The Employment and Support Allowance Regulations 2008

JurisdictionUK Non-devolved
CitationSI 2008/794

2008 No. 794

Social Security

The Employment and Support Allowance Regulations 2008

Made 25th March 2008

Laid before Parliament 27th March 2008

Coming into force in accordance with regulation 1

The Secretary of State for Work and Pensions, in exercise of the powers conferred by sections 2(1)(a) and (c), (4)(a) and (c), 3(1)(c), (2)(b) and (d) and (3)1, 4(2)(a), (3), (6)(a) and (c), 5(2) and (3), 8(1) to (3), (4)(a) and (b), (5) and (6), 9(1) to (3) and (4)(a) and (b), 11(1), (2)(a) to (g), (3) to (5), (6)(a) and (7)(c), 12(1), (2)(a) to (h), (3) to (7), 14(1) and (2)(a) and (b), 16(2)(a) and (4), 17, 18(1), (2) and (4), 20(2) to (7), 222, 23(1) and (3), 24(1)3, (2)(b) and (3), 25(1) to (5) and 26(2) of, and paragraphs 1(4), 3(2), 4(1)(a) and (c), (3) and (4) and 6(1)(b), (2) to (5)4, (7) and (8) of Schedule 1 to, and paragraphs 1 to 7, 8(1), 9, 10, 12 and 14 of Schedule 2 to, the Welfare Reform Act 20075, section 5(1) of the Social Security Administration Act 19926and section 21(1)(a) of the Social Security Act 19987makes the following Regulations, which are made by virtue of, or consequential on, the provisions of the Welfare Reform Act 2007 and which are made before the end of a period of 6 months beginning with the coming into force of those provisions:

1 GENERAL

PART 1

GENERAL

S-1 Citation and commencement

Citation and commencement

1. These Regulations may be cited as the Employment and Support Allowance Regulations 2008 and shall come into force—

(a) subject to paragraphs (b) and (c), on 27th October 2008;

(b) in relation to regulation 128(6)(a) and paragraph 15(2) of Schedule 6, so far as it applies to a maintenance calculation, in relation to a particular case, on the day on which paragraph 11(20)(d) of Schedule 3 to the 2000 Act comes into force for the purposes of that type of case;

(c) in relation to regulation 82 and paragraph 4 of Schedule 8, so far as it applies to additional statutory paternity pay, on the day on which regulations made under or by virtue of sections 171ZEA to 171ZEE of the Contributions and Benefits Act8come into force.

S-2 Interpretation

Interpretation

2.—(1) In these Regulations—

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

the Act” means the Welfare Reform Act 20079;

“action plan” has the meaning given by regulation 58;

“adoption leave” means a period of absence from work on ordinary or additional adoption leave under section 75A or 75B of the Employment Rights Act 199610;

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

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

(b) the contract is entered into in the United Kingdom with a view to its performance (in whole or in part) while the aircraft is in flight,

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

“Armed Forces and Reserve Forces Compensation Scheme” means the scheme established under section 1(2) of the Armed Forces (Pensions and Compensation) Act 200411;

“attendance allowance” means—

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

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

(c) a payment under regulations made under section 111 of, and paragraph 7(2)(b) of Schedule 8 to, that Act;

(d) an increase in allowance which is payable in respect of constant attendance under section 111 of, and paragraph 4 of Schedule 8 to, that Act;

(e) a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 198312or any analogous payment;

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

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

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

“board and lodging” means—

(a) accommodation provided to a person or, if the person is a member of a family, to that person or any other member of that person’s family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of that person’s family) and are consumed in that accommodation or associated premises; or

(b) accommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,

except accommodation provided by a close relative of the person or any other member of the person’s family, or other than on a commercial basis;

“care home” in England and Wales has the meaning assigned to it by section 3 of the Care Standards Act 200013, and in Scotland means a care home service within the meaning assigned to it by section 2(3) of the Regulation of Care (Scotland) Act 200114;

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

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

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

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or if any of the preceding persons is one member of a couple, the other member of that couple;

“college of further education” means a college of further education within the meaning of Part 1 of the Further and Higher Education (Scotland) Act 199215;

“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance Fund or 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 Act16;

“co-ownership scheme” means a scheme under which a dwelling is let by a housing association and the tenant, or the tenant’s personal representative, will, under the terms of the tenancy agreement or of the agreement under which the tenant became a member of the association, be entitled, on that tenant ceasing to be a member and subject to any condition stated in either agreement, to a sum calculated by reference directly or indirectly to the value of the dwelling and “co-ownership agreement” will be construed accordingly;

“councillor” means—

(a) in relation to England and Wales, a member of a London borough council, a county council, a district council, a parish or community council, the Common Council of the City of London or the Council of the Isles of Scilly; and

(b) in relation to Scotland, a member of a council constituted under section 2 of the Local Government etc. (Scotland) Act 199417;

“councillor’s allowance” means—

(a) in England or Wales, an allowance under or by virtue of—

(i) section 173 or 177 of the Local Government Act 197218; or

(ii) a scheme made by virtue of section 18 of the Local Government and Housing Act 198919,

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

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

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

(ii) sections 11 and 16 of the Local Governance (Scotland) Act 200420;

“couple” means —

(a) a man and woman who are married to each other and are members of the same household;

(b) a man and woman who are not married to each other but are living together as husband and wife;

(c) two people of the same sex who are civil partners of each other and are members of the same household; or

(d) two people of the same sex who are not civil partners of each other but are living together as if they were civil partners,

and for the purposes of paragraph (d), two people of the same sex are to be regarded as living together as if they were civil partners if, but only if, they would be regarded as living together as husband and wife were they instead two people of the opposite sex;

“Crown tenant” means a person who occupies a dwelling under a tenancy or licence where the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department, except (in the case of an interest belonging to Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners;

“dependent child” means any child or qualifying young person who is treated as the responsibility of the claimant or the claimant’s partner, where that child or young person is a member of the claimant’s household;

“descriptor” means, in relation to an activity specified in column (1) of Schedule 2, a descriptor in column (2) of that Schedule which describes a person’s ability to perform that activity;

“disability living allowance” means a disability living allowance under section 71 of the Contributions and Benefits Act;

“doctor” means a registered medical practitioner, or in the case of a medical practitioner practising outside the United Kingdom of whom the Secretary of State may request a medical opinion, a person registered...

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