Commentary on Sections Schedule 7: Jobseeker’s allowance in interim period: consequential amendments Section 51: Period of entitlement to contributory allowance
268.Section 51(1) inserts a new section 1A into WRA 2007. This provision limits an award of contributory ESA to a maximum period of 365 days.
269.New subsection (1) of new section 1A provides that a period of entitlement to contributory ESA shall not exceed the relevant maximum number of days, even if the period of limited capability for work exceeds this period. The “relevant maximum number of days” is defined (in subsection (2)) as being 365 days or a greater number of days if the Secretary of State so specifies by order.
270.Subsection (3) of new section 1A provides that where an award has ended due to new subsection (1), a person may begin a new period of entitlement to contributory ESA if they satisfy all of the national insurance contribution conditions in Part 1 of Schedule 1 to WRA 2007, and the two tax years for which the claimant satisfies these conditions (to give rise to this new entitlement) include at least one tax year which is later than the second of the two tax years which gave rise to the previous entitlement.
271.Subsection (4) of new section 1A provides that where a person is entitled to a contributory allowance by virtue of the third condition set out in Part 1 of Schedule 1 (ESA on the grounds of youth) the period of entitlement to contributory ESA shall not exceed 365 days. As with new subsection (2) of new section 1A, this number of days of entitlement may be increased by the Secretary of State to a greater number, by order.
272.New subsection (5) restricts the application of new subsections (1) and (4) in the case of claimants whose capability for work-related activity is most severely affected by their health conditions. It does this by specifying days which do not count towards the 365 day limit.
273.Subsection (5)(a) excludes days in which the person is a member of the Support Group. Subsection (5)(b) deals with the situation where a claimant successfully appeals a decision arising from their initial work capability assessment to place them in the work related activity group. In this case the days in respect of which the claimant was not in the support group, but is entitled to the support component as a result of the appeal, are excluded from the days counting towards the time limit. Subsection (5)(c) deals with the situation where, immediately following the assessment phase, the claimant is placed in the support group, or is entitled to the support component as a result of an appeal as mentioned above. In this case the days in the assessment phase are excluded from the time limit.
274.New subsection (6) provides that claimants who are already receiving contributory ESA (including those entitled on the grounds of youth) when the time limit is introduced will have the period that they have already spent on the benefit counted towards their 365 days of entitlement. For example, if a person had been entitled for six months before the introduction of the time limit then their entitlement would end after another six months.
275.Subsections (2) and (3) of section 51 amend sections 25 and 26 of WRA 2007 respectively, so as to provide that the order-making power mentioned above is exercisable by statutory instrument which will be subject to the negative resolution procedure.
276.Subsection (4) of the section amends Schedule 4 to WRA 2007 so as to allow regulations to modify the application of new section 1A when applied to ESA awards made to people previously entitled to an existing award of incapacity benefit or severe disablement allowance under transitional provisions in the WRA 2007. This regulation making power could be used, for example, to ensure that the 365 day time limit created by section 1A would also apply to those people who are transferred from incapacity benefit or severe disablement allowance to contributory ESA, including dealing with the point at which it would start.