Legislation
Employment and Support Allowance

Primary legislation:

The Welfare Reform Act 2007: Part 1
www.opsi.gov.uk/acts/acts2007/ukpga_20070005_en_2#pt1-pb1-l1g1

Secondary legislation:

The Employment and Support Allowance Regulations 2008
www.opsi.gov.uk/si/si2008/uksi_20080794_en_1
These regulations come into force mainly on 27 October. They provide the main set of detailed rules on ESA and provide for its introduction on 27 October. They add detail to the main rules in the Welfare Reform Act 2007. In particular, they provide for additional rules on the assessment phase, the contribution conditions for contributory ESA, education and entitlement to income-related ESA, rules on work and entitlement, conditionality (ie, work-focused health-related assessments and work-focused interviews), amounts of ESA (including applicable amounts for income-related ESA and the amounts of the work-related activity and support components), income and capital rules, rules relating to liable relatives, child support, students, work or training beneficiaries, temporary absence, membership of household, disqualification and urgent payments. Also, the rules include the details of the work capability assessment (including the new points and descriptors) and the assessment for limited capability for work-related activity.

The Employment and Support Allowance (Transitional Provisions) Regulations 2008
http://www.opsi.gov.uk/si/si2008/uksi_20080795_en_1
These regulations come into force mainly on 27 July, but their main provision is that from the introduction of ESA on 27 October no new claim can be made for incapacity benefit, severe disablement allowance or income support for ‘disability’ (that includes incapacity for work as well as some other categories, including disabled workers, disabled students and registered blind). Such claims will be treated as claims for ESA. But a person previously entitled to one (or more) of those benefits can in specified circumstances make a repeat claim for that benefit. Claims made for ESA before it is introduced may be treated as a claim for incapacity benefit or income support on grounds of ‘disability’.

The Employment and Support Allowance (Consequential Provisions) Regulations 2008, SI No.1082 http://www.opsi.gov.uk/si/si2008/uksi_20081082_en_1
These regulations come into force on 27 October. They make various amendments to the housing benefit (HB) and council tax benefit (CTB) rules in the light of the introduction of employment and support allowance (ESA) on that date. Many of the amendments are to extend current rules so as to include references to ESA, and to align the structure of HB/CTB with that of ESA. Among the most important provisions are:

• Those entitled to income-related ESA will be entitled to maximum HB/CTB;
• When a claimant becomes entitled to the work-related activity component or the support component of ESA, that component will be added to the applicable amount for HB/CTB;
• As in ESA, someone entitled to the support component will automatically be entitled to the enhanced disability premium;
• There will be no disability premium for ESA claimants;
• ESA claimants will access the £20 earnings disregard, additional £16.05 earnings disregard and childcare charge disregard via entitlement to the additional ESA component rather than the disability premium.
  
  

The Employment and Support Allowance (Consequential Provisions) (No.2) Regulations 2008, SI No. 1554 http://www.opsi.gov.uk/si/si2008/uksi_20081554_en_1

These regulations come into force mainly on 27 October. They make consequential amendments to a number of benefit rules, including income support, jobseeker’s allowance and pension credit, claims and payments, decisions and appeals, national insurance credits and various other miscellaneous rules including the social fund and child support.

The most substantive amendments are to the claims and payments and decisions and appeals rules. Amongst the most important of those are: a claim for employment and support allowance (ESA) may be made either by telephone or in writing on a claim form; the claim may be backdated for up to three months; ESA will be paid fortnightly in arrears; deductions may be made from ESA and paid to third parties, including for mortgage interest direct and child support maintenance (from income-related ESA); there is no appeal against an ESA decision regarding which partner should make a claim, whether a maternity allowance claim can be treated as an ESA claim or the time and manner of payment of ESA.

Amongst other amendments are: the social fund rules on cold weather payments, winter fuel payments and maternity and funeral expenses include income-related ESA as a qualifying benefit; there is an entitlement to a national insurance credit for each week of entitlement to contributory ESA or of limited capability for work; contributory ESA is included as a contributory benefit for the purpose of the overlapping benefit rules; income-related ESA is included on the list of means-tested benefits where in certain (specified) circumstances immigration status will not result in exclusion from entitlement; where an income support or income-based jobseeker’s allowance claimant’s partner has their contributory ESA reduced because of a sanction, the full amount of the contributory ESA will still be taken into account in calculating the claimant’s benefit.

The Employment and Support Allowance (Consequential Provisions) (No. 3) Regulations 2008, SI 2008 No.1879 http://www.opsi.gov.uk/si/si2008/uksi_20081879_en_1

These regulations come into force on 27 October. They make consequential amendments in the light of the introduction of employment and support allowance (ESA) to various schemes, including in particular tax credits.

In tax credits, the following changes are made:

• the working tax credit rules are amended so that ESA claimants (ie, both contributory and income-related) can be treated as being engaged in full-time work for the first 28 weeks of the claim, in a way similar to claimants of income support (IS) and incapacity benefit (IB);
• the rules on the disability element for working tax credit are amended so that the rules for claimants of ESA and their partners are similar to those for incapacity benefit and severe disablement allowance, including regarding the ‘fast track’ route and (regarding contributory ESA only) the ‘training for work’ route;
• the rule on the 50 plus element is amended so as to include ESA in the list of qualifying benefits;
• the childcare element rules are amended so as to include receipt of contributory ESA for 28 weeks or more as a route to being regarded as ‘incapacitated’;
• the child tax credit rules are amended so that a young person in receipt of income-related ESA does not count as a child, and a child tax credit claimant cannot be treated as responsible for a child who is in receipt of contributory ESA in their own right;
• regarding calculations, entitlement to income-related ESA leads to maximum entitlement to tax credits in the same way that IS, income-based JSA and pension credit does (ie there is no income test).

Amongst other provisions, entitlement to income-related ESA provides entitlement to free school meals, and for women who have been pregnant for ten or more weeks to have access to the Healthy Start scheme. Also, in specified circumstances recipients of income-related ESA are entitled to free legal advice or assistance. In Wales, they are entitled to full payment of NHS travel costs and NHS charges (similar provision is made in England by SI 2008 No. 1697). Those claiming income-related ESA are excluded from the Asylum Support scheme. Child benefit is not payable in respect of a qualifying young person who receives either contributory or income-related ESA.

<< back to Employment and Support Allowance (ESA) page