type: legislation

jurisdiction: UK

text:
Citation and Commencement
1
1
These Regulations may be cited as the Education (Student Loans) (Repayment) (Amendment) Regulations 2010 and come into force on 6 April 2010.
2
Regulations 5, 6 and 7 apply only in relation to tax years commencing on or after 6 April 2010.
Amendment of the Education (Student Loans) (Repayment) Regulations 2009
2
The Education (Student Loans) (Repayment) Regulations 2009 are amended as follows.
3
In regulation 29 for paragraph (4)(h) substitute —
h
deducting the amount of any loss in respect of which relief is given under any of the following —
i
section 64 of the 2007 Act (trade loss relief against general income);
ii
section 83 of the 2007 Act (carry-forward trade loss relief);
iii
section 118 of the 2007 Act (carry-forward property loss relief);
iv
section 120 of the 2007 Act (property loss relief against general income);
v
section 128 of the 2007 Act (in respect of losses in an employment); and.
.
4
In regulation 46 for “subject to paragraphs (2) and (3)” substitute “subject to paragraph (2)”.
5
In regulation 62(4) after “5 (Appeals and Other proceedings)” insert “, 5A (Payment of Tax)”.
6
In regulation 68 for paragraph (3) substitute —
3
Schedule 56 to the Finance Act 2009 (penalty for failure to pay tax) shall apply in relation to the late payment from an employer to HMRC of student loan repayments deducted from an employees’ earnings as if —
a
in relation to all regulations in this Part other than regulation 62 payment from an employer to HMRC were a payment of tax falling within item 2 of the table in paragraph 1 of that Schedule;
b
in relation to regulation 62 payments from an employer to HMRC were a payment of tax falling within items 17, 23 or 24 of the table in paragraph 1 of that Schedule;
c
references to the PAYE Regulations in item 2 of the table in paragraph 1 of that Schedule were references to this Part.
.
7
For regulation 70 substitute —
To the extent that the provisions of the PAYE Regulations apply by virtue of regulation 42 for the purposes of these Regulations, the PAYE Regulations will apply as if in regulation 210 (penalties and appeals) an employer is not liable to a penalty if the employer has been liable to a penalty for failing to comply with regulation 205 of those Regulations or regulation 90N of the Contributions Regulations in relation to the same tax year.
.
8
In regulation 80 —
a
in paragraph (2)(a) —
i
for “section 307 or 310” substitute “section 307, 310 or 310A ”;
ii
after “before or after the commencement of the bankruptcy;” omit “and”.
b
After paragraph (2)(b) insert —
c
any sum payable to an eligible student by way of student loan which the eligible student receives or is entitled to receive before or after the approval of that person’s individual voluntary arrangement under Part 8 of the Insolvency Act 1986 will not be treated as part of any arrangement approved under section 258 or 263D of that Act, whether the entitlement arises before or after the approval of the arrangement; and
d
any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of student loan will not be included in that person’s individual voluntary arrangement when that person receives or is entitled to receive that sum —
i
in the case of an individual voluntary arrangement approved before 6 April 2010, after the approval of that arrangement; or
ii
in the case of an individual voluntary arrangement approved on or after 6 April 2010, before or after the approval of that arrangement.
.
c
in paragraph (3)(a) —
i
for “Article 280 or 283”, substitute “Article 280, 283 or 283A ”;
ii
after “before or after the commencement of the bankruptcy;” omit “and”.
d
after paragraph (3)(b) insert —
c
any sum payable to an eligible student by way of a student loan which the eligible student receives or is entitled to receive before or after the approval of that person’s individual voluntary arrangement under Part 8 of the Insolvency (Northern Ireland) Order 1989 will not be treated as part of the individual voluntary arrangement approved under articles 232 or 237D of that Order, whether the entitlement arises before or after the approval of the arrangement; and
d
any debt or liability to which that person is or may become subject in respect of any sum payable to an eligible student by way of a student loan will not be included in that person’s individual voluntary arrangement when that person receives or is entitled to receive that sum —
i
in the case of an individual voluntary arrangement approved before 6 April 2010, after the approval of the arrangement; or
ii
in the case of an individual voluntary arrangement approved on or after 6 April 2010, before or after the approval of the arrangement.
.
David Lammy
Minister of State for Higher Education and Intellectual Property
Department for Business, Innovation and Skills
8th March 2010
Leighton Andrews
Minister for Children, Education, Lifelong Learning and Skills One of the Welsh Ministers
7th March 2010


text:
Citation and commencement
1
These Regulations may be cited as the Police Authority and Metropolitan Police Authority (Amendment) Regulations 2010 and shall come into force on 26th April 2010.
Amendment of the Police Authority Regulations
2
In regulation 43(5) of the Police Authority Regulations 2008 (consideration of applications by selection panel) for “four” substitute “two”.
Amendment of the Metropolitan Police Authority Regulations
3
In regulation 42(5) of the Metropolitan Police Authority Regulations 2008 (consideration of applications by selection panel) for “four” substitute “three”.
David Hanson
Minister of State
Home Office
29th March 2010


text:
Citation and commencement
1
1
This Order may be cited as the Secretary of State for Education Order 2010.
2
This Order comes into force on 18th August 2010.
Interpretation
2
In this Order “instrument” includes, in particular, Royal Charters, Royal Warrants, Orders in Council, Letters Patent, judgments, decrees, orders, rules, regulations, schemes, bye-laws, awards, licences, authorisations, consents, approvals, contracts and other agreements, memoranda and articles of association, certificates, deeds and other documents.
Incorporation of the Secretary of State for Education
3
1
The person who at the coming into force of this Order is the Secretary of State for Education and any successor to that person is by that name a corporation sole.
2
The corporate seal of the Secretary of State for Education —
a
is to be authenticated by the signature of a Secretary of State or a person authorised by a Secretary of State to act in that behalf, and
b
is to be officially and judicially noticed.
3
Every document purporting to be an instrument made or issued by the Secretary of State for Education and to be —
a
sealed with the corporate seal of that Secretary of State authenticated in the manner provided for by paragraph (2), or
b
signed or executed by a person authorised by a Secretary of State to act in that behalf,
is to be received in evidence and to be deemed to be so made or issued without further proof, unless the contrary is shown.
4
A certificate signed by the Secretary of State for Education that an instrument purporting to be made or issued by —
a
the Secretary of State for Education, or
b
the Secretary of State for Children, Schools and Families,
was so made or issued is conclusive evidence of that fact.
5
The Documentary Evidence Act 1868 applies in relation to the Secretary of State for Education —
a
as if references to regulations and orders included references to any document, and
b
as if the officers mentioned in column 2 of the Schedule to that Act included any officer authorised to act on behalf of the Secretary of State.
Transfer of functions and property etc from the Secretary of State for Children, Schools and Families to the Secretary of State for Education
4
1
The functions of the Secretary of State for Children, Schools and Families are transferred to the Secretary of State for Education.
2
There are transferred to the Secretary of State for Education all property, rights and liabilities to which the Secretary of State for Children, Schools and Families is entitled or subject at the coming into force of this Order.
Other supplemental provision relating to the Secretary of State for Education
5
1
For the purposes of this article a function is a relevant function so far as —
a
it is transferred by article 4(1), or
b
it is within paragraph (2).
2
A function is within this paragraph if —
a
immediately before 12th May 2010 it was entrusted to the Secretary of State for Children, Schools and Families, and
b
before the making of this Order it has been entrusted to the Secretary of State for Education.
3
Anything (including legal proceedings) which, at the coming into force of this Order, is in the process of being done by or in relation to the Secretary of State for Children, Schools and Families may, so far as it relates to a relevant function or anything transferred by article 4(2), be continued by or in relation to the Secretary of State for Education.
4
Anything done (or having effect as if done) by or in relation to the Secretary of State for Children, Schools and Families in connection with a relevant function or anything transferred by article 4(2) has effect, so far as necessary for continuing its effect after the coming into force of this Order, as if done by or in relation to the Secretary of State for Education.
5
Documents or forms printed for use in connection with a relevant function may be used in connection with that function even though they contain, or are to be read as containing, references to the Secretary of State for Children, Schools and Families; and for the purposes of the use of any such documents or forms after the coming into force of this Order, those references are to be read as references to the Secretary of State for Education.
6
Any enactment or instrument passed or made before the coming into force of this Order has effect, so far as necessary for the purposes of or in consequence of —
a
the transfer or entrusting to the Secretary of State for Education of any relevant function, or
b
the transfer of anything by article 4(2),
as if references to (and references which are to be read as references to) the Secretary of State for Children, Schools and Families were or included references to the Secretary of State for Education.
7
This Order does not affect the validity of anything done (or having effect as if done) by or in relation to the Secretary of State for Children, Schools and Families before the coming into force of this Order.
8
In paragraphs (3) to (7) references to the Secretary of State for Children, Schools and Families include references to the department or an officer of the Secretary of State for Children, Schools and Families; and references to the Secretary of State for Education are to be read accordingly.
Consequential amendments
6
The Schedule has effect.
Judith Simpson
Clerk of the Privy Council


text:
PART 1 GENERAL
Citation and commencement
1
1
These Regulations may be cited as the Train Driving Licences and Certificates Regulations 2010.
2
Subject to regulation 39 (transitional provisions), these Regulations come into force on 6th April 2010 .
Interpretation
2
In these Regulations —
“the 1974 Act ” means the Health and Safety at Work etc Act 1974 ;
“ the Agency ” means the European Railway Agency established by Regulation (EC) No 881/2004 of the European Parliament and of the Council establishing a European Railway Agency ;
“the Department for Regional Development” means the Department for Regional Development established by article 3(1) of the Departments (Northern Ireland) Order 1999 ;
“ the Directive ” means Directive 2007/59/ EC of the European Parliament and of the Council on the certification of train drivers operating locomotives and trains on the railway system in the Community ;
“employed” means engaged to do something whether under a contract of employment, or as an independent contractor or as a volunteer and related expressions must be construed accordingly;
“infrastructure manager” means the holder of a safety authorisation issued by —
the ORR in accordance with regulation 10 or 12 of ROGS ; or
the Intergovernmental Commission pursuant to the requirements of article 27 of the Regulation set out in the Schedule to the Channel Tunnel (Safety) Order 2007 ;
“Intergovernmental Commission” means the Commission established under article 10 of the Treaty of Canterbury of 12th February 1986 to supervise, in the name and on behalf of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic, all matters concerning the construction and operation of the Channel Tunnel;
“mainline railway” has the same meaning as in regulation 2(1) of ROGS but includes the “tunnel system” within the meaning of section 1(7) of the Channel Tunnel Act 1987 ;
“ORR” means the Office of Rail Regulation;
“railway undertaking” means the holder of —
a safety certificate issued by the ORR in accordance with regulation 7 or 9 of ROGS; or
a Part B certificate issued by the Intergovernmental Commission pursuant to the requirements of article 39(ii) of the Regulation set out in the Schedule to the Channel Tunnel (Safety) Order 2007;
“recognised doctor” means a registered medical practitioner whose name appears in a register of doctors that the ORR has published, or caused to be published, under regulation 23(1);
“recognised examiner” means a person whose name appears in a register of examiners that the ORR has published, or caused to be published, under regulation 23(1);
“recognised psychologist” means a person who holds the qualification of the British Psychological Society Certificate in Occupational Testing (Level A) and whose name appears in a register of psychologists that the ORR has published, or caused to be published, under regulation 23(1);
“recognised trainer” means a person whose name appears in a register of trainers that the ORR has published, or caused to be published, under regulation 23(1);
“ROGS” means the Railways and Other Guided Transport Systems (Safety) Regulations 2006 ;
“safety authority” means an authority established in an EEA State, other than in the United Kingdom and other than the Intergovernmental Commission, in accordance with article 16(1) of Directive 2004/49/EC of the European Parliament and of the Council on safety on the Community’s railways and amending Council Directive 95/18/EC on the licensing of railway undertakings and Directive 2001/14/EC on the allocation of infrastructure capacity and the levying of charges for the use of railway infrastructure and safety certification ;
“safety management system” in relation to a railway undertaking or infrastructure manager means the organisation and arrangements established by it, under regulation 5 of ROGS or articles 22 to 25 of the Channel Tunnel (Safety) Order 2007, to ensure the safe management of its operation;
“train” includes a locomotive, a shunting locomotive, a work train and a maintenance railway vehicle;
“train driving certificate” means a certificate, required by article 4(1)(b) of the Directive, indicating the rolling stock which the holder is authorised to drive and the infrastructure on which the holder is authorised to drive it;
“train driving licence” means a licence, required by article 4(1)(a) of the Directive, indicating the holder satisfies medical, educational and professional skills requirements for train driving.
Application and extent
3
1
Subject to paragraphs (2) and (3), these Regulations apply in relation to the driving of trains on the mainline railway.
2
These Regulations do not apply in relation to the driving of trains on track which is temporarily closed to normal traffic for the purpose of maintaining, renewing or upgrading railway infrastructure.
3
These Regulations do not extend to Northern Ireland.
PART 2 LICENSING AND CERTIFICATION OF TRAIN DRIVERS
Requirement for licences and certificates
4
1
Subject to paragraph (12), a railway undertaking, or infrastructure manager, must not deploy a person to drive a train unless that person is authorised to do so by a train driving licence issued by the ORR, the Department for Regional Development or a safety authority.
2
Subject to paragraphs (7) and (12), a railway undertaking must not deploy a person to drive a particular type of train, or to drive a train on particular infrastructure, unless that person is authorised to do so by a train driving certificate issued by it.
3
Subject to paragraphs (7) and (12), an infrastructure manager must not deploy a person to drive a particular type of train, or to drive a train on particular infrastructure, unless that person is authorised to do so by a train driving certificate issued by it.
4
Subject to paragraphs (7) and (12), a person must not drive a train unless that person is authorised to do so by —
a
a train driving licence issued by the ORR, the Department for Regional Development or a safety authority; and
b
a train driving certificate for the type of train driven and the infrastructure driven on issued by the railway undertaking, or infrastructure manager, by whom that person is deployed to drive the train.
5
Subject to paragraphs (7) and (12), a person who drives a train must have the required train driving licence and train driving certificate with them whilst driving it, or otherwise be able on board the train to satisfy the ORR, or their inspector duly appointed under regulation 38, that they are so authorised to drive the train by the required train driving licence and train driving certificate.
6
Subject to paragraphs (7) and (12), a railway undertaking, or infrastructure manager, must take reasonable steps to ensure that a person it deploys to drive a train has the required train driving licence and train driving certificate with them whilst driving it, or are otherwise able to satisfy the requirements of paragraph (5).
7
Subject to paragraph (8), and if a railway undertaking so decides, a train driver it deploys to drive a train on specific infrastructure need not be authorised by a train driving certificate to drive it on that infrastructure in the following cases —
a
where a disturbance to railway services has occurred which requires the re-routing of the train or the maintenance of tracks, as specified by the infrastructure manager concerned;
b
an exceptional one-off service which uses a historical train;
c
an exceptional one-off freight service provided that the infrastructure manager concerned has agreed;
d
the delivery of, or demonstration of, a new train; or
e
to enable the training or the examination of the train driver.
8
Paragraph (7) does not apply unless —
a
subject to paragraph (9), another train driver, who holds a train driving licence and a train driving certificate relating to the specific infrastructure, accompanies and supervises the driver in the cab whilst the train is driven on that infrastructure; and
b
the infrastructure manager of the specific infrastructure is given prior notice.
9
Before the 29th October 2018, the reference in paragraph (8) (a) to “another train driver, who holds a train driving licence and a train driving certificate relating to the specific infrastructure” includes a train driver who neither holds, nor is yet required to hold, such a licence or certificate but whom the railway undertaking is satisfied has sufficient knowledge and experience of the specific infrastructure to give the necessary supervision.
10
An infrastructure manager may not oblige a railway undertaking to make a decision under paragraph (7).
11
A train driving licence issued otherwise than by the ORR on the basis of an exemption from the medical requirements set out in Schedule 1 is not valid in Great Britain, and the holding of such a licence will not satisfy the requirements of paragraphs (1) or (4)(a).
12
A person who is training to be train driver (“the trainee driver”) may drive a train without being authorised to do so by a train driving licence and a train driving certificate provided that an authorised driver —
a
accompanies and supervises the trainee driver in the cab whilst the trainee driver drives the train, and
b
complies with the requirements of paragraph (5) as if the authorised driver was the driver of the train.
13
Subject to paragraph (14), in paragraph (12) “authorised driver” means a train driver who is authorised to drive the train by a train driving licence and a train driving certificate issued by the railway undertaking, or infrastructure manager, for whom the train is driven relating to the type of train driven and the infrastructure driven on.
14
Before the 29th October 2018, in paragraph (12) “authorised driver” includes a train driver who neither holds, nor is yet required to hold, a train driving licence or a train driving certificate but whom the railway undertaking, or infrastructure manager, for whom the train is driven is satisfied has sufficient knowledge and experience of the type of train driven and infrastructure used to give the necessary supervision.
Licence and certificate characteristics
5
1
The form of a train driving licence issued by the ORR, and a train driving certificate issued by a railway undertaking or infrastructure manager, under these Regulations must comply with the requirements set out in Schedule 2.
2
In particular, a train driving certificate must show the categories of train which the train driver may drive comprising either or both of —
a
Category A – shunting locomotives, work trains, maintenance railway vehicles and all other locomotives when they are used for shunting; and
b
Category B – trains for the carriage of passengers or goods or both.
Ownership of licence
6
A train driving licence is owned by the holder to whom it is issued.
Ownership of certificate
7
A train driving certificate is owned by the railway undertaking or infrastructure manager which issues it to the holder.
PART 3 CONDITIONS FOR OBTAINING LICENCES AND CERTIFICATES
Conditions for obtaining a licence
8
1
The ORR may only issue a train driving licence to an applicant if it is satisfied the applicant fulfils the conditions indicated in paragraph (2), and must issue one if so satisfied.
2
The conditions are that the applicant has —
a
attained the age of 20 years;
b
completed at least nine years’ education (primary and secondary);
c
successfully completed basic training equivalent to at least level 3 referred to in Council Decision 85/368/ EEC on the comparability of vocational training qualifications between the Member States of the European Community ;
d
passed the required medical examination;
e
passed the required occupational psychological fitness examination; and
f
passed the required general professional competence examination.
3
For the purpose of paragraph (2)(d) the required medical examination means a medical examination that covers the criteria set out in paragraph 1 of Schedule 1, includes the minimum content set out in paragraph 2(1) of Schedule 1 and is conducted by or under the supervision of a recognised doctor.
4
For the purpose of paragraph (2)(e) the required occupational psychological fitness examination means an examination that includes the minimum content set out in paragraph 2(2) of Schedule 1 and is conducted by or under the supervision of a recognised psychologist or recognised doctor.
5
For the purpose of paragraph (2)(f) the required general professional competence examination means an examination that covers the objectives and requirements set out in Schedule 3.
Conditions for obtaining a certificate
9
1
A railway undertaking or infrastructure manager may only issue a train driving certificate to an applicant if it is satisfied the applicant holds a train driving licence and fulfils the conditions indicated in paragraph (2), and must issue one if so satisfied.
2
The conditions are that the applicant —
a
is employed by it to be a train driver;
b
possesses the required language skills;
c
has passed the required specific professional knowledge examinations; and
d
has been trained by it in relation to its safety management system.
3
For the purpose of paragraph (2)(b) —
a
the required language skills means knowledge of the language relevant to the infrastructure to which the certificate is to relate that meets the language test requirements set out and referred to in paragraph 8 of Schedule 4; and
b
to test this a railway undertaking or infrastructure manager may include a language component in the examinations referred to in paragraph (2)(c).
4
For the purpose of paragraph (2)(c) —
a
the required specific professional knowledge examinations means examinations of professional knowledge and competence relating to the rolling stock and to the infrastructure for which the certificate is sought (including route knowledge and operating rules and procedures) and covers the subjects set out in paragraphs 1 to 7 of Schedule 4 and in Schedule 5; and
b
those examinations must comprise both theoretical and practical assessment including assessment of the driving ability of the applicant during driving tests on the infrastructure.
5
For the purpose of paragraph (4)(b) simulators may be used for examining the application of operational rules and driver performance in particularly difficult situations.
6
When determining whether to issue a train driving certificate the railway undertaking or infrastructure manager must take account of any document presented to it by the applicant that the applicant has obtained by virtue of regulation 16(4).
PART 4 PROCEDURES FOR OBTAINING LICENCES AND CERTIFICATES
Procedures for obtaining a licence
10
1
The ORR must have and publish on its website application procedures for the issue of a train driving licence, for the updating of the particulars of such a licence, for the renewal of such a licence and for the issue of a duplicate licence, and indicate on its website the availability of an appeal under regulation 35.
2
All applications must be submitted to the ORR by the applicant, or an entity acting on the applicant’s behalf, and must be made in accordance with the published procedures.
3
The ORR must within one month of receiving all necessary documents and information determine the application.
4
Where satisfied that a train driving licence should be issued, updated or renewed the ORR must issue it as a single original licence.
5
The ORR may issue duplicates of the train driving licence.
Procedures for obtaining a certificate
11
1
Each railway undertaking and infrastructure manager must have, as part of its safety management system, and publish on its website, application procedures for the issue of a train driving certificate, for the updating of the particulars of such a certificate, for the renewal of such a certificate and for the issue of a duplicate certificate, and indicate on its website the availability of an appeal under regulation 36.
2
All applications must be submitted to the railway undertaking or infrastructure manager by the applicant and must be made in accordance with the published procedures.
3
Each railway undertaking and infrastructure manager must update a train driving certificate issued by it whenever the holder has obtained additional authorisations from it relating to rolling stock or infrastructure.
4
Where satisfied that a train driving certificate should be issued, updated or renewed the railway undertaking or infrastructure manager must issue it as a single original certificate.
5
The railway undertaking or infrastructure manager may issue duplicates of the train driving certificate.
PART 5 VALIDITY OF LICENCES AND CERTIFICATES
Validity and renewal of licences
12
1
Subject to regulations 18 and 21 and paragraph (3), a train driving licence is valid for 10 years.
2
The ORR must not renew a train driving licence unless it is satisfied that the holder complies with regulation 13, passes any examinations undergone in pursuance of it, and undergoes continuous training, as required by regulation 29(d), to ensure the driver’s general professional knowledge is maintained.
3
A train driving licence ceases to be valid once it is suspended or withdrawn.
Periodic checks to maintain validity of licence
13
1
The holder of a train driving licence must pass periodic medical and psychological examinations meeting the requirements described in regulation 8(3) and (4).
2
For the purpose of paragraph (1) periodic medical examinations means examinations conducted at the minimum frequency and at other times set out in paragraph 3 of Schedule 1.
Validity of certificate
14
A train driving certificate ceases to be valid once it is suspended or withdrawn, or regulation 16(3) applies.
Periodic checks to maintain validity of certificate
15
1
The holder of a train driving certificate must pass periodic language and specific professional knowledge tests or examinations meeting the requirements described in regulation 9(3) and (4), and periodic tests relating to their employer’s safety management system.
2
For the purpose of paragraph (1), the frequency of periodic tests and examinations must be as determined by the railway undertaking or infrastructure manager that issued the certificate in accordance with its safety management system, but must not be less than the minimum frequencies set out in Schedule 6.
3
When the holder of a train driving certificate passes the tests and examinations required by paragraph (1) the certificate must be endorsed with a statement to that effect by the railway undertaking or infrastructure manager that issued it.
Cessation of employment
16
1
A railway undertaking or infrastructure manager must give written notice to the ORR when a person ceases to be employed by them as a train driver.
2
Where a person is so employed as an independent contractor or volunteer, if they do not drive a train for the railway undertaking or infrastructure manager for a period of twelve months, their employment will be deemed to have ceased upon the expiry of that period if it has not otherwise been terminated.
3
When a person ceases to be employed by a railway undertaking or infrastructure manager as a train driver, a train driving certificate issued by them in relation to that person ceases to be valid.
4
If a train driving certificate becomes invalid by virtue of paragraph (3), the railway undertaking or infrastructure manager that issued it must provide the train driver with —
a
a certified copy of it endorsed to indicate when it ceased to be valid; and
b
a copy of all documents providing evidence of the driver’s training, qualifications, experience and professional competence relevant to train driving undergone, obtained or achieved by the driver whilst employed as a train driver by that body.
Monitoring
17
1
A railway undertaking or infrastructure manager must have a system for monitoring train drivers employed by them to check that the requirements of these Regulations which apply to them are adhered to.
2
If the results of that monitoring call into question a train driver’s competence for the job, or the continuing validity of their train driving licence or train driving certificate, the railway undertaking or infrastructure manager must immediately take any necessary action which may include —
a
informing the ORR of matters relevant to the continuing validity of the licence;
b
requiring the driver to undergo the relevant examinations or tests referred to in regulations 13 or 15; or
c
suspending or withdrawing the driver’s train driving certificate.
3
A train driver who considers that his state of health calls into question his fitness to drive trains must immediately inform the railway undertaking or infrastructure manager by whom he is employed.
4
A railway undertaking or infrastructure manager that becomes aware that a train driver employed by them has failed to comply with regulation 13 or 15, or has failed an examination or test required by those regulations, or that the health of the train driver has deteriorated to a point where the driver’s fitness to drive trains is called into question, must immediately take any necessary action which may include —
a
informing the ORR of matters relevant to the continuing validity of the driver’s train driving licence;
b
requiring the driver to undergo the relevant examinations or tests referred to in regulations 13 or 15; or
c
suspending or withdrawing the driver’s train driving certificate.
5
A railway undertaking or infrastructure manager must inform the ORR when a train driver employed by them has suffered work incapacity for a period of more than three months.
PART 6 SUSPENSION AND WITHDRAWAL OF LICENCES AND CERTIFICATES
Suspension or withdrawal of licences issued by the ORR
18
1
Without prejudice to regulation 21, if the ORR considers that the holder of a train driving licence issued by the ORR no longer satisfies a condition required for the holding of it, or decides to suspend or withdraw the licence pursuant to paragraph (3), the ORR must —
a
suspend or withdraw the licence; and
b
inform the holder and his employer of —
i
the suspension or withdrawal;
ii
the reason for it;
iii
the availability of the appeal procedure under regulation 35; and
iv
any procedure to be followed to seek reinstatement of the licence.
2
If the ORR suspends or withdraws a train driving licence the holder must surrender it to the ORR.
3
If a safety authority, the Department for Regional Development or the Intergovernmental Commission —
a
informs the ORR that it considers the holder of a train driving licence issued by the ORR no longer satisfies a condition required for the holding of it, and
b
gives the ORR a reasoned request for a review of the holder’s eligibility to hold the licence, or for the licence to be suspended or withdrawn,
the ORR must consider that request and, within four weeks, notify the safety authority, the Department for Regional Development or the Intergovernmental Commission, as the case may be, of its decision whether to suspend or withdraw the licence or take any other action.
Suspension or withdrawal of other train driving licences and driver prohibition
19
1
Without prejudice to regulation 21, if the ORR considers that the holder of a train driving licence issued by another safety authority, or by the Department for Regional Development, no longer satisfies a condition required for the holding of it the ORR must —
a
inform the safety authority or the Department for Regional Development, as the case may be, of this view;
b
give that authority or Department, as the case may be, a reasoned request for a review of the holder’s eligibility to hold the licence, or for the licence to be suspended or withdrawn; and
c
notify the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission of the request.
2
Pending any suspension or withdrawal of the licence, or other conclusion on the request, the ORR may prohibit the holder from driving a train in Great Britain.
Suspension or withdrawal of certificates and driver prohibition
20
1
Without prejudice to regulation 21, if the ORR considers that the holder of a train driving certificate no longer satisfies a condition required for the holding of it the ORR must —
a
inform the railway undertaking or infrastructure manager which issued it of this view; and
b
give that body a reasoned request for a review of the holder’s eligibility to hold the certificate, or for the certificate to be suspended or withdrawn.
2
Upon receipt of such a request the railway undertaking or infrastructure manager must consider it and, within four weeks, notify the ORR of its decision whether to suspend or withdraw the certificate or take any other action.
3
Where the railway undertaking or infrastructure manager concludes that the holder no longer satisfies a condition required for the holding of the train driving certificate, it must take appropriate measures which may include —
a
requiring the holder to undergo the relevant tests or examinations referred to in regulation 15; or
b
suspending or withdrawing the holder’s train driving certificate.
4
Pending any suspension or withdrawal of the train driving certificate, or other conclusion on the request, the ORR may prohibit the holder from driving a train in Great Britain.
5
If the ORR exercises the power in paragraph (4) it must inform the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission.
Serious threat to the safety of the railway
21
1
If the ORR considers that a train driver is a serious threat to the safety of the railways it must immediately take any necessary action.
2
For the purpose of paragraph (1) any necessary action may include —
a
requesting the railway undertaking or infrastructure manager to stop any train being driven by the driver;
b
suspending or withdrawing the driver’s train driving licence, if issued by the ORR; or
c
prohibiting the driver from driving a train in Great Britain.
3
If the ORR takes any action under this regulation it must inform the Commission, the other safety authorities, the Department for Regional Development and the Intergovernmental Commission.
Appeal to the Commission
22
1
If the ORR considers that a decision of a safety authority on a request made to it by the ORR under regulation 19 does not comply with the relevant criteria it must refer the matter to the Commission in pursuance of article 29(5) of the Directive.
2
For the purposes of paragraph (1), “the relevant criteria” means any criteria set out in the Directive which are relevant to the decision.
3
If the ORR has referred a matter to the Commission under paragraph (1), any prohibition imposed by the ORR under regulation 19 may be maintained in force until the matter is concluded.
PART 7 REGISTERS AND INFORMATION
Registers of recognised persons
23
1
The ORR must have, keep up to date and publish registers of —
a
doctors,
b
examiners,
c
psychologists, and
d
trainers,
recognised by the ORR as competent to carry out functions under, or referred to in, regulations 8, 30 and 31.
2
Trainers and examiners may be individuals or bodies of persons corporate or unincorporate.
3
Subject to paragraphs (4) and (5), the inclusion of a person in a register referred to in paragraph (1) must be based on the criteria of independence, competence and impartiality.
4
Paragraph (3) does not apply if and to the extent that the Commission approves an exception under article 20(2) of the Directive.
5
The criterion of independence referred to in paragraph (3) does not apply in respect of a trainer referred to in regulation 30.
Registers of licences
24
1
The ORR must have and keep up to date a register of train driving licences issued by it or on its behalf, and in particular the register should include details of any updating, renewal, amendment, expiry, suspension or withdrawal of any such licence, and record any loss, theft or destruction of any such licence.
2
The register must contain the data required for each licence by paragraph 4 of Schedule 2, and it must be possible to find the data for each licence on the register by the use of a national number allotted to each train driver.
Registers of certificates
25
1
Each railway undertaking and infrastructure manager must have and keep up to date a register of all train driving certificates issued by it, and in particular the register should include details of any updating, renewal, amendment, expiry, suspension or withdrawal of any such certificate, and record any loss, theft or destruction of any such certificate.
2
The register must contain the data required for each certificate by paragraph 4 of Schedule 2.
Information relating to the status of licences
26
The ORR must, upon request, provide information on the status of train driving licences issued by it or on its behalf to safety authorities, the Department for Regional Development, the Intergovernmental Commission, the Agency or any employer of train drivers.
Information relating to certificates etc.
27
Railway undertakings and infrastructure managers must, upon request, provide to the ORR any information relating to train driving certificates issued by them or any other functions carried out by them under these Regulations.
Information in relation to international train services
28
Railway undertakings and infrastructure managers must, upon request, provide to the ORR, safety authorities, the Department for Regional Development and the Intergovernmental Commission information on the content of train driving certificates issued by them in relation to train drivers engaged on international train services.
PART 8 TRAINING AND EXAMINATION
Training content
29
Each railway undertaking and infrastructure manager that employs train drivers must ensure that their training —
a
complies with the requirements of, and takes into account the guidance given in, Schedule 7;
b
includes instruction on train driving licences and covers the general professional knowledge, and meets the objectives, set out in Schedule 3;
c
includes instruction on train driving certificates, and covers the professional knowledge, and meets the objectives, set out in Schedules 4 and 5; and
d
meets the requirements for continuous training which —
i
are set up to ensure that staff competencies are maintained; and
ii
form part of the safety management system of the railway undertaking or infrastructure manager.
Trainers
30
1
Subject to paragraph (2), a person may only provide training intended to enable a another —
a
to pass the examination required by regulation 8(2)(f),
b
to satisfy the condition in regulation 9(2)(b), or
c
to pass the examinations required by regulation 9(2)(c),
if that person is a recognised trainer, or a trainer accredited or recognised to act as a trainer in another Member State in accordance with the requirements of article 20 of the Directive.
2
Training relating to infrastructure knowledge, including route knowledge and operating rules and procedures, may only be provided by a recognised trainer.
Examinations
31
1
The ORR must —
a
set or approve the general professional competence examination referred to in regulation 8(2)(f);
b
designate the examiner; and
c
include guidance and information about the examination in the publication it makes on its website in pursuance of regulation 10(1).
2
Each railway undertaking and infrastructure manager must —
a
set or approve the specific professional knowledge examinations relevant to its rolling stock or infrastructure, as the case may be, as referred to in regulation 9(2)(c);
b
designate the examiner for the examinations it sets or approves; and
c
include guidance and information about these examinations in the publication it makes on its website in pursuance of regulation 11(1).
3
Subject to paragraph (4), a person may only be designated as an examiner under paragraphs (1)(b) or (2)(b) if that person is —
a
a recognised examiner; or
b
an examiner accredited or recognised to act as a examiner in another Member State in accordance with the requirements of article 20 of the Directive.
4
In so far as an examination set or approved under paragraph (2)(a) is for infrastructure knowledge evaluation, including evaluation of route knowledge and operating rules and procedures, the examiner must be a recognised examiner.
5
The ORR, railway undertaking or infrastructure manager, as the case may be, must ensure that any examination referred to in paragraphs (1)(a) or (2)(a) which they set or approve are organised in such a way as to avoid any conflict of interest arising.
6
Notwithstanding paragraph (5), a railway undertaking or infrastructure manager may designate a recognised examiner under paragraph (2)(b) who is also its employee, provided the examiner has not trained the candidate for the examination.
PART 9 REVIEWING STANDARDS
Quality standards
32
1
Subject to paragraph (2), the ORR must have a system to monitor and keep under continuous review the training, skills assessment and examination of train drivers who are required to hold train driving licences and train driving certificates under these Regulations, and the keeping of train driving licences and train driving certificates up to date, with a view to ensuring appropriate standards are achieved and maintained.
2
Paragraph (1) does not require the duplication of any monitoring and review already required by and carried out under the safety management system of a railway undertaking or infrastructure manager.
Independent assessment
33
1
Subject to paragraph (2), within five years after this regulation comes into force, and thereafter within five yearly intervals, the Secretary of State must cause to be carried out, by an appropriately qualified and independent person, an assessment of —
a
the procedures for the training, skills assessment and examination of train drivers, and
b
the system for the issue of train driving licences and train driving certificates,
under these Regulations.
2
Paragraph (1) does not require the duplication of any assessment already required by and carried out under the safety management system of a railway undertaking or infrastructure manager.
3
The Secretary of State must provide the results of each assessment to the ORR, railway undertakings and infrastructure managers.
4
The ORR, railway undertakings and infrastructure managers must give due consideration to the results of each assessment and any recommendations given in them and take any action reasonably appropriate to remedy any shortcomings identified.
PART 10 DELEGATION OF FUNCTIONS BY THE ORR
Delegation of functions by the ORR
34
1
Subject to paragraph (3), the ORR may delegate to any person the exercise of the following functions —
a
dealing with and determining (including issuing any associated documents) applications under regulation 10 for —
i
train driving licences,
ii
their update or renewal, or
iii
duplicates of them;
b
recognising trainers and examiners under regulation 23;
c
having, keeping up to date and publishing registers of persons recognised under regulation 23(1);
d
having and keeping up to date a register of train driving licences under regulation 24.
2
A delegation —
a
may be made either wholly or to such extent as the ORR may determine;
b
may be made either generally or in such cases or areas as the ORR may determine;
c
may be made subject to such conditions and for such period as the ORR may determine;
d
may be revoked by the ORR at any time;
e
will not prevent the ORR from exercising the function delegated.
3
The ORR may only delegate a function referred to in paragraph (1)(a) to a railway undertaking —
a
for the purposes of that undertaking carrying out that function in relation to persons employed by the undertaking as train drivers or trainee train drivers; or
b
if the function is not delegated exclusively to that undertaking.
4
If the ORR delegates a function it must establish a system for monitoring how that function is carried out.
PART 11 APPEALS AGAINST DECISIONS OF THE ORR
Appeals against decisions of the ORR
35
1
A person concerned (“the appellant”) may appeal to the Secretary of State against —
a
a decision of the ORR referred to in paragraph (2); or
b
a decision of a person duly delegated under regulation 34(1)(a) not to grant an application for a train driving licence, its update or renewal or for the issue of a duplicate of it.
2
The decisions of the ORR referred to are decisions —
a
not to grant an application for —
i
a train driving licence,
ii
its update or renewal, or
iii
a duplicate of it;
b
to suspend or withdraw a train driving licence; or
c
to prohibit a person from driving a train in Great Britain.
3
A person is concerned if that person is the applicant, the owner of the train driving licence, the person prohibited from driving or a railway undertaking or infrastructure manager which employs that person.
4
The Secretary of State may, in such cases as the Secretary of State considers it appropriate to do so, having regard to the nature of the questions which appear to the Secretary of State to arise, direct that an appeal under this regulation will be determined on behalf of the Secretary of State by a person appointed by the Secretary of State for that purpose.
5
Before the determination of an appeal the Secretary of State must ask the appellant, and the party against whose decision the appeal is brought, whether they wish to appear and be heard on the appeal and —
a
the appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard;
b
the Secretary of State must, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.
6
The Tribunals and Inquiries Act 1992 applies to a hearing held by a person appointed in pursuance of paragraph (4) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on behalf of the Secretary of State by that person.
7
A hearing held by a person appointed in pursuance of paragraph (4) is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council) .
8
Without prejudice to the right of any person to make an application for judicial review —
a
a determination by the Secretary of State, or by a person appointed to make a determination on the Secretary of State’s behalf, on an appeal brought under this regulation is binding on all parties affected by that determination;
b
the Secretary of State, or person so appointed, may give such directions as they consider appropriate to give effect to the determination; and
c
it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.
9
The Secretary of State may pay to any person appointed to hear or determine an appeal under this regulation such remuneration and allowances as the Secretary of State may with the approval of the Treasury determine.
10
A failure of the ORR, or a person duly delegated to determine applications on its behalf under regulation 34(1) (a), to make a decision on an application for a train driving licence, or for its update or renewal or for a duplicate of it, within one month of receiving all the necessary documents may be treated as a refusal of the application for the purpose of making an appeal under this regulation.
11
Where under paragraph (5)(b) a party expresses a wish to appear and be heard, the Health and Safety Licensing Appeals (Hearings Procedure) Rules 1974 , as respects England and Wales, and the Health and Safety Licensing Appeals (Hearings Procedure) (Scotland) Rules 1974 , as respects Scotland, apply to any appeal under paragraph (1) as they apply to an appeal under section 44(1) of the 1974 Act (appeals), but with the modification that references to a licensing authority are to be read as references to the party against whose decision the appeal is brought.
PART 12 APPEALS AGAINST DECISIONS OF RAILWAY UNDERTAKINGS AND INFRASTRUCTURE MANAGERS
Appeals against decisions of railway undertakings and infrastructure managers
36
1
A person concerned (“the appellant”) may appeal to the ORR against a decision of a railway undertaking or infrastructure manager referred to in paragraph (2).
2
The decisions of a railway undertaking or infrastructure manager referred to are decisions —
a
not to grant an application for —
i
a train driving certificate, or
ii
its update or renewal; or
b
to suspend or withdraw a train driving certificate.
3
A person is concerned if that person is the applicant in question or the holder of the train driving certificate in question.
4
The ORR may, in such cases as it considers it appropriate to do so, having regard to the nature of the questions which appear to it to arise, direct that an appeal under this regulation will be determined on its behalf by a person appointed by it for that purpose.
5
Before the determination of an appeal the ORR must ask the appellant, and the party against whose decision the appeal is brought, whether they wish to appear and be heard on the appeal and —
a
the appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard;
b
the ORR must, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.
6
The Tribunals and Inquiries Act 1992 applies to a hearing held by a person appointed in pursuance of paragraph (4) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on behalf of the ORR by that person.
7
A hearing held by a person appointed in pursuance of paragraph (4) is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council).
8
Without prejudice to the right of any person to make an application for judicial review —
a
a determination by the ORR, or by a person appointed to make a determination on the ORR’s behalf, on an appeal brought under this regulation is binding on all parties affected by that determination;
b
the ORR, or person so appointed, may give such directions as they consider appropriate to give effect to the determination; and
c
it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.
9
The ORR may pay to any person appointed to hear or determine an appeal under this regulation such remuneration and allowances as the ORR may with the approval of the Treasury determine.
10
A failure of a railway undertaking or infrastructure manager to make a decision on an application for a train driving certificate, or for its update or renewal, within one month of receiving all the necessary documents may be treated as a refusal of the application for the purpose of making an appeal under this regulation.
11
Where under paragraph (5)(b) a party expresses a wish to appear and be heard, the Health and Safety Licensing Appeals (Hearing Procedure) Rules 1974, as respects England and Wales, and the Health and Safety Licensing Appeals (Hearing Procedure) (Scotland) Rules 1974, as respects Scotland, apply to any appeal under paragraph (1) as they apply to an appeal under section 44(1) of the 1974 Act (appeals), but with the modification that references to a licensing authority are to be read as references to the party against whose decision the appeal is brought.
PART 13 ENFORCEMENT
Anti-fraud measures
37
The ORR, railway undertakings and infrastructure managers must take such steps as are reasonably necessary to avoid —
a
the falsification of train driving licences and train driving certificates, and
b
the tampering with the registers required by regulations 24 and 25.
Enforcement
38
1
It is the duty of the ORR to make adequate arrangements for the enforcement of these Regulations.
2
Subject to paragraph (5), the provisions of the 1974 Act specified in paragraph (3) (“the specified provisions”) apply for the purposes of the enforcement of these Regulations as if in the specified provisions —
a
a reference to the “enforcing authority” was a reference to the ORR;
b
a reference to the “relevant statutory provisions” was a reference to these Regulations and to the specified provisions; and
c
a reference to “health and safety regulations” was a reference to these Regulations.
3
The provisions of the 1974 Act referred to in paragraph (2) are —
a
sections 19 and 20 (appointment and powers of inspectors) , excluding section 20(3);
b
sections 21 and 22 (improvement and prohibition notices) ;
c
section 23 (provisions supplementary to sections 21 and 22), excluding section 23(3), (4) and (6);
d
section 24 (appeal against improvement and prohibition notices) ;
e
section 26 (power to indemnify inspectors);
f
section 28 (restrictions on disclosure of information) ;
g
sections 33(1)(c), (e) to (h), (j) to (o), 34(2), 36(1) and (2), 37 to 41 and 42(1) to (3) (provision as to offences) ; and
h
section 46 (service of notices).
4
The mode of trial and maximum penalty applicable to each offence under section 33 of the 1974 Act so applied and listed in the first column of the following table are set out opposite that offence in the subsequent columns of the table.
Offence Mode of trial Penalty on summary conviction Penalty on conviction on indictment
An offence under section 33(1) (c), (e), (f), (g), (j), (k), (l), (m) or (o). Summarily or on indictment. Imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale as it has effect from time to time (as if the offence was triable only summarily), or both. Imprisonment for a term not exceeding 2 years, or a fine, or both. An offence under section 33(1) (h). Summarily only. Imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the standard scale as it has effect from time to time, or both. An offence under section 33(1) (n). Summarily only. A fine not exceeding level 5 on the standard scale as it has effect from time to time.
5
A failure to discharge a duty placed on the Office of Rail Regulation by these Regulations is not an offence under section 33(1)(c) of the 1974 Act.
PART 14 TRANSITIONAL PROVISIONS
Transitional provisions
39
1
Regulation 4 comes into force —
a
on the 29th October 2011 in relation to the driving of trains by a person who —
i
is to drive trains both on the mainline railway and in at least one other Member State, and
ii
has not driven trains both on the mainline railway and in at least one other Member State before that date, (excluding any such driving experience gained as a trainee driver);
b
on the 29th October 2013 in relation to the driving of trains by a person who has not driven trains on the mainline railway before that date, (excluding any such driving experience gained as a trainee driver); and
c
on the 29th October 2018 in so far as it has not already come into force under sub-paragraph (a) or (b).
2
Subject to paragraph (3), regulations 5 to 18, 20, 23, 26 to 32, 35 to 37 and the Schedules come into force on the 6th April 2011.
3
For the purposes of appeals against decisions of the ORR referred to in regulation 35(2)(c), regulation 35 comes into force on 6th April 2010.
4
Regulations 24 and 25 come into force on the 29th October 2011.
5
Where this paragraph applies, in determining a first application for a train driving licence the ORR —
a
must take into account any train driving qualifications, experience and competencies acquired by the applicant prior to the application;
b
in exceptional cases may waive, in whole or in part, the requirement in regulation 8(2)(d) if it thinks it appropriate to do so provided that the validity of any train driving licence issued on the basis of such exemption is limited to Great Britain;
c
may waive, in whole or in part, the requirements in regulation 8(2)(e) and (f) if it thinks it appropriate to do so; and
d
may require the applicant to pass other examinations or tests, or undertake further training, if it thinks it appropriate to do so.
6
Where this paragraph applies, in determining a first application for a train driving certificate a railway undertaking or infrastructure manager —
a
must take into account any train driving qualifications, experience and competencies relevant to the rolling stock or infrastructure in relation to which the certificate is sought, acquired by the applicant prior to the application;
b
may waive, in whole or in part, the requirement in regulation 9(2)(c) if it thinks it appropriate to do so; and
c
may require the applicant to pass other examinations or tests, or undertake further training, if it thinks it appropriate to do so.
7
Paragraphs (5) and (6) apply to a first application for a train driving licence, or train driving certificate, made before the 29th October 2018.
Signed by authority of the Secretary of State
C.D. Mole
Parliamentary Under Secretary of State
Department for Transport
9th March 2010


text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) (Amendment) Regulations 2010.
2
Subject to paragraph (3), these Regulations come into force on 1st November 2010.
3
Paragraph (2) of regulation 19 comes into force on 31st January 2011.
4
In these Regulations —
“the 2008 Regulations ” means the Employment and Support Allowance Regulations 2008 ; and
“the Migration Regulations ” means the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 .
Migration Regulations: amendment of regulation 1
2
In regulation 1(3) of the Migration Regulations (citation and commencement) for “paragraph 2” substitute “paragraphs 1A and 2”.
Migration Regulations: amendment of regulation 3
3
For regulation 3 of the Migration Regulations (persons to whom the Migration Regulations apply), substitute —
3
In these Regulations, regulations 4 to 22 apply to any person who, on or after 1st October 2010, is entitled to an existing award.
.
Migration Regulations: amendment of regulation 7
4
1
Regulation 7 of the Migration Regulations (qualifying for conversion) is amended as follows.
2
The existing provision becomes paragraph (1).
3
For “For the purposes of regulation 5(2)(a)” substitute “Subject to paragraph (2), for the purposes of regulation 5(2)(a)”.
4
After “notified person” insert “(“P”)”.
5
After “employment and support allowance” insert “under these Regulations”.
6
For “the person” substitute “P”.
7
After paragraph (1), add —
2
Where P is entitled to an award of an employment and support allowance under the 2007 Act and it has been determined in respect of that entitlement that P —
a
has limited capability for work, or
b
is to be treated as having limited capability for work, other than by virtue of regulation 30 of the 2008 Regulations,
in relation to the conversion of P’s existing award, P is to be taken as having satisfied the condition set out in section 1(3)(a) of the 2007 Act (limited capability for work).
.
Migration Regulations: amendment of regulation 8
5
1
Regulation 8 of the Migration Regulations (amount of an employment and support allowance on conversion) is amended as follows.
2
The existing provision becomes paragraph (1).
3
In paragraph (1), Step 2, renumber paragraphs (c) and (d) as paragraphs (a) and (b) respectively.
4
After paragraph (1), add —
2
In a case to which regulation 7(2) applies (cases where a person is already entitled to an award of an employment and support allowance), a determination that the person has, or does not have, limited capability for work-related activity made in respect of the person’s current entitlement to an award of an employment and support allowance is to be treated as having been made for the purposes of Step 1.
.
Migration Regulations: amendment of regulation 10
6
1
Regulation 10 of the Migration Regulations (transitional addition: incapacity benefit or severe disablement allowance) is amended as follows.
2
In paragraph (5) —
a
for sub-paragraph (a), substitute–
a
in the case of incapacity benefit, the weekly rate payable —
i
under section 30B(2), (6) or (7) (subject to any deduction made in accordance with section 46(3) of the Pension Schemes Act 1993 ) of the Contributions and Benefits Act (incapacity benefit: rate),
ii
under section 40(5) or 41(4) of that Act (long-term incapacity benefit for widows and for widowers),
iii
under section 80, 81 or 86A of that Act (incapacity benefit: beneficiary’s dependent children; restrictions on increase – child not living with beneficiary etc ; and increases for adult dependants),
iv
by virtue of regulation 11(4) of the Social Security (Incapacity Benefit) (Transitional) Regulations 1995 (former sickness benefit), or
v
by virtue of regulations 17(1) (transitional awards of long-term incapacity benefit) or 17A (awards of incapacity benefit in cases where periods of interruption of employment and periods of incapacity for work link) of those Regulations ; or
; and
b
in sub-paragraph (b), for “sections 68(7) and 69(1)” substitute “sections 68(7), 69(1) and 90 ”.
3
After paragraph (5), add —
6
Subject to paragraph (7), in determining the weekly rate of incapacity benefit or severe disablement allowance for the purposes of paragraph (5) the following amounts shall be disregarded–
a
any relevant deduction within the meaning of regulation 2(1) (interpretation); and
b
any other deduction relating to the existing award which is made by virtue of the Contributions and Benefits Act, the Administration Act or any other Act which is amended by Schedule 3 to the 2007 Act, the Social Security (Incapacity for Work) Act 1994 or by virtue of regulations made under those Acts.
7
Where any of the enactments referred to in paragraph (6)(b) provide for an additional amount of incapacity benefit or severe disablement allowance to be payable in prescribed circumstances (such as an increase for an adult dependant) but that additional amount is reduced or not payable in relation to P (such as where the dependant has earnings in excess of the standard amount of an increase), in determining the weekly rate of incapacity benefit or severe disablement allowance, only the reduced additional amount (if any) is to be taken into account.
.
Migration Regulations: amendment of regulation 14
7
1
Regulation 14 of the Migration Regulations (conversion decision that existing award qualifies for conversion) is amended as follows.
2
In paragraph (1), for “Paragraphs (2) and (3)” substitute “Subject to paragraph (2A), paragraphs (2) to (6)”.
3
After paragraph (2) insert —
2A
Where P —
a
has an existing award of income support;
b
would, on the effective date of P’s conversion decision, remain entitled to income support (by virtue of another provision of the Income Support (General) Regulations 1987 ) were P not a person to whom regulation 6(4)(a) or 13(2)(b) or (bb) of, or paragraph 7(a) or (b), 10, 12 or 13 of Schedule 1B to, those Regulations (persons incapable of work or disabled) applied; and
c
notifies the Secretary of State before the effective date of P’s conversion decision that P wishes to remain entitled to income support on that date,
paragraph (2B) applies instead of paragraphs (2) and (4).
2B
Where paragraph (2A) applies, any entitlement of P to one or both of —
a
an existing award of incapacity benefit or severe disablement allowance; or
b
a disability premium by virtue of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987 (additional condition for the higher pensioner and disability premiums),
shall terminate immediately before the effective date of P’s conversion decision.
.
4
For paragraphs (3) and (4) substitute —
3
In a case to which regulation 7(2) applies (cases where a person is already entitled to an award of an employment and support allowance), any entitlement of P to an award of an employment and support allowance by virtue of the 2007 Act shall terminate immediately before the effective date of P’s conversion decision.
4
Where, immediately before the effective date of the conversion decision, any relevant deduction was made from the existing award or awards, or from an award of an employment and support allowance which terminates in accordance with paragraph (3), an equivalent deduction shall be made from the award of an employment and support allowance to which P is entitled by virtue of these Regulations.
5
Where, immediately before the effective date of the conversion decision, P is entitled to be credited with any earnings under regulation 8B(2)(a) of the Social Security (Credits) Regulations 1975 (credits for incapacity for work), P shall not be entitled to be so credited under that regulation on or after that date.
6
Where —
a
paragraph (2) applies,
b
P is a member of a joint-claim couple, and
c
immediately before the effective date of that conversion decision that couple was entitled to a disability premium by virtue of paragraph 20H(1)(b) or (d) of Schedule 1 to the Jobseeker’s Allowance Regulations 1996 (additional conditions for higher pensioner and disability premium: severe disablement allowance or incapacity benefit),
paragraph 20H(1)(ee) of that Schedule (limited capability for work) shall be treated as satisfied in relation to that couple on the effective date of that conversion decision.
7
In this regulation —
a
paragraphs (2) to (6) are subject to regulation 17 (changes of circumstances before the effective date); and
b
“joint-claim couple” has the same meaning as in section 1(4) of the Jobseekers Act 1995 .
.
Migration Regulations: amendment of regulation 15
8
1
Regulation 15 of the Migration Regulations (conversion decision that existing award does not qualify for conversion) is amended as follows.
2
In paragraph (1), for “Subject to paragraph (4), paragraphs (2) and (3) apply” substitute “Subject to paragraphs (2A) and (4), paragraphs (2), (3) and (6) apply”.
3
After paragraph (2), insert —
2A
Where P–
a
has an existing award of income support, and
b
would, on the effective date of P’s conversion decision, remain entitled to income support (by virtue of another provision of the Income Support (General) Regulations 1987) were P not a person to whom regulations 6(4)(a) or 13(2)(b) or (bb) of, or paragraph 7(a) or (b), 10, 12 or 13 of Schedule 1B to, those Regulations (persons incapable of work or disabled) applied,
P’s existing award of income support shall only terminate under paragraph (2)(b) if P notifies the Secretary of State before the effective date of P’s conversion decision that P does not wish to remain entitled to income support on that date.
2B
Where paragraph (2A) applies, and P’s existing award of income support does not terminate under paragraph (2)(b), any entitlement of P to a disability premium by virtue of paragraph 12(1)(b) of Schedule 2 to the Income Support (General) Regulations 1987 (additional condition for the higher pensioner and disability premiums) shall terminate immediately before the effective date of P’s conversion decision.
.
4
In paragraph (3), for “that date”, where it first appears, substitute “the effective date of P’s conversion decision”.
5
For paragraph (6), substitute —
6
Where —
a
paragraph (2) applies; and
b
P is a member of a joint-claim couple,
any entitlement of that couple to a disability premium by virtue of paragraph 20H(1)(b) or (d) of Schedule 1 to the Jobseeker’s Allowance Regulations 1996 (additional conditions for higher pensioner and disability premium: severe disablement allowance or incapacity benefit) shall terminate immediately before the effective date of P’s conversion decision.
7
In this regulation —
a
paragraphs (2), (2A), (3) and (6) are subject to regulation 17 (changes of circumstances before the effective date); and
b
“joint-claim couple” has the same meaning as in section 1(4) of the Jobseekers Act 1995.
.
Migration Regulations: amendment of regulation 17
9
Regulation 17 of the Migration Regulations (changes of circumstances before the effective date) is amended as follows —
a
after “occurred before that date” insert “and which would have been relevant to the existing award or awards”;
b
for paragraph (a), substitute–
a
must treat any award–
i
converted by virtue of regulation 14(2) (conversion decision that existing award qualifies for conversion), or
ii
terminated by virtue of regulation 14(2B)(a) (termination of an existing award of incapacity benefit or severe disablement allowance where entitlement to award of income support continues), regulation 14(3) (termination of award of an employment and support allowance where that entitlement already exists) or regulation 15(2) (termination of existing awards which do not qualify for conversion),
as if that award had not been converted or terminated;
b
must treat any entitlement to be credited with earnings terminated by virtue of regulation 14(5) or 15(3) as if it had not been terminated;
c
must treat any entitlement to a disability premium terminated by virtue of regulations 14(2B)(b), 15(2B) or 15(6) as if it had not been terminated;
; and
c
renumber paragraphs (b) to (e) as (d) to (g) respectively.
Migration Regulations: amendment of regulation 19
10
1
Regulation 19 of the Migration Regulations (reducing the transitional addition: increases for dependent children) is amended as follows.
2
For paragraph (1)(a) substitute —
a
on the day before the effective date of T’s conversion decision, was entitled in connection with an existing award of incapacity benefit or severe disablement allowance to an increase under–
i
in the case of incapacity benefit, section 80 of the Contributions and Benefits Act (beneficiary’s dependent children), or
ii
in the case of severe disablement allowance, section 90 of that Act (beneficiaries under sections 68 and 70),
as those sections have effect by virtue of article 3 of the Tax Credits (Commencement No. 3 and Transitional Provisions and Savings) Order 2003 ; and
.
3
For paragraph (3) substitute —
3
The amount of the transitional addition shall be reduced (but not below nil) by a sum equal to the amount of the increase referred to in paragraph (1)(a) payable to T on the day before the effective date, in respect of the child or qualifying young person in relation to whom child benefit terminated.
.
Migration Regulations: amendment of regulation 20
11
In regulation 20 of the Migration Regulations (reducing the transitional addition: increases for adult dependants), for paragraph (3) substitute —
3
The amount of the transitional addition shall be reduced (but not below nil) by a sum equal to the amount which, on the day before the effective date, was the amount of the increase referred to in paragraph (1)(a) payable to T.
.
Migration Regulations: amendment of regulation 21
12
1
Regulation 21 of the Migration Regulations (termination of transitional addition) is amended as follows.
2
In paragraph (1)(b) —
a
for “paragraphs (2) and (3)”, substitute “paragraphs (2), (3) and (4)”; and
b
for “an employment and support allowance”, substitute “an employment and support allowance (entitlement to which arises from sections 1(2)(a) or 1(2)(b) of the 2007 Act), or to a contributory allowance or to an income-related allowance”.
3
In paragraph (2), for “the termination of the person’s entitlement to an employment and support allowance” substitute “a termination of the person’s entitlement to which that provision refers”.
4
For paragraphs (3) to (6), substitute —
3
Any termination by virtue of paragraph (1)(b) of T’s entitlement to a transitional addition under regulation 10(2)(a) (transitional addition: incapacity benefit or severe disablement allowance) shall instead have effect as a suspension of that entitlement in Case 1.
4
Any termination by virtue of paragraph (1)(b) of T’s entitlement to a transitional addition under regulation 11(2)(a) (transitional addition: income support) shall instead have effect as a suspension of that entitlement in Case 1 or Case 2.
5
Case 1 is where —
a
on a subsequent claim made by T for an employment and support allowance, a period of limited capability for work is treated under regulation 145(1) or (2) of the 2008 Regulations (linking rules) as a continuation of an earlier period of limited capability for work;
b
T’s entitlement to an allowance which is referred to in paragraph (1)(b) (“T’s old entitlement”) was in respect of that earlier period; and
c
in a case to which regulation 145(1) of the 2008 Regulations applies (12 week linking rule), it is determined, in respect of that subsequent claim, that T has, or is treated as having, limited capability for work, other than under regulation 30 of the 2008 Regulations.
6
Case 2 is where —
a
the reason for terminating T’s entitlement to an employment and support allowance arising from section 1(2)(b) of the 2007 Act (financial position), or to an income-related allowance, as the case may be, was that the condition set out in paragraph 6(1)(f) of Schedule 1 to the 2007 Act (no entitlement to income-related allowance where other member of a couple engages in remunerative work) had ceased to be satisfied in T’s case;
b
the condition referred to in sub-paragraph (a) is subsequently satisfied;
c
T again becomes entitled to an allowance which is referred to in sub-paragraph (a); and
d
that entitlement commences before the end of the 12 week period which begins with the date of termination of T’s old entitlement.
7
In Cases 1 and 2, the amount of the transitional addition or additions, as the case may be, to which T becomes entitled from the commencement of T’s subsequent entitlement to an allowance which is referred to in paragraph (1)(b) is to be determined by reference to the amount of the transitional addition or additions, as the case may be, to which T was entitled on the termination of T’s old entitlement, subject to any subsequent adjustment of that amount that would have been made under this Part.
.
Migration Regulations: amendment of regulation 22
13
In regulation 22(a) of the Migration Regulations (disapplication of certain enactments following conversion decision), after “30A,” insert “30C,”.
Migration Regulations: insertion of regulation 23A (termination of entitlement to the disability premium for persons incapable of work: income support)
14
After regulation 23 (treatment of claims until coming into force of regulation 24), insert —
Termination of entitlement to the disability premium for persons incapable of work: income support
23A
1
Subject to paragraph (4), paragraph 12 of Schedule 2 to the Income Support (General) Regulations 1987 (additional condition for the higher pensioner and disability premiums) is amended as follows.
2
For paragraph 12(1)(b) substitute —
b
the claimant —
i
is entitled to statutory sick pay,
ii
has been so entitled for a continuous period of not less than 196 days, and
iii
is terminally ill within the meaning of section 30B(4) of the Contributions and Benefits Act,
and for these purposes any two or more periods of entitlement separated by a break of not more than 56 days shall be treated as one continuous period; or
.
3
Paragraph 12(1A) and (5) are omitted.
4
Where a person —
a
is or becomes entitled to an award of income support, and
b
is a person to whom paragraph 7(a) or (b) of Schedule 1B to the Income Support (General) Regulations 1987 (persons incapable of work) applies ,
paragraphs 12(1)(b), 12(1A) and 12(5) of Schedule 2 to the Income Support (General) Regulations 1987 continue to apply to that person as if paragraphs (2) and (3) of this regulation had no effect.
.
Migration Regulations: amendment of Schedules 1, 2, 4 and 5
15
1
Schedules 1, 2, 4 and 5 to the Migration Regulations are amended as follows —
a
in Schedule 1 (modification of enactments: making conversion decisions), renumber paragraphs 28 to 40 as paragraphs 1 to 13 respectively;
b
in Schedule 2 (modification of enactments: after the conversion phase), renumber paragraphs 41 to 66 as paragraphs 1 to 26 respectively;
c
in Schedule 4 (consequential amendments), renumber paragraphs 67 and 68 as paragraphs 1 and 2 respectively; and
d
in Schedule 5 (amendments to legislation relating to housing benefit and council tax benefit), renumber paragraphs 69 to 71 as paragraphs 1 to 3 respectively.
2
In the following provisions of these Regulations and in the Migration Regulations, all references to paragraph numbers in Schedules 1, 2, 4 and 5 to the Migration Regulations are to those Regulations as renumbered by paragraph (1).
Migration Regulations: amendment of Schedule 1
16
1
Schedule 1 to the Migration Regulations (modification of enactments: making conversion decisions) is amended as follows.
2
For paragraph 2 (modification of section 1 of the 2007 Act for the purpose of making conversion decisions), substitute —
2
Section 1 is to be read as if
a
for subsection (2), there were substituted —
2
Subject to the provisions of this Part, a notified person is entitled to an employment and support allowance if the person satisfies the basic conditions and —
a
is entitled to an existing award of incapacity benefit or severe disablement allowance;
b
is entitled to an existing award of income support and satisfies the conditions set out in Part 2 of Schedule 1, unless subsection (2)(c) applies; or
c
is entitled to an existing award of income support by virtue of–
i
regulation 13(2)(b) or (bb) of the Income Support (General) Regulations 1987 (circumstances in which persons in relevant education may be entitled to income support), or
ii
paragraph 10 (disabled students) or 12 (deaf students) of Schedule 1B to those Regulations,
and satisfies the conditions set out in Part 2 of Schedule 1, with the exception of the condition in paragraph 6(1)(g).
; and
b
subsection (3)(e) were omitted.
.
3
After paragraph 10 (disapplication of regulation 30 of the 2008 Regulations) insert —
10A
In the case of a person who is entitled to an existing award of income support and who is a person to whom paragraph (1) of regulation 6 of the Social Security (Habitual Residence) Amendment Regulations 2004 applies, regulation 70 (special cases: supplemental – persons from abroad) is to be read as if–
a
the word “or” at the end of paragraph (4)(k) were omitted; and
b
at the end of paragraph (4)(jj) the word “or” and the following sub-paragraph were added–
l
a person who is entitled to an existing award of income support where that person is a person to whom paragraph (1) of regulation 6 of the Social Security (Habitual Residence) Amendment Regulations 2004 applies
.
.
4
In paragraph 13(a) (modification of regulation 32 of the Social Security (Claims and Payments) Regulations 1987 ) omit “a decision on”.
Migration Regulations: Amendment of Schedule 2
17
1
Schedule 2 to the Migration Regulations (modification of enactments: after the conversion phase) is amended as follows.
2
For paragraph 2(a) (modification of section 1 of the 2007 Act after the conversion phase), substitute —
a
for subsection (2), there were substituted —
2
Subject to the provisions of this Part, a person is entitled to an employment and support allowance if the person satisfies the basic conditions and —
a
in accordance with Part 2 of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010, the effect of the conversion decision that was made in relation to the person was to convert the person’s existing award or awards into a single award of an employment and support allowance;
b
that conversion decision has come into effect; and
c
where–
i
the effect of that conversion decision is that the person is entitled to an income-related allowance, or
ii
the effect of that conversion decision is that the person is entitled to a contributory allowance and the person subsequently becomes entitled to an income-related allowance,
the person also satisfies the conditions set out in Part 2 of Schedule 1 (conditions relating to financial position), except for the condition in paragraph 6(1)(g) in the case of a person who, before that conversion decision was made, had been entitled to an existing award of income support by virtue of regulation 13(2)(b) or (bb) of the Income Support (General) Regulations 1987 (circumstances in which persons in relevant education may be entitled to income support), or paragraph 10 (disabled students) or 12 (deaf students) of Schedule 1B to those Regulations.
; and
.
3
After paragraph 4, insert —
4A
Schedule 1 to the 2007 Act (employment and support allowance: additional conditions) is to be read as if, in paragraph 6, after sub-paragraph (1), there were inserted —
1A
Paragraphs (1B) and (1C) apply where any person (“P”) is entitled by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations ”) to an employment and support allowance which is attributable to an income-related allowance.
1B
In determining for the purposes of paragraph 6(1)(a) whether P’s income exceeds the applicable amount, the amount of any transitional addition to which P is entitled under the 2010 Regulations shall be disregarded.
1C
Where —
a
P ceases to satisfy the condition set out in sub-paragraph (1)(a); but
b
otherwise remains entitled to an amount by way of a transitional addition under the 2010 Regulations,
the condition set out in sub-paragraph (1)(a) shall be treated as satisfied in P’s case and the amount of income-related allowance to which P is entitled shall be the amount of the transitional addition.
.
4
After paragraph 6, insert —
Income Tax (Earnings and Pensions) Act 2003
6A
The Income Tax (Earnings and Pensions) Act 2003 is to be read as if —
a
in section 660(1) (taxable benefits: UK benefits), in Table A–
i
in the first column, after the entry for “Contributory employment and support allowance”, there were inserted a new entry “Contributory employment and support allowance (including any transitional addition to which a person is entitled in connection with that award)”,
ii
in the second column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “WRA 2007”,
iii
in the third column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “Section 1(2) (as modified and applied by the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”))”, and
iv
under the text inserted in the second and third columns by sub-paragraphs (ii) and (iii), there were inserted “Any provision made for Northern Ireland which corresponds to section 1(2) of WRA 2007 (as modified and applied by any provision made for Northern Ireland which corresponds to those contained in the 2010 Regulations)”;
b
in section 661(1) (taxable social security income), after “contributory employment and support allowance” there were inserted “contributory employment and support allowance (including any transitional addition to which a person is entitled in connection with that award),”; and
c
in section 677(1) (UK social security benefits wholly exempt from tax), in Table B–
i
in the first column, after the entry for “Income-related employment and support allowance”, there were inserted a new entry “Income-related employment and support allowance (including any transitional addition to which a person is entitled in connection with that award)”,
ii
in the second column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “WRA 2007”,
iii
in the third column, corresponding to the entry inserted by sub-paragraph (i), there were inserted “Section 1(2) (as modified and applied by the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”))”, and
iv
under the text inserted in the second and third columns by sub-paragraphs (ii) and (iii), there were inserted “Any provision made for Northern Ireland which corresponds to section 1(2) of WRA 2007 (as modified and applied by any provision made for Northern Ireland which corresponds to those contained in the 2010 Regulations)”.
.
5
In paragraph 11 (modification of regulation 45 of the 2008 Regulations: exempt work), the definition of “specified work” in regulation 45 as modified by that paragraph is amended as follows —
a
after sub-paragraph (a) insert “or”; and
b
omit sub-paragraph (c) (and the preceding “or”).
6
Paragraph 15, which modifies regulation 147A of the 2008 Regulations (claimants appealing against a conversion decision) in relation to a person appealing a conversion decision, is amended as follows.
7
After paragraph (1) of the modified regulation 147A, insert —
1A
A person to whom this regulation applies who has made and is pursuing an appeal against a conversion decision in respect of an existing award of incapacity benefit or severe disablement allowance shall be treated as having satisfied the conditions in Part 1 of Schedule 1 to the Act (contributory allowance: conditions relating to national insurance).
.
8
In paragraph 17 (modification of the Social Security (Claims and Payments) Regulations 1987) for “58 to 61” substitute “18 to 22”.
9
Paragraph 18 (modification of regulation 3 of the Social Security (Claims and Payments) Regulations 1987) is amended as follows —
a
in sub-paragraph (a)–
i
omit “; or” where it first occurs, and
ii
for the inserted sub-paragraphs (iii) and (iv), substitute–
k
the beneficiary–
i
has made and is pursuing an appeal against a conversion decision made by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 which embodies a determination that the beneficiary does not have limited capability for work; or
ii
was entitled to an employment and support allowance by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 and has made and is pursuing an appeal against a later decision which embodies a determination that the beneficiary does not have limited capability for work;
; and
b
in sub-paragraph (b)–
i
for “(j)” substitute “(k)”, and
ii
for “(k)” substitute “(l)”.
10
In paragraph 21(b)(ii) (modification of Schedule 9 to the Social Security (Claims and Payments) Regulations 1987) for “52 and 53” substitute “12 and 13”.
11
After paragraph 22 (modification of the Social Security (Claims and Payments) Regulations 1987) insert —
Community Charges (Deductions from Income Support) (Scotland) Regulations 1989
22A
Regulation 1 of the Community Charges (Deductions from Income Support) (Scotland) Regulations 1989 (citation, commencement and interpretation) is to be read as if, after paragraph (2), there were inserted —
2A
In the application of these Regulations to a debtor whose entitlement to an employment and support allowance is by virtue of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), any reference to an employment and support allowance includes any transitional addition to which the debtor is entitled under those Regulations.
2B
Where a debtor’s award of income support is subject to conversion under the 2010 Regulations and —
a
immediately before the effective date of the conversion decision made in relation to the debtor, any deduction is being made under these Regulations from sums payable to the debtor by way of income support; and
b
with effect from that date, the award of income support is converted into an award of an employment and support allowance under the 2010 Regulations,
any deduction falling within sub-paragraph (a) shall have effect as a deduction from the employment and support allowance to which the debtor is entitled.
.
.
12
After paragraph 25 (modification of the Council Tax (Deductions from Income Support) Regulations 1999) insert —
Social Security and Child Support (Decisions and Appeals) Regulations 1999
25A
1
Regulation 3 of the Social Security and Child Support (Decisions and Appeals) Regulations 1999 (revision of decisions) is to be read as if —
a
in the case of a revision of a decision to award jobseeker’s allowance made following the reinstatement of an existing award in accordance with regulation 15(5) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010 (“the 2010 Regulations”), the words “within one month of the date of notification of the original decision” in paragraph (1)(a) were omitted;
b
in the case of a conversion decision where there has been a change of circumstances to which regulation 12(4) of the 2010 Regulations (calculation of transitional addition) applies, paragraph (9)(a) were omitted; and
c
in paragraph (9)(a), for “in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations” there were substituted, “in the cases of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or a conversion decision within the meaning of regulation 5(2)(a) of the 2010 Regulations”.
2
Regulation 6(2)(a)(i) of those Regulations (supersession of decisions) is to be read as if for “in the case of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations” there were substituted “in the cases of an advance award under regulation 13, 13A or 13C of the Claims and Payments Regulations or regulation 146 of the Employment and Support Allowance Regulations or a conversion decision within the meaning of regulation 5(2)(a) of the 2010 Regulations”.
.
Migration Regulations: amendment of Schedule 3
18
1
Schedule 3 to the Migration Regulations (list of regulations that apply after the conversion phase) is amended as follows.
2
After “The Social Security Benefits (Maintenance Payments and Consequential Amendments) Regulations 1996” insert —
The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996
.
Migration Regulations: amendment of Schedule 4
19
1
Schedule 4 to the Migration Regulations (consequential amendments) is amended as follows.
2
After paragraph 1 insert —
The Jobseeker’s Allowance Regulations 1996
1A
1
In regulation 55(4) of the Jobseeker’s Allowance Regulations 1996 (short periods of sickness), for the words after “allowance”, where it appears for the first time, to the end of that paragraph, substitute “or 8 weeks of the person’s entitlement to statutory sick pay.”.
2
In regulation 55A(1) of those Regulations (periods of sickness and persons receiving treatment outside Great Britain), omit “incapacity benefit,” and “, severe disablement allowance or income support”.
3
In paragraph 20H of Schedule 1 to those Regulations (additional conditions for higher pensioner and disability premium) omit sub-paragraph (2).
.
3
In the heading to paragraph 2, for “2005” substitute “2008”.
Amendment of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001
20
In regulation 7(2)(q)(ii) of the Housing Benefit and Council Tax Benefit (Decisions and Appeals) Regulations 2001 (decisions superseding earlier decisions), for “the claimant is appealing a conversion decision” substitute “the claimant or the claimant’s partner is appealing a conversion decision”.
2008 Regulations: amendment of regulation 148
21
1
Regulation 148 of the 2008 Regulations (work or training beneficiaries) is amended as follows.
2
In paragraph (1) —
a
for sub-paragraph (a), substitute–
a
had limited capability for work —
i
for more than 13 weeks in the most recent past period of limited capability for work; or
ii
for 13 weeks or less in the most recent past period of limited capability for work where the claimant became entitled to an award of an employment and support allowance by virtue of a conversion decision which took effect from the commencement of the most recent past period of limited capability for work;
; and
b
for sub-paragraph (c), substitute–
c
became engaged in work or training within one month of so ceasing to be entitled.
.
3
In paragraph (3), after the definition of “allowance or advantage”, insert —
“conversion decision” has the meaning given in regulation 5(2)(a) of the Employment and Support Allowance (Transitional Provisions, Housing Benefit and Council Tax Benefit) (Existing Awards) (No. 2) Regulations 2010;
.
2008 Regulations: amendment of regulation 149
22
1
Subject to paragraph (4), regulation 149 of the 2008 Regulations (linking rules-limited capability for work) is amended as follows.
2
For paragraph (1), substitute —
1
Where the circumstances in paragraph (2) apply, a work or training beneficiary is to be treated as having limited capability for work from the first day within the linking term in respect of which that beneficiary claims an employment and support allowance.
.
3
In paragraph (2)(b), for “in the most recent past period of limited capability for work, it had been determined that the work or training beneficiary had limited capability for work” substitute “it had been determined that the work or training beneficiary had limited capability for work in the most recent past period of limited capability for work or where that determination was embodied in a conversion decision”.
4
Paragraphs (2) and (3) apply only in relation to the following cases —
a
a claim for an employment and support allowance made on or after 1st November 2010, whether or not the claim is in respect of a period commencing before that date; and
b
a claim for an advance award under regulation 13 of the Social Security (Claims and Payments) Regulations 1987–
i
made before 1st November 2010, and
ii
in respect of a period beginning on or after that date.
2008 Regulations: amendment of regulation 150
23
1
Subject to paragraph (3), regulation 150 of the 2008 Regulations (linking rules-limited capability for work-related activity) is amended as follows.
2
For regulation 150, substitute —
Linking rules – limited capability for work-related activity
150
Where a work or training beneficiary was a member of the support group when the most recent past period of limited capability for work came to an end, that work or training beneficiary is to be treated as having limited capability for work-related activity from the first day within the linking term in respect of which that beneficiary claims an employment and support allowance.
.
3
Paragraph (2) applies only in relation to the following cases —
a
a claim for an employment and support allowance made on or after 1st November 2010, whether or not the claim is in respect of a period commencing before that date; and
b
a claim for an advance award under regulation 13 of the Social Security (Claims and Payments) Regulations 1987–
i
made before 1st November 2010, and
ii
in respect of a period beginning on or after that date.
Signed by authority of the Secretary of State for Work and Pensions.
Chris Grayling
Minister of State,
Department for Work and Pensions
4th October 2010