Law Relating to Social Security
13.5369

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SI 2008/794
EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 4
(ii) the claimant’s partner is also in receipt of the care component or
attendance allowance or, if the claimant is a member of a polygamous
marriage, all the partners of that marriage are in receipt of the care
component or attendance allowance; and
(iii) subject to sub-paragraph (4), the claimant has no non-dependants aged
18 or over normally residing with the claimant or with whom the claimant
is normally residing,
and, either a person is entitled to, and in receipt of, a carer’s allowance in
respect of caring for only one of the couple or, in the case of a polygamous
marriage, for one or more but not all the partners of the marriage or, as the
case may be, no person is entitled to, and in receipt of, such an allowance in
respect of caring for either member of the couple or any partner of the
polygamous marriage.
(3)  Where a claimant has a partner who does not satisfy the condition in sub-
paragraph (2)(b)(ii) and that partner is blind or severely sight impaired or is treated as
blind or severely sight impaired that partner is to be treated for the purposes of sub-
paragraph (2) as if the partner were not a partner of the claimant.
(4)  For the purposes of sub-paragraph (2)(a)(ii) and (b)(iii) no account is to be taken
of–
(a)
a person receiving attendance allowance, or the care component;
(b)
subject to sub-paragraph (7), a person who joins the claimant’s household
for the first time in order to care for the claimant or the claimant’s partner
and immediately before so joining the claimant or the claimant’s partner
was treated as a severely disabled person; or
(c)
a person who is blind or severely sight impaired or is treated as blind or
severely sight impaired.
(5)  For the purposes of sub-paragraph (2)(b) a person is to be treated–
(a)
as being in receipt of attendance allowance or the care component if the
person would, but for the person being a patient for a period exceeding 28
days, be so in receipt;
(b)
as being entitled to, and in receipt of, a carer’s allowance if the person
would, but for the person for whom the person was caring being a patient in
hospital for a period exceeding 28 days, be so entitled and in receipt.
(6)  For the purposes of sub-paragraph (2)(a)(iii) and (b), no account is to be taken of
an award of carer’s allowance to the extent that payment of such an award is backdated
for a period before the date on which the award is first paid.
(7)  Sub-paragraph (4)(b) is to apply only for the first 12 weeks following the date
on which the person to whom that provision applies first joins the claimant’s household.
(8) In sub-paragraph (2)(a)(iii) and (b), references to a person being in receipt of a
carer’s allowance are to include references to a person who would have been in receipt
of that allowance but for the application of a restriction under section 7 of the Social
Security Fraud Act 2001 (loss of benefit provisions).
(9) In this paragraph–
“blind or severely sight impaired” means registered as blind or severely sight
impaired in a register compiled by a local authority under section 29 of the
National Assistance Act 1948(a) (welfare services) or, in Scotland, has been certified
as blind and in consequence the person is registered as blind in a register maintained
by or on behalf of a regional or island council and a person who has ceased to be
registered as blind or severely sight impaired where that person’s eyesight has
been regained is, nevertheless, to be treated as blind or severely sight impaired for
a period of 28 weeks following the date on which the person ceased to be so
registered;
( a ) 1948 c. 29.
13.5370  (–13.5376)
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Sch. 4
“the care component” means the care component of disability living allowance at
the highest or middle rate prescribed in accordance with section 72(3) of the
Contributions and Benefits Act.
Enhanced disability premium
7.—(1)  Subject to sub-paragraph (2), the condition is that–
(a)
the claimant’s applicable amount includes the support component; or
(b)
the care component of disability living allowance is, or would, but for a
suspension of benefit in accordance with regulations under section 113(2)
of the Contributions and Benefits Act or, but for an abatement as a
consequence of hospitalisation, be payable at the highest rate prescribed
under section 72(3) of that Act in respect of–
(i) the claimant; or
(ii) the claimant’s partner (if any) who is aged less than the qualifying age
for state pension credit.
(2) An enhanced disability premium is not applicable in respect of–
(a)
a claimant who–
(i) is not a member of a couple or a polygamous marriage; and
(ii) is  a patient within the meaning of regulation 69(2) and has been for a
period of more than 52 weeks; or
(b)
a member of a couple or a polygamous marriage where each member is a
patient within the meaning of regulation 69(2) and has been for a period of
more than 52 weeks.
Carer premium
8.—(1)  Subject to sub-paragraphs (2) and (4), the condition is that the claimant or
the claimant’s partner is, or both of them are, entitled to a carer’s allowance under
section 70 of the Contributions and Benefits Act.
(2)  Where a carer premium is awarded but–
(a)
the person in respect of whose care the carer’s allowance has been awarded
dies; or
(b)
in any other case the person in respect of whom a carer premium has been
awarded ceases to be entitled to a carer’s allowance,
the condition for the award of the premium is to be treated as satisfied for a period of
8 weeks from the relevant date specified in sub-paragraph (3).
(3)  The relevant date for the purposes of sub-paragraph (2) is–
(a)
where sub-paragraph (2)(a) applies, the Sunday following the death of the
person in respect of whose care a carer’s allowance has been awarded or the
date of death if the death occurred on a Sunday; or
(b)
in any other case, the date on which the person who has been entitled to a
carer’s allowance ceases to be entitled to that allowance.
(4)  Where a person who has been entitled to a carer’s allowance ceases to be entitled
to that allowance and makes a claim for an income-related allowance, the condition
for the award of the carer premium is to be treated as satisfied for a period of 8 weeks
from the date on which–
(a)
the person in respect of whose care the carer’s allowance has been awarded
dies; or
(b)
in any other case, the person who has been entitled to a carer’s allowance
ceased to be entitled to that allowance.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 4
Persons in receipt of concessionary payments
9.   For the purpose of determining whether a premium is applicable to a person
under paragraphs 6, 7 and 8, any concessionary payment made to compensate that
person for the non-payment of any benefit mentioned in those paragraphs is to be
treated as if it were a payment of that benefit.
Persons in receipt of benefit
10.  For the purposes of this Part of this Schedule, a person is to be regarded as being
in receipt of any benefit if, and only if, it is paid in respect of the person and is to be so
regarded only for any period in respect of which that benefit is paid.
PART 3
WEEKLY AMOUNT OF PREMIUMS SPECIFIED IN PART 2
Premium
Amount
11.—(1) Pensioner premium for a person to
(1)
whom paragraph 5 applies who–
(a) is a single claimant and–
(a)
(i)
is entitled to the work-related
(i)
£39.55;
activity component;
(ii) is entitled to the support
(ii)
£34.55;
component; or
(iii) is not entitled to either of those
(iii)
£63.55;
components;
(b) is a member of a couple and–
(b)
(i)
is entitled to the work-related
(i)
£70.40;
activity component;
(ii) is entitled to the support
(ii)
£65.40;
component; or
(iii) is not entitled to either of
those components.
(iii)
£94.40.
(2) Severe disability premium–
(2)
(a) where the claimant satisfies the
(a)
£50.35;
condition in paragraph 6(2)(a);
(b) where the claimant satisfies the
(b)
condition in paragraph 6(2)(b)–
(i)
if there is someone in receipt
(i)
£50.35;
of a carer’s allowance or if the
person or any partner satisfies
that condition only by virtue
of paragraph 6(5);
(ii) if no-one is in receipt of such
(ii)
£100.70.
an allowance.
(3) Carer premium.
(3)
£27.75  in  respect of each
person who satisfies the
condition specified in
1Words in para. 11(3)
̈1paragraph 8(1)̇.
substituted by reg.
14(1)(b) of S.I. 2008/
2428 as from 27.10.08.
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Premium
Amount
(4) Enhanced disability premium where (4)
the conditions in paragraph 7 are
satisfied.
(a)
£12.60 in respect of
each person who is
neither–
(i)
a child or young
person; nor
(ii)
a member of a couple
or a polygamous
marriage, in respect
of whom the
conditions specified
in paragraph 7 are
satisfied;
(b)
£18.15 where the claimant
is a member of a couple or
a polygamous marriage
and the conditions
specified in ̈1paragraph 7̇
1Words substituted in
are satisfied in respect of a
para. 11(4)(b) by reg.
member of that couple or
14(b)(ii) of S.I. 2008/
2428 as from 27.10.08.
polygamous marriage.
PART 4
Regulation 67(3)
THE COMPONENTS
12.  The amount of the work-related activity component is £24.00.
13.  The amount of the support component is £29.00.
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Sch. 5
SCHEDULE 5                                  Regulation 69
SPECIAL CASES
PART 1
AMOUNTS PRESCRIBED FOR THE PURPOSES OF SECTION 4(2) OF THE
ACT
Claimants without accommodation
1. A claimant who is without
1. The amount applicable to
accommodation.
the claimant under regulation 67
(1)(a).
Members of religious orders
2. A claimant who is a member of, and
2. Nil.
fully maintained by, a religious order.
Prisoners
3. A claimant
3.
(a)
except where sub-paragraph (b)
(a) Nil;
applies, who is a prisoner;
(b) who is detained in custody
(b) only such amount, if any,  as
pending trial or sentence
may be applicable under
following conviction by a court.
regulation 67(1)(c) and the
amount of nil under
regulation 67(3).
Specified cases of temporarily separated
 couples
4. A claimant who is a member of a
4. Either–
couple and who is temporarily
separated from the claimant’s partner
where–
(a)
one member of the couple is–
(a) the amount applicable to the
claimant as a member of a
couple under regulation
67(1); or
(i) not a patient but is residing in
a care home, an Abbeyfield
home or an independent
hospital; or
(ii) resident in premises used for
the rehabilitation of alcoholics
or drug addicts; or
(iii) resident  in accommodation
provided under section 3 of
and Part 2 of the Schedule to,
the Polish Resettlement Act
1947(a) (provision of
accommodation in camps); or
( a ) 1947 c. 19; amended by Schedule 4 of the Social Security Act 1980 (c. 30) and by S.I.
1951/674 and 1968/1699.
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(iv) participating in arrangements
for training made under
section 2 of the Employment
and Training Act 1973 or
section 2 of the Enterprise
and New Towns  (Scotland)
Act 1990(a) or attending a
course at an employment
rehabilitation centre
established under that
section of the 1973 Act,
where the course requires
the person to live away
from the dwelling occupied
as the home; or
(v) in a probation or bail hostel
approved for the purpose
by the Secretary of State; and
(b) the other member of the couple is–
(b) the aggregate of the
claimant’s applicable
amount and that of the
claimant’s partner
assessed under the
provisions of these
Regulations as if each
of them were a single
claimant or a lone
parent, whichever is the
greater.
(i) living in the dwelling occupied
as the home; or
(ii) a patient; or
(iii) residing in a care home, an
Abbeyfield Home or an
independent hospital.
Polygamous marriages where one or more
partners are temporarily separated
5. A claimant who is a member of a
5. Either–
polygamous  marriage and who is
temporarily separated from a partner,
where one of them is living in
the home where the other member is–
(a)
not a patient but is residing in
(a) the amount applicable to
a care home, an Abbeyfield Home
the members of the
or an independent hospital; or
polygamous marriage under
regulation 68; or
(b) resident in premises used for the
(b) the aggregate of the amount
rehabilitation of alcoholics or
applicable for the members
drug addicts; or
of the polygamous marriage
who remain in the home
under regulation 68 and the
amount applicable in
respect of those members
not in the home calculated
as if each of them were a
( a ) 1990 c. 35.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
Sch. 5
single claimant or a lone
parent, whichever is the
greater.
(c)
attending a course of training
or instruction provided or
approved by the Secretary of
State where the course requires
the person to live away from
home; or
(d) in a probation or bail hostel
approved for the purpose by
the Secretary of State.
Couple where one member is abroad
6. Subject to paragraph 7, a claimant
6. For the first 4 weeks of that
who is a member of a couple where
absence,  the  amount  applicable
one member of the couple is
to them as a couple under
temporarily absent from the United
regulation 67(1) or 69, as the
Kingdom.
 case may be, and thereafter, the
amount applicable to the
claimant in Great Britain under
regulation 67(1) or 69, as the
case may be, as if the claimant
were a single claimant or, as the
case may be, lone parent.
Couple or member of couple taking
child or young person abroad for
treatment
7.—(1) A claimant who is a member
7. For the first 26 weeks of that
of a couple where either–
absence, the amount applicable
to the claimant under regulation
67(1) or 69, as the case may be
and, thereafter, if the claimant is
in Great Britain the amount
applicable to the claimant under
regulation 67(1) or 69, as the
case may be, as if the claimant
were a single claimant or, as the
case may be, a lone parent.
(a) the claimant or the claimant’s
partner is; or
(b) both the claimant and the
claimant’s partner are,
absent from the United Kingdom in
the circumstances specified in sub-
paragraph (2).
13.5382  (–13.5388)
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(2) For the purposes of sub-paragraph (1)
the specified circumstances are–
(a) in respect of a claimant, those in
regulation 153(1)(a), (b), (c)(ii),
(d) and (e);
(b) in respect of a claimant’s partner,
as if regulation 153(1)(a), (b),
(c)(ii), (d) and (e) applied to that
partner.
Polygamous marriages where any member
is abroad
8. Subject to paragraph 9, a claimant
8. For the first 4 weeks of that
who is a member of a polygamous
absence,  the  amount  applicable
marriage where one or more members
to  the  claimant  under
of the marriage are temporarily absent
regulation 68 and 69, as the
from the United Kingdom.
case may be, and thereafter, if
the claimant is in Great Britain
the amount applicable to the
claimant under regulations 68
and 69, as the case may be, as if
any members of the polygamous
marriage not in the United
Kingdom were not a member of
the marriage.
Polygamous marriage: taking child or
young person abroad for treatment
9.—(1) A claimant who is a member of
9. For the first 26 weeks of that
a polygamous marriage where one
absence, the amount applicable
or more members of the marriage
to  the  claimant  under
is absent from the United Kingdom
regulations 68 and 69, as the
in the circumstances specified in
case may be, and thereafter, if
sub-paragraph (2).
the claimant is in Great Britain
the amount applicable to the
claimant under regulations 68
and 69, as the case may be, as if
any member of the polygamous
marriage not in the United
Kingdom were not a member of
the marriage.
(2) For the purposes of sub-paragraph
(1) the specified circumstances
are–
(a) in respect of a claimant, those
in regulation 153(1)(a), (b),
(c)(ii), (d) and (e);
(b) in respect of a claimant’s
partner or partners, as the case
may be, as if regulation 153(1)
(a), (b), (c)(ii), (d) and (e) applied
to that partner or those ̈1partnerṡ.
1Words in para. 9(2)(b)
substituted by reg. 15 of
S.I. 2008/2428 as from
2 7 . 1 0 . 0 8 .
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Sch. 5
Partner of a person subject to
immigration control
 10. (a) A claimant who is the partner
10. (a) The amount applicable in
of a person subject to
respect of the claimant only
immigration control.
under regulation 67(1)(a)
any amount which may be
applicable to the claimant
under regulation 67(1)(b)
plus the amount applicable
to the claimant under
regulation 67(1)(c) or, as the
case may be, regulation 69.
(b) Where regulation 68
(b) the amount determined in
(polygamous marriages)
accordance with that
applies and the claimant is
 regulation or regulation 69
a person–
in respect of the claimant
and any partners of the
claimant who are not subject
to immigration control
within the meaning of
section 115(9) of the
Immigration and Asylum Act
and to whom section 115 of
that Act does not apply for
the purposes of exclusion
from entitlement to an
income-related allowance.
(i) who is not subject to
immigration control
within the meaning of
section 115(9) of the
Immigration and Asylum
Act; or
(ii) to whom section 115 of
that Act does not apply
by virtue of regulation 2
of the Social Security
(Immigration and Asylum)
Consequential Amendments
Regulations 2000(a); and
(iii) who is a member of a couple
and one or more of the person’s
partners is subject to immigration
control within the meaning of
section 115(9) of that Act and
section 115 of that Act applies
to that partner or those partners
for the purposes of exclusion
from entitlement to income-related
allowance.
Person from abroad
11. Person from abroad.
11.
Nil.
( a ) S.I. 2000/636, the relevant amending instruments are S.I. 2002/2497 and S.I. 2003/2274.
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Sch. 5
PART 2
AMOUNTS PRESCRIBED FOR THE PURPOSES OF SECTIONS 2(1) AND 4(2)
OF THE ACT
Patients
12. A claimant who is detained,
12.
The amount applicable
or liable to be detained under–
under regulation 67(2) and
the amount of nil under
regulation 67(3).
(a) section 45A of the Mental
Health Act  1983(a) (hospital
and limitation directions) or
section 59A of the Criminal
Procedure (Scotland) Act 1995(b)
(hospital directions); or
(b) section 47 of the Mental Health Act
1983(c) (removal to hospital of
persons serving sentences of
imprisonment, etc.) or section 136
of the Mental Health (Care and
Treatment) (Scotland) Act 2003(d)
(transfer of prisoners for treatment
for mental disorder),
but not if the detention continues after
the date which the Secretary of State
certifies or Scottish Ministers certify
would have been the earliest date on
which the claimant could have been
released in respect of, or from, the prison
sentence if the claimant had not been
detained in hospital.
13. Subject to paragraph 12, a single claimant
13. The amounts applicable
who has been a patient for a continuous
under regulation 67(1)(a),
period of more than 52 weeks or, where
(c) and (2) and the amount
the claimant is one of a couple, the other
of nil under regulation
member of the couple has been a patient
67(3).
for a continuous period of more than
52 weeks.
14. Person in hardship
A claimant who is a person in hardship.
14. The amount to which the
claimant is entitled under
regulation 67(1)(a) and (2)
or 68(1)(a) is to be reduced
by 20%.
( a ) 1983 c. 20; section 45A was inserted by the Crime (Sentences) Act 1977 (c. 43), section 46,
and amended by the Criminal Justice Act 2003 (c. 44), Schedule 32, paragraphs 37 and 39
and Schedule 37, Part 7.
( b ) 1995 c. 46; section 59A was inserted by the Mental Health (Care and Treatment) (Scotland)
Act 2003 (asp. 13), Schedule 4, paragraph 8(6).
( c ) Section 47 was amended by the Crime (Sentences) Act 1997, section 49(3).
( d ) 2003 asp. 13.
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Sch. 6
1Words substituted in
SCHEDULE 6
Regulations 67(1)(c), ̈168(1)(d)̇
heading to Sch. 6 and
para. 2(1) by reg. 16(a)
HOUSING COSTS
& (b) of S.I. 2008/2428
as from 27.10.08.
Housing costs
1.—(1) Subject to the following provisions of this Schedule, the housing costs
applicable to a claimant are those costs–
(a)
which the claimant or, where the claimant has a partner, that partner is, in
accordance with paragraph 4, liable to meet in respect of the dwelling
occupied as the home which the claimant or that claimant’s partner is treated
as occupying; and
(b)
which qualify under paragraphs 16 to 18.
(2) In this Schedule–
“existing housing costs” means housing costs arising under an agreement entered
into before 2nd October 1995, or under an agreement entered into after 1st October
1995 (“the new agreement”)–
(a) which replaces an existing agreement, provided that the person liable to
meet the housing costs–
(i) remains the same in both agreements; or
(ii) where in either agreement more than one person is liable to meet the
housing costs, the person is liable to meet the housing costs in both
the existing agreement and the new agreement;
(b) where the existing agreement was entered into before 2nd October 1995;
and
(c) which is for a loan of the same amount as, or less than the amount of, the
loan under the agreement it replaces, and for this purpose any amount
payable to arrange the new agreement and included in the loan must be
disregarded;
“housing costs” means those costs to which sub-paragraph (1) refers;
“new housing costs” means housing costs arising under an agreement entered into
after 1st October 1995 other than an agreement referred to in the definition of
“existing housing costs”;
“standard rate” means the rate for the time being determined in accordance with
paragraph 13.
(3) For the purposes of this Schedule a disabled person is a person–
(a)
in respect of whom the main phase employment and support allowance is
payable to the claimant or to a person living with the claimant;
(b)
who, had that person in fact been entitled to income support, would have
satisfied the requirements of paragraph 12 of Schedule 2 to the Income
Support Regulations (additional condition for the disability premium);
(c)
aged 75 or over; or
(d)
who is disabled or severely disabled for the purposes of section 9(6) of the
Tax Credits Act (maximum rate).
(4) For the purposes of sub-paragraph (3), a person will not cease to be a disabled
person on account of that person being disqualified for receiving benefit or treated as
not having limited capability for work by virtue of the operation of section 18(1) to
(3) of the Act.
Remunerative work
2.—(1) Subject to ̈1sub-paragraphs (2) to (8)̇, a ̈1non-dependant (referred to in
this paragraph as “person”)̇ is to be treated for the purposes of this Schedule as
engaged in remunerative work if that person is engaged, or, where the person’s hours
of work fluctuate, is engaged on average, for not less than 16 hours a week, being work
for which payment is made or which is done in expectation of payment.
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(2) Subject to sub-paragraph (3), in determining the number of hours for which a
person is engaged in work where that person’s hours of work fluctuate, regard is to be
had to the average of hours worked over–
(a)
if there is a recognisable cycle of work, the period of one complete cycle
(including, where the cycle involves periods in which the person does no
work, those periods but disregarding any other absences);
(b)
in any other case, the period of 5 weeks immediately prior to the date of
claim, or such other length of time as may, in the particular case, enable the
person’s weekly average hours of work to be determined more accurately.
(3) Where no recognisable cycle has been established in respect of a person’s work,
regard is to be had to the number of hours or, where those hours will fluctuate, the
average of the hours, which that person is expected to work in a week.
(4) A person is to be treated as engaged in remunerative work during any period for
which that person is absent from work referred to in sub-paragraph (1) if the absence is
either without good cause or by reason of a recognised, customary or other holiday.
(5) A person is not to be treated as engaged in remunerative work on any day on
which the person is on maternity leave, paternity leave or adoption leave or is absent
from work because the person is ill.
(6) For the purposes of this paragraph, in determining the number of hours in which
a person is engaged or treated as engaged in remunerative work, no account is to be
taken of any hours in which the person is engaged in an employment or a scheme to
which regulation 43(1) (circumstances under which partners of persons entitled to an
income-related allowance are not to be treated as engaged in remunerative work)
applies.
(7) For the purposes of sub-paragraphs (1) and (2), in determining the number of
hours for which a person is engaged in work, that number is to include any time
allowed to that person by that person’s employer for a meal or for refreshment, but
only where that person is, or expects to be, paid earnings in respect of that time.
̈1(8) A person is to be treated as not being engaged in remunerative work on any
1Para. 2(8) substituted &
day in which that person falls within the circumstances prescribed in regulation 43(2)
para. 2(9) inserted by
(circumstances in which partners of claimants entitled to an income-related allowance
reg. 16(b)(ii) of S.I.
2008/2428 as from
are not to be treated as engaged in remunerative work).
2 7 . 1 0 . 0 8 .
(9) Whether a claimant or the claimant’s partner is engaged in, or to be treated as
being engaged in, remunerative work is to be determined in accordance with regulations
41 or 42 (meaning of “remunerative work” for the purposes of paragraph 6(1)(e) and (f)
of Schedule 1 to the Act) as the case may be.̇
Previous entitlement to other income-related benefits
3.—(1) Where the claimant or the claimant’s partner was in receipt of, or was treated
as being in receipt of, an income-based jobseeker’s allowance or income support not
more than 12 weeks before one of them becomes entitled to an income-related allowance
or, where the claimant or the claimant’s partner is a person to whom paragraph 15(2) or
(13) (linking rules) refers, not more than 26 weeks before becoming so entitled and–
(a)
the applicable amount for that income-based jobseeker’s allowance or income
support included an amount in respect of housing costs under paragraphs 14
to 16 of Schedule 2 to the Jobseeker’s Allowance Regulations or, as the case
may be, paragraphs 15 to 17 of Schedule 3 to the Income Support Regulations;
and
(b)
the circumstances affecting the calculation of those housing costs remain
unchanged since the last calculation of those costs,
the applicable amount in respect of housing costs for an income-related allowance is
to be the applicable amount in respect of those costs current when entitlement to an
income-based jobseeker’s allowance or income support was last determined.
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(2) Where a claimant or the claimant’s partner was in receipt of state pension credit
1Words in para. 3(2)
not more than 12 weeks before one of them becomes entitled to ̈1an income-related
substituted by reg. 16(c)
allowancė or, where the claimant or the claimant’s partner is a person to whom
of S.I. 2008/2428 as
paragraph 15(2) or (13) (linking rules) refers, not more than 26 weeks before becoming
f r o m   2 7 . 1 0 . 0 8 .
so entitled, and–
(a)
the appropriate minimum guarantee included an amount in respect of
housing costs under paragraphs 11 to 13 of Schedule 2 to the State Pension
Credit Regulations 2002(a); and
(b)
the circumstances affecting the calculation of those housing costs remain
unchanged since the last calculation of those costs,
the applicable amount in respect of housing costs for an income-related allowance is
to be the applicable amount in respect of those costs current when entitlement to state
pension credit was last determined.
(3) Where, in the period since housing costs were last calculated for an income-
based jobseeker’s allowance, income support or, as the case may be, state pension
credit, there has been a change of circumstances, other than a reduction in the amount
of an outstanding loan, which increases or reduces those costs, the amount to be met
under this Schedule must, for the purposes of the claim for an income-related allowance,
be recalculated so as to take account of that change.
Circumstances in which a person is liable to meet housing costs
4.
A person is liable to meet housing costs where–
(a)
the liability falls upon that person or that person’s partner but not where the
liability is to a member of the same household as the person on whom the
liability falls;
(b)
because the person liable to meet the housing costs is not meeting them, the
claimant has to meet those costs in order to continue to live in the dwelling
occupied as the home and it is reasonable in all the circumstances to treat
the claimant as liable to meet those costs;
(c)
in practice the claimant shares the housing costs with other members of the
household none of whom are close relatives either of the claimant or the
claimant’s partner, and–
(i) one or more of those members is liable to meet those costs; and
(ii) it is reasonable in the circumstances to treat the claimant as sharing
responsibility.
Circumstances in which a person is to be treated as occupying a dwelling as the
home
5.—(1) Subject to the following provisions of this paragraph, a person is to be
treated as occupying as the home the dwelling normally occupied as the home by that
person or, if that person is a member of a family, by that person and that person’s family
and that person is not to be treated as occupying any other dwelling as the home.
(2) In determining whether a dwelling is the dwelling normally occupied as the
claimant’s home for the purposes of sub-paragraph (1) regard must be had to any other
dwelling occupied by the claimant or by the claimant and that claimant’s family
whether or not that other dwelling is in Great Britain.
(3) Subject to sub-paragraph (4), where a claimant who has no partner is a full-time
student or is on a training course and is liable to make payments (including payments
of mortgage interest or, in Scotland, payments under heritable securities or, in either
case, analogous payments) in respect of either (but not both) the dwelling which that
claimant occupies for the purpose of attending the course of study or the training
course or, as the case may be, the dwelling which that claimant occupies when not
attending that course, that claimant is to be treated as occupying as the home the
dwelling in respect of which that claimant is liable to make payments.
( a ) S.I. 2002/1792, the relevant amending instruments are S.I. 2002/3019, S.I. 2006/718 and
S.I. 2006/2378.
13.5394  (–13.5400)
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(4) A full-time student is not to be treated as occupying a dwelling as that student’s
home for any week of absence from it, other than an absence occasioned by the need to
enter hospital for treatment, outside the period of study, if the main purposes of that
student's occupation during the period of study would be to facilitate attendance on
that student’s course.
(5) Where a claimant has been required to move into temporary accommodation by
reason of essential repairs being carried out to the dwelling normally occupied as the
home and that claimant is liable to make payments (including payments of mortgage
interest or, in Scotland, payments under heritable securities or, in either case, analogous
payments) in respect of either (but not both) the dwelling normally occupied or the
temporary accommodation, that claimant must be treated as occupying as the home
the dwelling in respect of which that claimant is liable to make those payments.
(6) Where a claimant is liable to make payments in respect of two (but not more
than two) dwellings, that claimant must be treated as occupying both dwellings as the
home only–
(a)
where that claimant has left and remains absent from the former dwelling
occupied as the home through fear of violence in that dwelling or of violence
by a former member of the claimant’s family and it is reasonable that housing
costs should be met in respect of both that claimant’s former dwelling and
that claimant’s present dwelling occupied as the home;
(b)
in the case of a couple or a member of a polygamous marriage where a
partner is a full-time student or is on a training course and it is unavoidable
that that student, or they, should occupy two separate dwellings and
reasonable that housing costs should be met in respect of both dwellings; or
(c)
in the case where a claimant has moved into a new dwelling occupied as the
home, except where sub-paragraph (5) applies, for a period not exceeding
four benefit weeks from the first day of the benefit week in which the move
occurs if that claimant’s liability to make payments in respect of two
dwellings is unavoidable.
(7) Where–
(a)
a claimant has moved into a dwelling and was liable to make payments in
respect of that dwelling before moving in;
(b)
that claimant had claimed an income-related allowance before moving in
and either that claim has not yet been determined or it has been determined
but an amount has not been included under this Schedule and if the claim
has been refused a further claim has been made within four weeks of the date
on which the claimant moved into the new dwelling occupied as the home;
and
(c)
the delay in moving into the dwelling in respect of which there was liability
to make payments before moving in was reasonable and–
(i) that delay was necessary in order to adapt the dwelling to meet the
disablement needs of the claimant or any member of the claimant’s family;
(ii) the move was delayed pending the outcome of an application for a social
fund payment under Part 8 of the Contributions and Benefits Act to meet
a need arising out of the move or in connection with setting up the home
in the dwelling, and–
(aa) a member of the claimant’s family is aged five or under;
(bb) the claimant is a person in respect of whom the main phase
employment and support allowance is payable;
(cc) the claimant’s applicable amount includes a pensioner premium;
(dd) the claimant’s applicable amount includes a severe disability
premium; or
(ee) a child tax credit is paid for a member of the claimant’s family who
is disabled or severely disabled for the purposes of section 9(6) of
the Tax Credits Act; or
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(iii) the claimant became liable to make payments in respect of the dwelling
while that claimant was a patient or was in residential accommodation,
that claimant is to be treated as occupying the dwelling as the home for any period not
exceeding four weeks immediately prior to the date on which that claimant moved
into the dwelling and in respect of which that claimant was liable to make payments.
(8) This sub-paragraph applies to a claimant who enters residential accommodation–
(a)
for the purpose of ascertaining whether the accommodation suits that
claimant’s needs; and
(b)
with the intention of returning to the dwelling which that claimant normally
occupies as the home should, in the event, the residential accommodation
prove not to suit that claimant’s needs,
and while in the accommodation, the part of the dwelling which that claimant normally
occupies as the home is not let or sub-let to another person.
(9) A claimant to whom sub-paragraph (8) applies is to be treated as occupying the
dwelling that the claimant normally occupies as the home during any period
(commencing on the day that claimant enters the accommodation) not exceeding 13
weeks in which the claimant is resident in the accommodation, but only in so far as the
total absence from the dwelling does not exceed 52 weeks.
(10) A claimant, other than a claimant to whom sub-paragraph (11) applies, is to
be treated as occupying a dwelling as the home throughout any period of absence not
exceeding 13 weeks, if, and only if–
(a)
that claimant intends to return to occupy the dwelling as the home;
(b)
the part of the dwelling normally occupied by that claimant has not been let
or sub-let to another person; and
(c)
the period of absence is unlikely to exceed 13 weeks.
(11) This sub-paragraph applies to a claimant whose absence from the dwelling
that that claimant normally occupies as the home is temporary and–
(a)
that claimant intends to return to occupy the dwelling as the home;
(b)
the part of the dwelling normally occupied by that claimant has not been let
or sub-let; and
(c)
that claimant is–
(i) detained in custody on remand pending trial or, as a condition of bail,
required to reside–
(aa) in a dwelling other than the dwelling that claimant occupies as the
home; or
(bb) in premises approved under section 13 of the Offender Management
Act 2007(a),
or, detained pending sentence upon conviction;
(ii) resident in a hospital or similar institution as a patient;
(iii) undergoing or, as the case may be, that claimant’s partner or dependant
child is undergoing, in the United Kingdom or elsewhere, medical
treatment or medically approved convalescence, in accommodation other
than residential accommodation;
(iv) following, in the United Kingdom or elsewhere, a training course;
(v) undertaking medically approved care of a person residing in the United
Kingdom or elsewhere;
(vi) undertaking the care of a child whose parent or guardian is temporarily
absent from the dwelling normally occupied by that parent or guardian
for the purpose of receiving medically approved care or medical
treatment;
( a ) 2007 c. 21.
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EMPLOYMENT AND SUPPORT ALLOWANCE REGULATIONS 2008
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(vii) a claimant who is, whether in the United Kingdom or elsewhere, receiving
medically approved care provided in accommodation other than
residential accommodation;
(viii) a full-time student to whom sub-paragraph (3) or (6)(b) does not apply;
(ix) a claimant other than a claimant to whom sub-paragraph (8) applies, who
is receiving care provided in residential accommodation; or
(x) a claimant to whom sub-paragraph (6)(a) does not apply and who has left
the dwelling that claimant occupies as the home through fear of violence
in that dwelling, or by a person who was formerly a member of that
claimant’s family; and
(d)
the period of that claimant’s absence is unlikely to exceed a period of 52
weeks, or in exceptional circumstances, is unlikely substantially to exceed
that period.
(12) A claimant to whom sub-paragraph (11) applies is to be treated as occupying
the dwelling that claimant normally occupies as the home during any period of absence
not exceeding 52 weeks beginning with the first day of that absence.
(13) In this paragraph–
"medically approved” means certified by a medical practitioner;
“patient” means a person who is undergoing medical or other treatment as an in-
patient in a hospital or similar institution;
“residential accommodation” means accommodation which is a care home, an
Abbeyfield Home or an independent hospital;
“training course” means such a course of training or instruction provided wholly
or partly by or on behalf of or in pursuance of arrangements made with, or approved
by or on behalf of, Scottish Enterprise, Highlands and Islands Enterprise, a
government department or the Secretary of State.
Housing costs not met
6.—(1) No amount may be met under the provisions of this Schedule–
(a)
in respect of housing benefit expenditure; or
(b)
where the claimant is living in a care home, an Abbeyfield Home or an
independent hospital except where the claimant is living in such a home or
hospital during a temporary absence from the dwelling the claimant occupies
as the home and in so far as they relate to temporary absences, the provisions
of paragraph 5(8) to (12) apply to that claimant during that absence.
(2)  Subject to the following provisions of this paragraph, loans which, apart from
this paragraph, qualify under paragraph 16 (loans on residential property) must not so
qualify where the loan was incurred during the relevant period and was incurred–
(a)
after 27th October 2008; or
̈1(b)
after 2nd May 1994 and the housing costs applicable to that loan were not
1Para. 6(2)(b)
met by virtue of the former paragraph 5A of Schedule 3 to the Income Support
substituted by reg.
Regulations, or paragraph 4(2)(a) of Schedule 3 to the Income Support
16(d)(i) of S.I. 2008/
2428 as from 27.10.08.
Regulations, paragraph 4(2)(a) of Schedule 2 to the Jobseeker’s Allowance
Regulations or paragraph 5(2)(a) of Schedule 2 to the State Pension Credit
Regulations;̇
(c)
subject to sub-paragraph (3), in the 26 weeks preceding 27th October 2008
by a person–
(i) who was not at that time entitled to income support, income-based
jobseeker’s allowance or state pension credit; and
(ii) who becomes, or whose partner becomes entitled to an income-related
allowance after 27th October 2008 and that entitlement is within 26
weeks of an earlier entitlement to income support, an income-based
jobseeker’s allowance or state pension credit of the claimant or the
claimant’s partner.
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(3) Sub-paragraph (2)(c) will not apply in respect of a loan where the claimant has
interest payments on that loan met without restrictions under an award of income
support in respect of a period commencing before 27th October 2008.
(4) The “relevant period” for the purposes of this paragraph is any period during
which the person to whom the loan was made–
(a)
is entitled to an income-related allowance, an income-based jobseeker’s
allowance, income support or state pension credit; or
(b)
has a partner and the partner is entitled to an income-related allowance, an
income-based jobseeker’s allowance, income support or state pension credit,
together with any linked period, that is to say a period falling between two periods
separated by not more than 26 weeks in which one of the paragraphs (a) or (b) is
satisfied.
(5) For the purposes of sub-paragraph (4), a person is to be treated as entitled to an
income-related allowance during any period when that person or that person’s partner
was not so entitled because–
(a)
that person or that person’s partner was participating in an employment
programme specified in regulation 75(1)(a)(ii) of the Jobseeker’s Allowance
Regulations or in the Intensive Activity Period specified in regulation
75(1)(a)(iv) of those Regulations; and
(b)
in consequence of such participation that person or that person’s partner
was engaged in remunerative work or had an income in excess of the
claimant’s applicable amount as prescribed in Part 9.
(6) A person treated by virtue of paragraph 15 as being in receipt of an income-
related allowance for the purposes of this Schedule is not to be treated as entitled to an
income-related allowance for the purposes of sub-paragraph (4).
(7) For the purposes of sub-paragraph (4)–
(a)
any week in the period of 26 weeks ending on 1st October 1995 on which
there arose an entitlement to income support such as is mentioned in that
sub-paragraph must be taken into account in determining when the relevant
period commences; and
(b)
two or more periods of entitlement and any intervening linked periods must
together form a single relevant period.
(8) Where the loan to which sub-paragraph (2) refers has been applied–
(a)
for paying off an earlier loan, and that earlier loan qualified under paragraph
16 during the relevant period; or
(b)
to finance the purchase of a property where an earlier loan, which qualified
under paragraph 16 or 17 during the relevant period in respect of another
property, is paid off (in whole or in part) with monies received from the sale
of that property,
then the amount of the loan to which sub-paragraph (2) applies is the amount (if any)
by which the new loan exceeds the earlier loan.
(9) Notwithstanding the preceding provisions of this paragraph, housing costs must
be met in any case where a claimant satisfies any of the conditions specified in sub-
paragraphs (10) to (13), but–
(a)
those costs must be subject to any additional limitations imposed by the
sub-paragraph; and
(b)
where the claimant satisfies the conditions in more than one of these sub-
paragraphs, only one of them will apply in that claimant’s case and the one
that applies will be the one most favourable to the claimant.
(10) The conditions specified in this sub-paragraph are that–
(a)
during the relevant period the claimant or a member of the claimant’s family
acquires an interest (“the relevant interest”) in a dwelling which that claimant
then occupies or continues to occupy, as the home; and
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(b)
in the week preceding the week in which the relevant interest was acquired,
housing benefit was payable to the claimant or a member of the claimant’s
family,
so however that the amount to be met by way of housing costs will initially not exceed
the aggregate of–
(i) the housing benefit payable in the week mentioned at sub-paragraph
(10)(b); and
(ii) any amount included in the applicable amount of the claimant or a member
of the claimant’s family in accordance with regulation 67(1)(c) or 68(1)(d)
in that week,
and is to be increased subsequently only to the extent that it is necessary to take
account of any increase, arising after the date of the acquisition, in the standard rate or
in any housing costs which qualify under paragraph 18 (other housing costs).
(11) The condition specified in this sub-paragraph is that the loan was taken out,
or an existing loan increased, to acquire alternative accommodation more suited to
the special needs of a disabled person than the accommodation which was occupied
before the acquisition by the claimant.
(12) The conditions specified in this sub-paragraph are that–
(a)
the loan commitment increased in consequence of the disposal of the
dwelling occupied as the home and the acquisition of an alternative such
dwelling; and
(b)
the change of dwelling was made solely by reason of the need to provide
separate sleeping accommodation for ̈1persons of different sexes aged 10
1Words in para. 6(12)(b)
or over but aged under 20̇ who belong to the same family as the claimant.
substituted by reg.
16(d)(ii) of S.I. 2008/
(13) The conditions specified in this sub-paragraph are that–
2428 as from 27.10.08.
(a)
during the relevant period the claimant or a member of the claimant’s family
acquires an interest (“the relevant interest”) in a dwelling which that claimant
then occupies as the home; and
(b)
in the week preceding the week in which the relevant interest was acquired,
the applicable amount of the claimant or a member of the claimant’s family
included an amount determined by reference to paragraph 18 and did not
include any amount specified in paragraph 16 or paragraph 17,
so however that the amount to be met by way of housing costs will initially not exceed
the amount so determined, and will be increased subsequently only to the extent that
it is necessary to take account of any increase, arising after the date of acquisition, in
the standard rate or in any housing costs which qualify under paragraph 18.
(14)  The following provisions of this Schedule will have effect subject to the
provisions of this paragraph.
Apportionment of housing costs
7.—(1) Where the dwelling occupied as the home is a composite hereditament
and–
(a)
before 1st April 1990 for the purposes of section 48(5) of the General Rate
Act 1967(a) (reduction of rates on dwellings), it appeared to a rating authority
or it was determined in pursuance of subsection (6) of section 48 of that Act
that the hereditament, including the dwelling occupied as the home, was a
mixed hereditament and that only a proportion of the rateable value of the
hereditament was attributable to use for the purpose of a private dwelling;
or
(b)
in Scotland, before 1st April 1989 an assessor acting pursuant to section
45(1) of the Water (Scotland) Act 1980(b) (provision as to valuation roll)
( a ) 1967 c. 9.
( b ) 1980 c. 45.
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has apportioned the net annual value of the premises including the dwelling
occupied as the home between the part occupied as a dwelling and the
remainder,
the amounts applicable under this Schedule are to be such proportion of the amounts
applicable in respect of the hereditament or premises as a whole as is equal to the
proportion of the rateable value of the hereditament attributable to the part of the
hereditament used for the purposes of a private tenancy or, in Scotland, the proportion
of the net annual value of the premises apportioned to the part occupied as a dwelling
house.
(2) Subject to sub-paragraph (1) and the following provisions of this paragraph,
where the dwelling occupied as the home is a composite hereditament, the amount
applicable under this Schedule is to be the relevant fraction of the amount which
would otherwise be applicable under this Schedule in resp