The Employment and Support Allowance Regulations 2008

• Citation: S.I. 2008/794
• Sections: 395

Section 1 Citation, commencement and application

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) These Regulations do not apply to a particular case on any day on which section 33(1)(b) of the 2012 Act (abolition of income-related employment and support allowance) is in force and applies in relation to that case.

Section 2 Interpretation

(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 ;

“the 2012 Act ” means the Welfare Reform Act 2012;

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“ 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 ;

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

“ aircraft worker ” means a person who is, or has been, employed under a contract of service either as a pilot, commander, navigator or other member of the crew of any aircraft, or in any other capacity on board any aircraft where—

the employment in that other capacity is for the purposes of the aircraft or its crew or of any passengers or cargo or mail carried on that aircraft; and

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;

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

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

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

“ attendance allowance ” means—

an attendance allowance under section 64 of the Contributions and Benefits Act;

an increase of disablement pension under section 104 or 105 of that Act;

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a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983 or any analogous payment;

any payment based on the need for attendance which is paid as an addition to a war disablement pension;

“basic rate” has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);

“ benefit Acts ” means the Contributions and Benefits Act, Jobseekers Act , Part 1 of the Act and the Pensions Act 2014 ;

“ 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—

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

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 ... has the meaning assigned to it by section 3 of the Care Standards Act 2000 , in Wales means a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 which is provided wholly or mainly to persons aged 18 or over and in Scotland means a care home service within the meaning assigned to it by paragraph 2 of schedule 12 to the Public Services Reform (Scotland) Act 2010 ;

“ carer's allowance ” means an allowance under section 70 of the Contributions and Benefits Act;

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

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

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

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

“child disability payment” has the meaning given in regulation 2 of the DACYP Regulations;

“ 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 ;

“ concessionary payment ” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged ... to a Departmental Expenditure Vote to which payments of benefit or tax credits under the benefit Acts or the Tax Credits Act are charged;

“ confinement ” has the meaning given to it by section 171(1) of the Contributions and Benefits Act ;

“contribution-based jobseeker’s allowance” means an allowance under the Jobseekers Act as amended by the provisions of Part 1 of Schedule 14 to the 2012 Act that remove references to an income-based allowance, and a contribution-based allowance under the Jobseekers Act as that Act has effect apart from those provisions;

“ 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—

in relation to England and Wales, a member of a London borough council, a county council, a county borough 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

in relation to Scotland, a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 ;

“ councillor's allowance ” means—

in England ..., an allowance under or by virtue of—

section 173 or 177 of the Local Government Act 1972 ; or

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 ,

other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972; or

in Scotland, an allowance or remuneration under or by virtue of—

a scheme made by virtue of section 18 of the Local Government and Housing Act 1989; or

section 11 of the Local Governance (Scotland) Act 2004 ; or

in Wales, an allowance under or by virtue of a scheme made by virtue of section 18 of the Local Government and Housing Act 1989 other than such an allowance as is mentioned in section 173(4) of the Local Government Act 1972;

“couple” means—

two people who are married to, or civil partners of, each other and are members of the same household; or

two people who are not married to, or civil partners of, each other but are living together as if they were a married couple or civil partners ;

“ 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;

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

“daily living component” means the daily living component of personal independence payment under section 78 of the 2012 Act ;

“ 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;

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“ employment zone ” means an area within Great Britain designated for the purposes of section 60 of the Welfare Reform and Pensions Act 1999 and an “ employment zone programme ” means a programme established for such an area or areas designed to assist claimants for a jobseeker's allowance to obtain sustainable employment;

“enactment” includes an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament or the National Assembly for Wales ;

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

“ family ” means—

a couple;

a couple and a member of the same household for whom one of them is or both are responsible and who is a child or a young person;

a person who is not a member of a couple and a member of the same household for whom that person is responsible and who is a child or a young person;

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

“First-tier Tribunal” has the meaning given by section 3(1) of the Tribunals, Courts and Enforcement Act 2007;

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

“ 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;

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

“ guaranteed income payment ” means a payment made under article 14(1)(b) or 21(1)(a) of the Armed Forces and Reserve Forces (Compensation Scheme) Order 2005 ;

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

“ health care professional ” means—

a registered medical practitioner;

a registered nurse; or

an occupational therapist or physiotherapist registered with a regulatory body established by an Order in Council under section 60 of the Health Act 1999 ;

“ Health Service Act ” means the National Health Service Act 2006 ;

“ Health Service (Wales) Act ” means the National Health Service (Wales) Act 2006 ;

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

“ housing association ” has the meaning given to it by section 1(1) of the Housing Associations Act 1985 ;

“ 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 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 ;

“ 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 ;

“independent hospital”—

in England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not a health service hospital as defined by that section;

in Wales, has the meaning assigned to it by section 2 of the Care Standards Act 2000; and

in Scotland, means an independent health care service as defined in section 10F(1)(a) and (b) of the National Health Service (Scotland) Act 1978;

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

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“ Jobseekers Act ” means the Jobseekers Act 1995;

“ Jobseeker's Allowance Regulations ” means the Jobseeker's Allowance Regulations 1996 ;

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

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

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

“local welfare provision” means occasional financial or other assistance given by a local authority, the Scottish Ministers or the Welsh Ministers, or a person authorised to exercise any function of, or provide a service to, them, to or in respect of individuals for the purpose of—

meeting, or helping to meet, an immediate short term need—

arising out of an exceptional event, or exceptional circumstances; and

that requires to be met in order to avoid a risk to the well-being of an individual; or

enabling individuals to establish or maintain a settled home, where those individuals have been or, without the assistance, might otherwise be—

in prison, hospital, a residential care establishment or other institution; or

homeless or otherwise living an unsettled way of life;

“ 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;

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

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“ 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 or where the claimant is a member of the work-related activity group ;

“the Mandatory Work Activity Scheme” means a scheme within section 17A of the Jobseekers Act 1995, known by that name and provided pursuant to arrangements made by the Secretary of State that is designed to provide work or work-related activity for up to 30 hours per week over a period of four consecutive weeks with a view to assisting claimants to improve their prospects of obtaining employment;

“ mariner ” means a person who is or has been in employment under a contract of service either as a master or member of the crew of any ship or vessel, or in any other capacity on board any ship or vessel where—

the employment in that other capacity is for the purposes of that ship or vessel or her crew or any passengers or cargo or mails carried by the ship or vessel; and

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;

but does not include a person who is in employment as a member of Her Majesty's forces;

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“ medical evidence ” , except in regulation 32A, means—

evidence from a health care professional approved by the Secretary of State; and

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 ;

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“ 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—

over 16 years of age; and

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;

“member of the work-related activity group” means a claimant who has or is treated as having limited capability for work under Part 5 of these Regulations other than by virtue of regulation 30 of these Regulations;

“MFET Limited” means the company limited by guarantee (number 7121661) of that name, established for the purpose in particular of making payments in accordance with arrangements made with the Secretary of State to persons who have acquired HIV as a result of treatment by the NHS with blood or blood products;

“ miscarriage of justice compensation payment ” means—

a payment made under section 133(1) of the Criminal Justice Act 1988; or

any other payment made by the Secretary of State, the Scottish Ministers or, in Northern Ireland, the Department of Justice, for the purpose of compensating a person—

for a miscarriage of justice in criminal proceedings, or

for being wrongfully charged with a criminal offence;

“ mobility supplement ” means any supplement under article 20 of the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 2006 including such a supplement by virtue of any other scheme or order or under article 25A of the Personal Injuries (Civilians) Scheme 1983 ;

“the National Emergencies Trust” means the registered charity of that name (number 1182809) established on 28th March 2019;

“National Minimum Wage” means the rate of the national minimum wage specified in regulation 11 of the National Minimum Wage Regulations 1999 (rate of the national minimum wage);

“ neonatal care leave ” means leave under section 80EF of the Employment Rights Act 1996;

“ 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;

“new style ESA” means an allowance under Part 1 of the Act as amended by the provisions of Schedule 3, and Part 1 of Schedule 14, to the 2012 Act that remove references to an income-related allowance;

“ 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 ;

“ 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;

“parental bereavement leave” means leave under section 80EA of the Employment Rights Act 1996;

“ partner ” means where a claimant—

is a member of a couple, the other member of that couple;

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;

“ passenger ” means any person carried on a ship except—

a person employed or engaged in any capacity on board the ship on the business of the ship; or

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;

“paternity leave” means a period of absence from work on ... paternity leave by virtue of section 80A or 80B of the Employment Rights Act 1996 ...;

“ 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 age disability payment ” has the meaning given in regulation 2 of the Disability Assistance for Older People (Scotland) Regulations 2024;

“ 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 ;

“ period of limited capability for work ” means except in paragraph (5), a period throughout which a person has, or is treated as having, limited capability for work, and does not include a period which is outside the prescribed time for claiming as specified in regulation 19 of the Social Security (Claims and Payments) Regulations 1987 ;

“ 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 independence payment” means personal independence payment under Part 4 of the 2012 Act ;

“ personal pension scheme ” means—

a personal pension scheme as defined by section 1 of the Pension Schemes Act 1993 ;

an annuity contract or trust scheme approved under section 620 or 621 of the Income and Corporation Taxes Act 1988 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 ;

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—

either party has for the time being any spouse additional to the other party; and

the claimant, the other party to the marriage and the additional spouse are members of the same household;

“ the Post Office ” means Post Office Limited (registered number 02154540);”;

“ Post Office compensation payment ” means a payment made by the Post Office or the Secretary of State for the purpose of providing compensation or support which is—

in connection with the failings of the Horizon system; or

otherwise payable following the judgment in Bates and Others v Post Office Ltd ((No. 3) “Common Issues”);”;

“public authority” includes any person certain of whose functions are functions of a public nature;

“the qualifying age for state pension credit” means—

in the case of a woman, pensionable age, and

in the case of a man, the age which is pensionable age in the case of a woman born on the same day as the man;

“ qualifying person ” means a person in respect of whom a Grenfell Tower payment , a child abuse payment , a Windrush payment, a Post Office compensation payment , a vaccine damage payment , an LGBT Financial Recognition Scheme payment or a miscarriage of justice compensation payment has been made or payment has been made from the Fund, the Eileen Trust , MFET Limited , the Skipton Fund , the Caxton Foundation , the Scottish Infected Blood Support Scheme , an approved blood scheme , the London Emergencies Trust, the We Love Manchester Emergency Fund , the National Emergencies Trust , the Victims of Overseas Terrorism Compensation Scheme or the London Bombings Relief Charitable Fund;

“ 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;

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“ relevant enactment ” means the Army Act 1955 , the Air Force Act 1955 , the Naval Discipline Act 1957 , the Matrimonial Proceedings Children Act 1958 , the Social Work (Scotland) Act 1968 , the Family Law Reform Act 1969 , the Children and Young Persons Act 1969 , the Matrimonial Causes Act 1973 , the Domestic Proceedings and Magistrates' Courts Act 1978 , the Adoption and Children (Scotland) Act 2007 , the Family Law Act 1986 , the Children Act 1989 and the Adoption and Children Act 2002 ;

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“ remunerative work ” has the meaning prescribed in regulations 41 and 42 except in relation to Schedules 6 and 7;

“ Scottish adult disability living allowance ” has the meaning given in regulation 2 of the Disability Assistance (Scottish Adult Disability Living Allowance) Regulations 2025;

“Scottish basic rate” means the rate of income tax of that name calculated in accordance with section 6A of the Income Tax Act 2007;

“Scottish Infected Blood Support Scheme” means the scheme of that name administered by the Common Services Agency (constituted by section 10 of the National Health Service (Scotland) Act 1978);

“Scottish taxpayer” has the same meaning as in Chapter 2 of Part 4A of the Scotland Act 1998;

“ 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—

an employment zone programme; or

a programme provided or other arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 (functions in relation to training for employment etc.);

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“shared parental leave” means leave under section 75E or 75G of the Employment Rights Act 1996;

“ single claimant ” means a claimant who neither has a partner nor is a lone parent or a person who has no partner and who is responsible for and a member of the same household as a young person ;

“ 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 out of sums allocated to it for distribution under that section;

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“state pension credit” means a state pension credit under the State Pension Credit Act 2002;

“ subsistence allowance ” means an allowance which an employment zone contractor has agreed to pay to a person who is participating in an employment zone programme;

“ the Tax Credits Act ” means the Tax Credits Act 2002 ;

“ 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 12 months ;

“traineeship” means a course which—

is funded (in whole or in part) by, or under arrangements made by, the—

Secretary of State under section 14 of the Education Act 2002, or

Chief Executive of Education and Skills Funding;

lasts for no more than 6 months;

includes training to help prepare the participant for work and a work experience placement, and

is open to persons who on the first day of the course have reached the age of 16 but not the age of 25;

“ training ” means—

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

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—

out of public funds by a Government department or by or on behalf of the Secretary of State for Work and Pensions, Skills Development Scotland, Scottish Enterprise or Highlands and Islands Enterprise, the ... ... or the Welsh Ministers;

to a person for that person's maintenance or in respect of a member of that person's family; and

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, Skills Development Scotland, 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;

“universal credit” means universal credit under Part 1 of the 2012 Act;

“ vaccine damage payment ” means a payment made under the Vaccine Damage Payments Act 1979;

“ the Victims of Overseas Terrorism Compensation Scheme ” means the scheme of that name established by the Ministry of Justice in 2012 under section 47 of the Crime and Security Act 2010;

“ voluntary organisation ” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;

“ war disablement pension ” means any retired pay or pension or allowance payable in respect of disablement under an instrument specified in section 639(2) of the Income Tax (Earnings and Pensions) Act 2003 ;

“ war widow's pension ” means any pension or allowance payable to a woman as a widow 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;

“ war widower's pension ” means any pension or allowance 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—

as respects England and Wales, any water and sewerage charges under Chapter 1 of Part 5 of the Water Industry Act 1991 ;

as respects Scotland, any water and sewerage charges under Part 2 of the Local Government etc. (Scotland) Act 1994 ,

in so far as such charges are in respect of the dwelling which a person occupies as the home;

“the We Love Manchester Emergency Fund” means the registered charity of that name (number 1173260) established on 30th May 2017;

“ week ” means a period of 7 days except in relation to regulation 26;

“Windrush payment” means a payment made under the Windrush Compensation Scheme (Expenditure) Act 2020;

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“ 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 in England, Wales or Scotland;

“ working tax credit ” means a working tax credit under section 10 of the Tax Credits Act;

“ young person ” is a person who, except where section 6 of the Children (Leaving Care) Act 2000 (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 ... paragraph 15(2) of Schedule 6 (housing costs – linking rule)—

“ child support maintenance ” means such periodical payments as are referred to in section 3(6) of the Child Support Act 1991 and includes any payments made by 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 ;

“ 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.

(5) For the purposes of paragraph 4 of Schedule 1 to the Act (condition relating to youth) “period of limited capability for work” means a period throughout which a person has, or is treated as having, limited capability for work.

(6) Subject to paragraph (7), for the purposes of section 24(3A)(b) of the Act, a lone parent is to be treated as responsible for, and a member of the same household as, a person under the age of 16 only where the circumstances set out in regulation 156 apply.

(7) For the purposes of sections 12 and 13 of the Act, and regulations made under those sections, a lone parent is to be treated as responsible for, and a member of the same household as a child only where the lone parent would be treated as responsible for and a member of the same household as such a child under regulations 15 and 16 of the Income Support (General) Regulations 1987, if references in those Regulations to income support were to employment and support allowance.

(8) References in these Regulations to a person or claimant participating as a service user are to—

(a) a person who is being consulted by or on behalf of—

(i) a body which has a statutory duty to provide services in the field of health, social care or social housing; or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such services,

in their capacity as a user, potential user, carer of a user or person otherwise affected by the provision of those services; or

(ab) a person who is being consulted by or on behalf of—

(i) the Secretary of State in relation to any of the Secretary of State’s functions in the field of social security or child support or under section 2 of the Employment and Training Act 1973; or

(ii) a body which conducts research or undertakes monitoring for the purpose of planning or improving such functions,

in their capacity as a person affected or potentially affected by the exercise of those functions or the carer of such a person;

(b) the carer of a person consulted under sub-paragraphs (a) or (ab) .

Section 2A Disapplication of section 1(1A) of the Social Security Administration Act 1992

Section 1(1A) of the Social Security Administration Act 1992 (requirement to state a national insurance number) shall not apply to a person who—

(a) is a person in respect of whom a claim for employment and support allowance is made;

(b) is subject to immigration control within the meaning of section 115(9)(a) of the Immigration and Asylum Act;

(c) does not satisfy the basic conditions of entitlement to employment and support allowance for the purposes of section 1(3) of the Act; and

(d) has not previously been allocated a national insurance number.

Section 3 Rounding of fractions

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.

Section 4 The end of the assessment phase

(1) Subject to paragraphs (2) and (3) and regulation 5 , the assessment phase in relation to a claimant ends on the last day of the relevant period .

(2) Where paragraph (3) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(3) This paragraph applies where, at the end of the relevant period —

(a) the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b) the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).

(4) In this regulation, “the relevant period” means the period of 13 weeks beginning with—

(a) the first day of the assessment phase as determined under section 24(2)(a) of the Act; or

(b) where that day immediately follows an extended period of sickness, the first day of the extended period of sickness.

(5) In paragraph (4), “extended period of sickness” means a period in which the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013 (extended period of sickness).

Section 5 The assessment phase – previous claimants

(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 paragraphs (3), (3A) and (4) , 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.

(1A) For the purposes of paragraph (1), any period when the claimant was—

(a) entitled to a jobseeker’s allowance; and

(b) treated as capable of work or as not having limited capability for work under regulation 55ZA of the Jobseeker’s Allowance Regulations 1996 or regulation 46A of the Jobseeker’s Allowance Regulations 2013,

is to be treated as a period when the claimant was previously entitled to an employment and support allowance.

(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) ...;

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work; ...

(iii) the assessment phase had not ended in the previous period for which the claimant was entitled to an employment and support allowance; and

(iv) the period for which the claimant was previously entitled was no more than 13 weeks; or

(b)

(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),

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii) the previous period of limited capability for work was terminated by virtue of a determination that the claimant did not have limited capability for work,

(iv) the period for which the claimant was previously entitled was no more than 13 weeks, and

(v) a determination is made in relation to the current period of limited capability for work that the claimant has or is treated as having limited capability for work, other than under regulation 30; or

(c)

(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),

(ii) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(iii) in relation to the previous award of an employment and support allowance, a determination was made that the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv) the period for which the claimant was previously entitled was no more than 13 weeks.

(3) Where paragraph (3A) applies, the assessment phase is to end when it is determined whether the claimant has limited capability for work.

(3A) This paragraph applies where on the day referred to in paragraph (1)(b)—

(a) the claimant has not been assessed in accordance with a limited capability for work assessment; and

(b) the claimant has not been treated as having limited capability for work in accordance with regulations 20, 25, 26, 29 or 33(2) (persons to be treated as having limited capability for work).

(4) Where a person has made and is pursuing an appeal against a decision of the Secretary of State that embodies a determination that the claimant does not have limited capability for work—

(a) paragraphs (3) and (3A) do not apply; and

(b) paragraph (1) does not apply to any period of limited capability for work to which regulation 147A(2) applies until a determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal.

Section 6 The assessment phase – claimants appealing against a decision

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 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

(1) Subject to paragraph (2), sections 2(2)(a), 2(3)(a), 4(4)(a) and 4(5)(a) sections 2(2)(a) and 4(4)(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 which contains an express statement that the claimant is terminally ill; ...

(b) the case is a relevant linked case;

(c)

(i) the claimant’s entitlement to an employment and support allowance commences within 12 weeks of the claimant’s entitlement to income support coming to an end;

(ii) in relation to that entitlement to income support, immediately before it ended the claimant’s applicable amount included the disability premium 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 2012 ; or

(d) a claimant is entitled to an employment and support allowance by virtue of section 1B of the Act (further entitlement after time-limiting).

(1A) For the purposes of paragraph (1)(b) a relevant linked case is a case mentioned in paragraph (1B) where a 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).

(1B) Paragraph (1A) applies to the following cases—

(a) case 1 is where–

(i) the claimant was entitled to an employment and support allowance (including entitlement to a component under sections 2(2), 2(3), 4(4) or 4(5) 2(2) or 4(4) of the Act or the claimant was a member of the work-related activity group ) in the earlier period of limited capability for work, and

(ii) the previous period for which the claimant was entitled to an employment and support allowance was terminated other than by virtue of a determination that the claimant did not have limited capability for work;

(b) case 2 is where–

(i) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii) the previous period for which the claimant was entitled to an employment and support allowance was terminated by virtue of a determination that the claimant did not have, or was treated as not having, limited capability for work, and

(iv) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30;

(c) case 3 is where–

(i) the claimant was entitled to an employment and support allowance in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was 13 weeks or longer,

(iii) the previous period for which the claimant was entitled to an employment and support allowance was terminated before it could be determined whether the claimant had limited capability for work or was treated as having limited capability for work, other than under regulation 30, and

(iv) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30; and

(d) case 4 is where–

(i) the claimant was entitled to an employment and support allowance (including entitlement to a component under sections 2(2), 2(3), 4(4) or 4(5) 2(2) or 4(4) of the Act or the claimant was a member of the work-related activity group ) in the earlier period of limited capability for work,

(ii) the previous period for which the claimant was entitled to an employment and support allowance was terminated because it was determined that the claimant did not have limited capability for work or was treated as not having limited capability for work, and

(iii) it is determined in relation to the current period of limited capability for work that the claimant has limited capability for work or is treated as having limited capability for work, other than under regulation 30.

(2) Paragraph (1)(b) does not apply to any period of limited capability for work to which regulation 147A(2) applies until the determination of limited capability for work has been made following the determination of the appeal by the First-tier Tribunal .

Section 7A Conditions relating to national insurance and relevant earnings

(1) A claimant’s relevant earnings for the purposes of paragraph 1(2)(a) of Schedule 1 to the Act (employment and support allowance: conditions relating to national insurance) are the total amount of the claimant’s earnings at the lower earnings limit for the base tax year.

(2) For the purposes of paragraph (1), earnings which exceed the lower earnings limit are to be disregarded.

Section 8 Relaxation of the first contribution condition

(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 claimant has—

(i) earnings at the lower earnings limit in that tax year on which primary Class 1 contributions have been paid or treated as paid which in total, and disregarding any earnings which exceed the lower earnings limit for that year, are not less than that limit multiplied by 26; or

(ii) earnings factors in that tax year derived from Class 2 contributions multiplied by 26.

(2) The conditions referred to in paragraph (1) are that the claimant—

(a) was entitled to a carer's allowance or carer support payment 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 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 (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

(ca) in respect of any week in the last complete tax year preceding the relevant benefit year, is entitled to be credited with earnings in accordance with regulation 9E of the Social Security (Credits) Regulations 1975 (credits for certain spouses and civil partners of members of Her Majesty’s forces); ...

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 9 Condition relating to youth – claimants aged 20 or over but under 25

(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 course in preparation for a degree, a diploma of higher education, a higher national diploma, a higher national diploma of the Business and Technology Education Council or Qualifications Scotland , or a teaching qualification; or

any other course which is of a standard above ordinary national diploma, a diploma of the Business and Technology Education Council or a higher or advanced higher national certificate of Qualifications Scotland 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—

by attendance at an establishment recognised by the Secretary of State as being, or as comparable to, a university, college or school; or

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.

(6) A claimant is to be treated as not having limited capability for work on a day which is not, for the purposes of paragraph 4(1)(d)(ii) of Schedule 1 to the Act (period of 196 consecutive days preceding the relevant period of limited capability for work), part of any consecutive days of limited capability for work.

Section 10 Condition relating to youth – previous claimants

(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;

(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.

Section 11 Condition relating to youth – residence or presence

(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 217 of the Treaty on the Functioning of the European Union providing, in the field of social security, for the equal treatment of workers who are nationals of the signatory State and their families;

(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 to be responsible for that 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.

Section 12 Condition relating to youth – full-time education

(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.

Section 13 Modification of the relevant benefit year

(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 any benefit year which includes all or part of the period of limited capability for work which includes the relevant benefit week.

(2) This paragraph applies where a claimant has made a claim to employment and support allowance but 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.

Section 14 Meaning of education

(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 Secretary of State under section 14 of the Education Act 2002 or section 100 of the Apprenticeships, Skills, Children and Learning Act 2009 ;

(ia) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 Secretary of State under section 14 of the Education Act 2002 or section 100 of the Apprenticeships, Skills, Children and Learning Act 2009 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 Secretary of State ..., in the student’s learning agreement signed on behalf of the establishment which is funded by the Secretary of State for the delivery of that course;

(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 , regulation 4(2) of the Education (Student Loans) (Scotland) Regulations 2007 or regulation 2(8) of the Education (Student Support) Regulations (Northern Ireland) 2007 .

(2A) Paragraph (2) does not apply to any course of study which the claimant is required to attend for the purpose of meeting a requirement to undertake work-related activity.

(2B) Paragraph (2) does not apply to a traineeship.

(3) In this regulation “ higher education ” means higher education within the meaning of Part 2 of the Further and Higher Education (Scotland) Act 1992 .

Section 15 Claimants to be treated as receiving education

(1) Subject to regulation 18 and paragraph (2) , 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.

(2) A qualifying young person is not to be treated as receiving education if they are participating in a traineeship.

Section 16 Claimants not to be treated as receiving education

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).

Section 17 Courses of study

(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.

Section 18 Circumstances in which the condition that the claimant is not receiving education does not apply

Paragraph 6(1)(g) of Schedule 1 to the Act does not apply where the claimant is entitled to a disability living allowance , Scottish adult disability living allowance , child disability payment , armed forces independence payment , personal independence payment or adult disability payment .

Section 19 Determination of limited capability for work

(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 each descriptor listed in that Schedule which applies in the claimant’s case , 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—

(a) fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, 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—

(a) in respect of any descriptor listed in Part 1 of Schedule 2, from a specific bodily disease or disablement;

(b) in respect of any descriptor listed in Part 2 of Schedule 2, from a specific mental illness or disablement; or

(c) in respect of any descriptor or descriptors listed in—

(i) Part 1 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(ii) Part 2 of Schedule 2, as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.

(6) Where more than one descriptor specified for an activity applies 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

(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.

Section 20 Certain claimants to be treated as having limited capability for work

(1) 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 for cancer by way of chemotherapy or radiotherapy;

(ii) likely to receive such treatment within six months after the date of the determination of capability for work; or

(iii) recovering from such treatment,

and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work.

(c) the claimant is—

(i) excluded or abstains from work ... pursuant to a request or notice in writing lawfully made or given under an enactment; or

(ii) otherwise prevented from working pursuant to an enactment,

by reason of it being known or reasonably suspected that the claimant is infected or contaminated by, or has been in contact with a case of, a relevant infection or contamination ;

(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 (which has the meaning it has in ... the Contributions and Benefits Act) ; and

(ii) is entitled to a maternity allowance under section 35(1) or 35B(1) of the Contributions and Benefits Act ;

(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.

(g) the claimant meets any of the descriptors at paragraph 15 or 16 of Schedule 3 in accordance with regulation 34(2), (3) and (6) where applicable .

(2) In this regulation, “relevant infection or contamination” means—

(a) in England and Wales—

(i) any incidence or spread of infection or contamination, within the meaning of section 45A(3) of the Public Health (Control of Disease) Act 1984 in respect of which regulations are made under Part 2A of that Act (public health protection) for the purpose of preventing, protecting against, controlling or providing a public health response to, such incidence or spread; or

(ii) tuberculosis or any infectious disease to which regulation 9 of the Public Health (Aircraft) Regulations 1979 (powers in respect of persons leaving aircraft) applies or to which regulation 10 of the Public Health (Ships) Regulations 1979 (powers in respect of certain persons on ships) applies; and

(b) in Scotland, any—

(i) infectious disease within the meaning of section 1(5) of the Public Health etc (Scotland) Act 2008, or exposure to an organism causing that disease; or

(ii) contamination within the meaning of section 1(5) of that Act, or exposure to a contaminant,

to which sections 56 to 58 of that Act (compensation) apply.

Section 21 Information required for determining capability for work

(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 ... 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 must not be required for the purposes of making the determination.

(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).

Section 22 Failure to provide information in relation to limited capability for work

(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) the claimant was sent a further request at least three weeks after the date of the first request;

(b) ... at least 1 week has passed since the further request was sent.

Section 23 Claimant may be called for a medical examination to determine whether the claimant has limited capability for work

(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 in person, by telephone or by video .

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned in paragraph (1), the claimant is to be treated as not having limited capability for work.

(3) Paragraph (2) does not apply unless—

(a) written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b) that claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

Section 24 Matters to be taken into account in determining good cause in relation to regulations 22 or 23

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.

Section 25 Hospital in-patients

(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 a patient in a hospital or similar institution, or on any day which is a day of recovery from that treatment.

(2) The circumstances in which a claimant is to be regarded as undergoing treatment falling within paragraph (1) include where the claimant is attending a residential programme of rehabilitation for the treatment of drug or alcohol addiction.

(3) For the purposes of this regulation, a claimant is to be regarded as undergoing treatment as a patient in a hospital or similar institution only if that claimant has been advised by a health care professional to stay in a hospital or similar institution for a period of 24 hours or longer.

(4) For the purposes of this regulation, “day of recovery” means a day on which a claimant is recovering from treatment as a patient in a hospital or similar institution and the Secretary of State is satisfied that the claimant should be treated as having limited capability for work on that day.

Section 26 Claimants receiving certain regular treatment

(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

(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 receiving that treatment or has a day of recovery from that treatment.

(2) A claimant who receives the treatment referred to in paragraph (1) is only to be treated as having limited capability for work from the first week of treatment in which the claimant undergoes no fewer than—

(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.

Section 27 Claimant to be treated as having limited capability for work throughout a day

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.

Section 28 Night workers

(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.

Section 29 Exceptional circumstances

(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) Subject to paragraph (3) 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.

(3) Paragraph (2)(b) does not apply where the risk could be reduced by a significant amount by—

(a) reasonable adjustments being made in the claimant’s workplace; or

(b) the claimant taking medication to manage the claimant’s condition where such medication has been prescribed for the claimant by a registered medical practitioner treating the claimant.

(4) In this regulation “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.

Section 30 Conditions for treating a claimant as having limited capability for work until a determination about limited capability for work has been made

(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) in relation to the claimant’s entitlement to any benefit, allowance or advantage which is dependent on the claimant having limited capability for work, it has not been determined—

(i) in the last determination preceding the date of claim for an employment and support allowance, that the claimant does not have limited capability for work; or

(ii) within the 6 months preceding the date of claim for an employment and support allowance, that the claimant is to be treated as not having limited capability for work under regulation 22 or 23,

unless paragraph (4) applies;

(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Paragraph 2(b) does not apply where a claimant has made and is pursuing an appeal against a relevant decision of the Secretary of State, and that appeal has not yet been determined by the First-tier Tribunal.

(4) This paragraph applies where—

(a) 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;

(b) a disease or bodily or mental disablement from which the claimant was suffering at the time of that determination has significantly worsened; or

(c) 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.

(5) In this regulation a “relevant decision” means—

(a) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work; or

(b) a decision that embodies the first determination by the Secretary of State that the claimant does not have limited capability for work since a previous determination by the Secretary of State or appellate authority that the claimant does have limited capability for work.

(6) In this regulation, “appellate authority” means the First-tier Tribunal, the Upper Tribunal, the Court of Appeal, the Court of Session, or the Supreme Court.

Section 31 Claimant who claims jobseeker's allowance to be treated as not having limited capability for work

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Section 32 Certain claimants to be treated as not having limited capability for work

(1) A claimant who is or has been a member of Her Majesty’s forces is to be treated as not having limited capability for work on any day which is recorded by the Secretary of State ... as a day of sickness absence from duty.

(2) A claimant is to be treated as not having limited capability for work on any day on which the claimant attends a training course in respect of which the claimant is paid a training allowance or premium pursuant to arrangements made under section 2 of the Employment and Training Act 1973 or section 2(3) of the Enterprise and New Towns (Scotland) Act 1990.

(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.

Section 32A Claimants to be treated as not having limited capability for work at the end of the period covered by medical evidence

(1) Where the Secretary of State is satisfied that it is appropriate in the circumstances of the case ... a claimant may be treated as not having limited capability for work if—

(a) the claimant has supplied medical evidence ...;

(b) the period for which medical evidence was supplied has ended;

(c) the Secretary of State has requested further medical evidence; and

(d) the claimant has not, before whichever is the later of either the end of the period of 6 weeks beginning with the date of the Secretary of State’s request or the end of 6 weeks beginning with the day after the end of the period for which medical evidence was supplied—

(i) supplied further medical evidence, or

(ii) otherwise made contact with the Secretary of State to indicate that they wish to have the question of limited capability for work determined.

(2) In this regulation “medical evidence” means evidence provided under regulation 2 or 5 of the Medical Evidence Regulations.

Section 33 Additional circumstances where claimants are to be treated as having limited capability for work

(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) For 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.

Section 34 Determination of limited capability for work-related activity

(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 has limited capability for work-related activity ... and the limitation must 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 the claimant, the claimant is to be assessed as if—

(a) the claimant were fitted with or wearing any prosthesis with which the claimant is normally fitted or normally wears; or, as the case may be,

(b) wearing or using any aid or appliance which is normally, or could reasonably be expected to be, worn or used.

(3A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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,

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.

(6) In assessing the extent of a claimant’s capability to perform any activity listed in Schedule 3, it is a condition that the claimant’s incapability to perform the action arises—

(a) in respect of descriptors 1 to 8, 15(a), 15(b), 16(a) and 16(b)—

(i) from a specific bodily disease or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific physical disease or disablement; or

(b) in respect of descriptors 9 to 14, 15(c), 15(d), 16(c) and 16(d)—

(i) from a specific mental illness or disablement; or

(ii) as a direct result of treatment provided by a registered medical practitioner for a specific mental illness or disablement.

Section 35 Certain claimants to be treated as having limited capability for work-related activity

(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 for cancer by way of chemotherapy or radiotherapy;

(ii) likely to receive such treatment within six months after the date of the determination of capability for work-related activity; or

(iii) recovering from such 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.

Section 35A Relevant linked cases – limited capability for work-related activity

A claimant is to be treated as having limited capability for work-related activity where–

(a) they fall within case 1, as defined in regulation 7(1B)(a); and

(b) in respect of the earlier period of limited capability for work referred to in regulation 7(1B)(a)(i), they had been entitled to a support component under sections 2(2) or 4(4) of the Act.

Section 36 Information required for determining capability for work-related activity

(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 must not be required for the purposes of making the determination.

Section 37 Failure to provide information in relation to work-related activity

(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.

(2) Paragraph (1) does not apply unless—

(a) the claimant was sent a further request at least three weeks after the date of the first request;

(b) ... at least 1 week has passed since the further request was sent.

Section 38 Claimant may be called for a medical examination to determine whether the claimant has limited capability for work-related activity

(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 in person, by telephone or by video .

(2) Subject to paragraph (3), where a claimant fails without good cause to attend for or to submit to an examination mentioned 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—

(a) written notice of the date, time and place for the examination was sent to the claimant at least seven days in advance; or

(b) the claimant agreed to accept a shorter period of notice whether given in writing or otherwise.

Section 39 Matters to be taken into account in determining good cause in relation to regulations 37 or 38

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.

Section 40 A claimant who works to be treated as not entitled to an employment and support allowance

(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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) a member of the First-tier Tribunal where the member is eligible for appointment to be such a member in accordance with article 2(3) of the Qualifications for Appointment of Members to the First-tier Tribunal and Upper Tribunal Order 2008.

(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 referred to in paragraphs 28, 29 or 29A of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) or where the claimant is in receipt of any payment specified in those paragraphs;

(da) duties undertaken in caring for another person who is provided with continuing care by a local authority by virtue of arrangements made under section 26A of the Children (Scotland) Act 1995 and is in receipt of a payment made under that section of that Act;

(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 paragraph (4) , are to be calculated by reference to regulation 28 (night workers).

(7) In this regulation—

“ 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 or sub-sections 49(1) or 49(1A) of the Local Government (Scotland) Act 1973 , of which the claimant is a member by reason of being a councillor.

Section 41 Meaning of “ remunerative work ” for the purposes of paragraph 6(1)(e) of Schedule 1 to the Act

(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.

(3) Paragraph (2) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).

Section 42 Meaning of “ remunerative work ” for the purposes of paragraph 6(1)(f) of Schedule 1 to the Act

(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.

Section 43 Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work

(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 fire-fighter employed by a fire and rescue authority under the Fire and Rescue Services Act 2004 or by the Scottish Fire and Rescue Service established under section 1A of the Fire (Scotland) Act 2005;

(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 ... reserve force prescribed in Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001 ; 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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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) or in respect of whom section 124(1) of that Act (conditions of entitlement to income support) would otherwise have had effect as modified by section 127(b) of that Act (effect of return to work) ;

(c) a person who would otherwise satisfy the conditions set out in paragraph 4 of Schedule 1B to the Income Support Regulations ;

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 , shared parental leave , parental bereavement leave , adoption leave or neonatal care 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.

Section 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 capability for work

(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.

Section 45 Exempt work

(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.

(3) Work for which the earnings in any week do not exceed 16 x National Minimum Wage, subject to paragraph (9A), and which—

(a) is part of the claimant's treatment programme and is done under medical supervision while the claimant is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution; or

(b) is supervised by a person employed by a public or local authority or by a voluntary organisation or community interest company 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 16 x National Minimum Wage, subject to paragraph (9A), ...

(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 (functions of the Secretary of State) or section 2 of the Enterprise and New Towns (Scotland) Act 1990 (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 , 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.

(9A) Where the amount determined by the calculation in paragraphs (3) and (4) would, but for this paragraph, include an amount of–

(a) less than 50p, that amount shall be rounded up to the nearest 50p; or

(b) less than £1 but more than 50p, that amount shall be rounded up to the nearest £1.

(10) In this regulation—

...

...

“ 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.

Section 46 Effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment

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.