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Family Law

The leading authority on all aspects of family law

02 MAY 2013

The Welfare Reform Act 2012 (Commencement No. 9 and Transitional and Transitory Provisions and Commencement No. 8 and Savings and Transitional Provisions (Amendment)) Order 2013

This Order commences provisions of the Welfare Reform Act 2012 (c.5) ("the Act") that relate to universal credit (UC) and the abolition of income-related employment and support allowance and of income-based jobseeker's allowance, by reference to the cases set out in articles 3 and 4. It also makes transitional provision with respect to that abolition, and other provision as referred to below.

An award of an employment and support allowance (ESA) under Part 1 of the Welfare Reform Act 2007 (c.5) in a case where income-related employment and support allowance has been abolished is referred to as a "new style ESA award" and an award of a jobseeker's allowance (JSA) under the Jobseekers Act 1995 (c. 18) in a case where income-based jobseeker's allowance has been abolished is referred to as a "new style JSA award".

An award of ESA under Part 1 of the Welfare Reform Act 2007 in a case where income-related employment and support allowance has not been abolished is referred to as an "old style ESA award" and an award of JSA under the Jobseekers Act 1995 in a case where income-based jobseeker's allowance has not been abolished is referred to as an "old style JSA award".

Article 3(1) brings into force on 29th April 2013 various provisions relating to UC including certain supplementary and consequential provisions set out in Schedule 2 to the Act.

Article 3(2) brings into force provisions relating to UC in Part 1 of the Act, as set out in Schedule 2, where one of six different cases referred to in article 3(3), relating to claims for UC and any resulting award and to awards of UC without a claim, applies.

The case in article 3(3)(a) relates to the making of a claim for UC in respect of a period that begins on or after 29th April 2013 where a person resides in a "relevant district" at the time that the claim is made (the "relevant districts" are described in Schedule 1). Other conditions ("Pathfinder Group conditions") for making a claim for UC are set out in the Universal Credit (Transitional Provisions) Regulations 2013 (S.I. 2013/386).

The other cases referred to in article 3(3) relate to situations where-

a) a person claims UC and provides incorrect information as to their residence in a relevant district but this is only discovered once payments of UC have been made;

b) a single person becomes a member of a couple where the other member is entitled to UC;

c) a couple cease to be a couple and the member of the couple who is not exempt from making a claim for UC, makes a claim within a period of 1 month;

d) a person is awarded UC as a result of changes in their income within 6 months of their income being such that they were not entitled to UC;

e) a couple cease to be a couple and an award of UC is made without a claim to the member of the couple who is exempt from making a claim or an award of UC is made without a claim to a couple where the members of the couple were previously entitled to UC as single claimants. In addition, where an award of UC is made without a claim to a member of a couple where the other member of the couple has died.

Article 4(1) brings into force provisions relating to the abolition of income-related employment and support allowance and of income-based jobseeker's allowance ("the amending provisions") including the repeal of provisions relating to the abolished allowances as set out in Schedule 3, where one of six different cases applies.

Under article 4(2)(a), the amending provisions come into force in relation to a claim for UC, ESA or JSA, and any award that is made in respect of the claim, where a person claims UC, ESA or JSA in respect of a period that begins on or after 29th April 2013 and, at the time that the claim is made, resides in a relevant district and meets the Pathfinder Group conditions.

Under article 4(2)(b), the amending provisions come into force in relation to a claim for UC and any award that is made in respect of the claim where a person claims UC in respect of a period that begins on or after 29th April 2013 and provides incorrect information as to their residence in a relevant district, or as to their meeting the Pathfinder Group conditions, but this is only discovered once payments of UC have been made.

The other cases in article 4(2) are the same as the cases in (b) to (e) above that relate to UC. Article 4(4) provides that a reference in paragraph (1) to an award of UC includes a reference to any claim for ESA or JSA, and any award that is made in respect of that claim, where the claim is made within the period of the UC award by a person to whom the award is made and with respect to a period that commences on or after the first day of entitlement to UC. It also includes a reference to any notice under the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit)(Existing Awards)(No.2) Regulations 2010 (S.I. 2010/1907) ("2010 Transitional Regulations") that is issued to such a person, relating to the conversion of existing awards of incapacity benefit (IB) and severe disablement allowance (SDA) to ESA, and to any award of ESA that is made as a result of a conversion decision, where the notice is issued within the period of the UC award.

Article 5 contains provisions that apply in connection with article 4.

Article 6 makes transitional provision with respect to the case where-

a) a person has a new style ESA award or new style JSA award;

b) any award of UC has come to an end;

c) the person applies for supersession of the decision to make the award or makes a claim for UC, any claim for UC does not fall within the cases in article 4(2)(b) to (d), and the person does not reside in a relevant district or does not meet the Pathfinder Group conditions at the time that the application is received or the claim is made.

Subject to certain other conditions being satisfied, the award is treated as though the amending provisions had not come into force, such that the person is able to claim income-related ESA or income-based JSA once again.

Article 7 provides for the appointed day and transitional provisions for the provisions in the Act that relate to claimant responsibilities in relation to a new style ESA award or a new style JSA award; these provisions come into force in relation to any case with respect to which the amending provisions come into force.

Article 8 brings into force provisions of Schedule 11 to the Act that concern consideration of revision before appeal.

Article 9 and Schedule 4 provide for transitional provisions whereby, in relation to cases with respect to which the amending provisions have come into force, the 2010 Transitional Regulations are to be read as if the amendments set out in Schedule 4 were made; the amendments substitute references to provisions that apply to new style ESA awards including the Employment and Support Allowance Regulations 2013 (S.I. 2013/379).

Articles 10 and 11 provide for transitional provisions with respect to assessments of limited capability for work or for work and work-related activity where a person has a new style ESA award and previously had an old style ESA award, or vice versa.

Articles 12 and 13 provide for transitional provisions with respect to the continuity of jobseeking periods where a person has a new style JSA award and previously had an old style JSA award, or vice versa.

Articles 14 to 16 provide for transitional provisions in relation to sanctions where a person has a new style ESA award and previously had an old style ESA award and was subject to sanctions.

Articles 17 to 19 make similar provision for JSA.

Article 20 provides that where a person has a new style ESA award or new style JSA award, is subject to sanctions and subsequently becomes entitled to an old style ESA award, old style JSA award or income support, the sanctions cease to have effect.

Article 21 provides for a transitory provision with respect to appeals where a person is sent a notice relating to a new style ESA award or a new style JSA award.

Article 22 contains a transitional provision providing that, in relation to a case with respect to which the amending provisions have come into force under article 4(1), references in certain Acts to a contributory employment or support allowance or to a contribution-based jobseeker's allowance are to be construed as if they included a reference to a new style ESA award or to a new style JSA award respectively.

Article 23 amends article 5 of the Welfare Reform Act 2012 (Commencement No. 8 and Savings and Transitional Provisions) Order 2013 (S.I. 2013/358) with respect to overpayments of benefit in order to make it clear that the new rules applying to overpayments of an employment and support allowance and of a jobseeker's allowance apply only to overpayments of a new style ESA award and a new style JSA award respectively. The amendments also make it clear that the old rules relating to overpayments of those benefits will continue to apply to overpayments of an old style ESA award and an old style JSA award respectively.

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