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

JurisdictionUK Non-devolved
CitationSI 2010/1907

2010 No. 1907

Social Security

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

Made 27th July 2010

Laid before Parliament 27th July 2010

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

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 123(1)(d) and (e), 135(1), 137(1) and 175(1), (3) and (4) of the Social Security Contributions and Benefits Act 19921, section 79(4) of the Social Security Act 19982, paragraphs 4(4) and (6), 20(1) and 23(1) of Schedule 7 to the Child Support, Pensions and Social Security Act 20003, sections 22, 24, 25(2), (3) and (5), 28(2) and 29 of, and paragraph 2 of Schedule 2 and paragraphs 1(1), 3(b), 7 and 8(1) of Schedule 4 to, the Welfare Reform Act 20074.

The Secretary of State has not referred these Regulations to the Social Security Advisory Committee as it appears to the Secretary of State that by reason of urgency it is inexpedient to do so5.

The Secretary of State has not undertaken consultation with organisations appearing to the Secretary of State to be representative of the authorities concerned, as it appears to the Secretary of State that by reason of urgency it is inexpedient to do so6.

1 GENERAL

PART 1

GENERAL

S-1 Citation and commencement

Citation and commencement

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

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

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

S-2 Interpretation

Interpretation

2.—(1) In these Regulations—

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

the 2008 Regulations” means the Employment and Support Allowance Regulations 20087;

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

“contributory allowance” means an employment and support allowance to which a person is entitled by virtue of these Regulations which was based on an award of incapacity benefit or severe disablement allowance to which the person was entitled8;

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

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

“enactment” includes an enactment contained in subordinate legislation (within the meaning of the Interpretation Act 19789);

“income-related allowance” means an employment and support allowance to which a person is entitled by virtue of these Regulations which was based on an award of income support to which the person was entitled10;

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

“pensionable age” has the meaning given by the rules in paragraph 1 of Schedule 4 to the Pensions Act 199511;

“relevant deduction”, in relation to a person, includes such of the following deductions as fall to be made in relation to the person—

(a) any deduction made under any of the following provisions of the Social Security (Claims and Payments) Regulations 198712

(i) regulation 34A (deductions of mortgage interest which shall be made from benefit and paid to qualified lenders),

(ii) regulation 34B (deductions of mortgage interest which may be made from benefits and paid to qualified lenders in other cases), or

(iii) regulation 35 (deductions which may be made from benefit and paid to third parties);

(b) any deduction made under the Community Charges (Deductions from Income Support) (No.2) Regulations 199013(deductions which may be made from benefit for meeting sums due in respect of community charges);

(c) any deduction made under the Fines (Deductions from Income Support) Regulations 199214(deductions which may be made from an offender’s benefit);

(d) any deduction made under the Council Tax (Deductions from Income Support) Regulations 199315(deductions which may be made from benefit for meeting sums due in respect of council tax);

(e) any deduction in respect of overpayment recovery or recovery of social fund loans made under any of the following provisions of the Administration Act16

(i) section 71 (overpayments-general),

(ii) section 74 (income support and other payments), or

(iii) section 78 (recovery of social fund awards).

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

(a)

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

(b)

(b) electronic communication has the meaning given in section 15(1) of the Electronic Communications Act 200017.

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

(a)

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

(b)

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

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

S-3 Persons to whom these Regulations apply

Persons to whom these Regulations apply

3. These Regulations apply to any person who, on or after 1st October 2010, is entitled to an existing award18.

2 CONVERSION DECISIONS

PART 2

CONVERSION DECISIONS

S-4 The notice commencing the conversion phase

The notice commencing the conversion phase

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

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

(3) The notice must inform the notified person—

(a)

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

(b)

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

(c)

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

(d)

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

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

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

(a)

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

(b)

(b) at any time when payment of the existing award to the person is subject to adjustment under regulation 4 of the Social Security (Transitional Payments) Regulations 200919(adjustment of subsequent payments following an adjusting payment of benefit).

(6) Where a person is entitled to—

(a)

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

(b)

(b) an existing award of income support,

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

S-5 Deciding whether an existing award qualifies for conversion

Deciding whether an existing award qualifies for conversion

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

(2) A conversion decision is—

(a)

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

(b)

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

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

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

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

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

(a)

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

(b)

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

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

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

(a)

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

(b)

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

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

S-6 Application of certain enactments for purpose of making conversion decisions

Application of certain enactments for purpose of making conversion decisions

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

(a)

...

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