PART 1General

Citation and commencement

1.  These Regulations may be cited as the Employment and Support Allowance (Work-Related Activity) Regulations 2011 and shall come into force on 1st June 2011.

Interpretation

2.—(1) In these Regulations—

“the Act” means the Welfare Reform Act 2007;

“the ESA Regulations” means the Employment and Support Allowance Regulations 2008(7);

“action plan” means an action plan issued in accordance with regulation 5;

“carer’s allowance”, “child”, “lone parent”, “medical treatment” and “working day” have the meaning given in regulation 2(1) of the ESA Regulations.

(2) For the purpose of these Regulations where a written notice is given by sending it by post it is taken to have been received on the second working day after posting.

PART 2Work-related activity

Requirement to undertake work-related activity

3.—(1) The Secretary of State may require a person who satisfies the requirements in paragraph (2) to undertake work-related activity(8) as a condition of continuing to be entitled to the full amount of employment and support allowance payable to that person.

(2) The requirements referred to in paragraph (1) are that the person—

(a)is required to take part in, or has taken part in, one or more work-focused interviews pursuant to regulation 54 of the ESA Regulations;

(b)is not a lone parent who is responsible for and a member of the same household as a child under the age of 5;

(c)is not entitled to a carer’s allowance; and

(d)is not entitled to a carer premium under paragraph 8 of Schedule 4 to the ESA Regulations.

(3) A requirement to undertake work-related activity ceases to have effect if the person becomes a member of the support group(9).

(4) A requirement imposed under paragraph (1)—

(a)must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances; and

(b)may not require the person to—

(i)apply for a job or undertake work, whether as an employee or otherwise; or

(ii)undergo medical treatment.

(5) A person who is a lone parent and in any week is responsible for and a member of the same household as a child under the age of 13, may only be required to undertake work-related activity under paragraph (1) during the child’s normal school hours.

Directions about work-related activity

4.—(1) The circumstances in paragraph (2) are the circumstances prescribed for the purposes of section 15(1)(a) of the Act.

(2) The circumstances referred to in paragraph (1) are that—

(a)the person has been identified by the Secretary of State as having a barrier to work and in the view of the Secretary of State has refused to address that barrier; and

(b)the Secretary of State considers that the activity specified in the direction given under section 15(1) of the Act is a prerequisite to the person’s ability to obtain or remain in work.

Notification of work-related activity and action plans

5.—(1) The Secretary of State must notify a person of a requirement to undertake work-related activity by including the requirement in a written action plan given to the person.

(2) The action plan must specify—

(a)the work-related activity which the person is required to undertake; and

(b)any other information that the Secretary of State considers appropriate.

Requirement to undertake work-related activity at a particular time not to apply

6.  The Secretary of State may determine that a requirement as to the time at or by which work-related activity is to be undertaken is not to apply, or is to be treated as not having applied, if in the view of the Secretary of State it would be, or would have been, unreasonable to require the person to undertake the activity at or by that time.

Reconsideration of action plans

7.—(1) A person may request reconsideration of an action plan.

(2) On receipt of a request the Secretary of State must reconsider the action plan.

(3) A decision of the Secretary of State following a request must be in writing and given to the person.

Failure to undertake work-related activity

8.—(1) A person who is required to undertake work-related activity but fails to do so must show good cause for the failure within 5 working days of the date on which the Secretary of State gives notice of the failure.

(2) The Secretary of State must determine whether a person who is required to undertake work-related activity has failed to do so and, if so, whether the person has shown good cause for the failure.

(3) In deciding whether a person has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case including in particular the person’s physical or mental health or condition.

PART 3Contracting Out

Contracting out

9.—(1) Any function of the Secretary of State specified in paragraph (2) may be exercised by, or by employees of, such person (if any) as may be authorised by the Secretary of State.

(2) The functions are—

(a)any function under—

(i)regulation 3 (requirement to undertake work-related activity);

(ii)regulation 5 (notification of work-related activity and action plans);

(iii)regulation 6 (requirement to undertake work-related activity not to apply);

(iv)regulation 7 (reconsideration of action plans);

(b)any function under regulation 64(1)(a) and (c) and (1A) of the ESA Regulations (decisions in relation to cessation of reduction).

PART 4Amendments to the ESA Regulations

Amendment to regulation 2(1) of the ESA Regulations (interpretation)

10.  In regulation 2(1) of the ESA Regulations, omit the definition of “action plan”.

Revocation of regulations relating to work-focused health-related assessments

11.  The following regulations of the ESA Regulations are revoked—

(a)regulation 47 (requirement to take part in a work-focused health-related assessment);

(b)regulation 48 (work-focused health-related assessment);

(c)regulation 49 (notification of assessment);

(d)regulation 51 (taking part in a work-focused health-related assessment);

(e)regulation 52 (deferral of a requirement to take part in a work-focused health-related assessment); and

(f)regulation 53 (failure to take part in a work-focused health-related assessment).

Amendment to regulation 56 of the ESA Regulations (notification of interview)

12.  In regulation 56(1) of the ESA Regulations—

(a)for “attend” substitute “take part in”; and

(b)after “time and” insert “if required to attend in person, the”.

Amendment to regulation 57 of the ESA Regulations (taking part in a work-focused interview)

13.—(1) Regulation 57 of the ESA Regulations is amended as follows.

(2) In paragraph (1)(a), at the beginning insert “ if required to attend in person,”.

(3) After paragraph (1)(a) insert a new sub-paragraph—

“(aa)if not required to attend in person, is available and responds at the date and time notified in accordance with regulation 56 to any contact made at that time for the purpose of carrying out the interview;”.

(4) Omit paragraph (1)(d).

Revocation of regulation 58 of the ESA Regulations (action plans)

14.  Regulation 58 of the ESA Regulations is revoked.

Substitution of regulation 61 of the ESA Regulations (failure to take part in a work-focused interview)

15.  For regulation 61(3) of the ESA Regulations (failure to take part in a work-focused interview), substitute—

“(3) In deciding whether a person has shown good cause for the failure, the Secretary of State must take account of all the circumstances of the case including in particular the person’s physical or mental health or condition.”.

Amendment to regulation 62 of the ESA Regulations (contracting out certain functions relating to work-focused interviews)

16.  In paragraph (2) of regulation 62 of the ESA Regulations omit sub-paragraph (d).

Amendment to regulation 63 of the ESA Regulations (reduction of employment and support allowance)

17.—(1) Regulation 63 of the ESA Regulations is amended as follows.

(2) For paragraph (1) substitute—

“(1) Where the Secretary of State has determined—

(a)that a claimant who was required to take part in a work-focused interview has failed to do so and has failed to show good cause for that failure in accordance with regulation 61; or

(b)that a claimant who was required to undertake work-related activity has failed to do so and has failed to show good cause for that failure in accordance with regulation 8 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011,

(“a failure determination”) the amount of the employment and support allowance payable to the claimant is to be reduced in accordance with this regulation.”.

(3) In paragraph (3)(b)(i) for “a work-focused health-related assessment” substitute “work-related activity”.

Amendment to regulation 64 of the ESA Regulations (cessation of reduction)

18.—(1) Regulation 64 of the ESA Regulations is amended as follows.

(2) For paragraph (1) substitute—

“(1) Any reduction imposed as a result of a failure determination which resulted from a failure to undertake work-related activity in accordance with the Employment and Support Allowance (Work-Related Activity) Regulations 2011 ceases to have effect if—

(a)the claimant complies with a requirement to undertake the work-related activity specified in the action plan or, where permitted by the Secretary of State, an alternative activity;

(b)the claimant subsequently ceases to be subject to a requirement to undertake work-related activity; or

(c)the Secretary of State decides it is no longer appropriate to require the person to undertake work-related activity at that time.”.

(3) After paragraph (1) insert—

“(1A) The Secretary of State must notify the person in writing—

(a)where an alternative activity is permitted under paragraph (1)(a), by inclusion of that activity in the action plan; and

(b)of any decision under paragraph (1)(c).”.

(4) In paragraph (2)(a) for “attend” substitute “take part in”.

Amendment to Schedule 8 to the ESA Regulations

19.  In Schedule 8 to the ESA Regulations (sums to be disregarded in the calculation of income other than earnings) after paragraph 15, insert—

“15A.  Any payment made to the claimant in respect of any travel or other expenses incurred, or to be incurred, in complying with a requirement to undertake work-related activity.”.

Amendment of Schedule 9 to the ESA Regulations

20.  In Schedule 9 to the ESA Regulations (capital to be disregarded) after paragraph 32, insert—

“32A.  Any payment made to the claimant in respect of any travel or other expenses incurred, or to be incurred, in complying with a requirement to undertake work-related activity but only for 52 weeks beginning with the date of receipt of the payment.”.

PART 5Amendment to the Social Security and Child Support (Decisions and Appeals) Regulations 1999

Amendment to the Social Security and Child Support (Decisions and Appeals) Regulations 1999

21.  In regulation 1(3) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999(10) (interpretation), for the definition of “failure determination”(11), substitute—

““failure determination” means a determination by the Secretary of State under regulation 61(2) of the Employment and Support Allowance Regulations or regulation 8(2) of the Employment and Support Allowance (Work-Related Activity) Regulations 2011 that a claimant has failed to satisfy a requirement of regulation 54 of the Employment and Support Allowance Regulations (requirement to take part in a work-focused interview) or regulation 3 of the Employment and Support Allowance (Work-Related Activity) Regulations 2011 (requirement to undertake work-related activity).”.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations are made under the provisions in Part 1 of the Welfare Reform Act 2007 (“the Act”).

Section 13 of the Act introduced work-related activity requirements for claimants of employment and support allowance (ESA) who are not in the “support group” (defined in section 24(4) as persons in respect of whom it is determined that they have, or are to be treated as having, limited capability for work-related activity).

Regulation 3 sets out the circumstances in which the Secretary of State may require such a person to undertake work-related activity and who such a requirement may be applied to. It also makes clear that a requirement must be reasonable in the view of the Secretary of State, having regard to the person’s circumstances and may not require the person to apply for a job, undertake work or undergo medical treatment as part of the work-related activity requirement. It also provides that a lone parent with a child under the age of 13 may only be required to undertake work related activity during normal school hours.

Regulation 4 sets out the circumstances in which the Secretary of State may exercise the power to give a direction under section 15 of the Act.

Regulation 5 sets out the way in which the Secretary of State must notify a person of a requirement to undertake work-related activity, by including the requirement in a written action plan.

Regulation 6 provides that the requirement to undertake work-related activity at or by a particular time may be adjusted in certain circumstances.

Regulation 7 sets out a right to request reconsideration of the action plan. On receipt of the request the action plan must be reconsidered and a decision notified to the person.

Regulation 8 sets out what happens if a person fails to undertake work-related activity and provides an opportunity to show good cause for the failure. If good cause is not shown, a sanction may be given under regulation 63 of the Employment and Support Allowance Regulations 2008 (S.I. 2008/794) “the ESA Regulations” as amended by regulation 17 of these Regulations.

Regulation 9 makes provision for contracting out the work-related activity functions (with the exception of functions relating to the consideration of good cause and the imposition of sanctions).

Regulations 10-21 make certain consequential and miscellaneous amendments to the ESA Regulations:

Regulations 10, 13(4), 14 and 16 revoke regulations regarding action plans relating to work focused interviews. Action plans will only be required if work related activity is imposed under these Regulations.

Regulation 11 revokes provisions relating to work-focused health related assessments which are no longer required of ESA claimants.

Regulations 12 and 13 allow for work-focused interviews to be carried out other than in person and regulation 15 substitutes new good cause provisions for failures to take part in a work-focused interview, to align with regulations in relation to failures to undertake work-related activity.

Regulations 17 and 18 apply the existing ESA sanctions regime for failure to take part in a work-focused interview to a failure to undertake work-related activity and provide for when a sanction will cease.

Regulations 19 and 20 provide that travel and other expenses paid to persons in connection with their undertaking of work-related activity are disregarded as income and capital for the purposes of income related ESA.

Regulation 21 makes consequential amendments to the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (S.I. 1999/991).

A full impact assessment has not been produced for this instrument as it has no impact on the voluntary or private sectors.