text:
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Social Security (Miscellaneous Amendments) Regulations 2009 and come into force as follows.
2
Subject to paragraphs (3) to (5), these Regulations come into force on 6th April 2009.
3
Regulations 1, 3, 8(2)(b), (10)(a) and (b) and 9(8) come into force on 1st April 2009.
4
Regulations 2(6) and (14)(a), 4(6) and (13)(a), 5(2), (3) and (5), 6(5) and (13)(a), 7(4), (5), (7)(b) and (8), 8(5) and (13)(a), 9(4), (5) and (9) and 10(4)(b) and (10)(a) come into force, in so far as they relate to a particular claimant, on the first day of the first benefit week to commence for that claimant on or after 6th April 2009.
5
Regulations 6(2)(b), (10)(a) and (b) and 7(7)(a) come into force immediately after articles 19 and 20 of the Social Security Benefits Up-rating Order 2009 comes into force, and —
a
in relation to a case where rent is payable at intervals of a week or any multiple of a week, on 6th April 2009, or
b
in relation to any other case, on 1st April 2009.
6
In this regulation “benefit week” has the same meaning as in —
a
regulation 2(1) of the Income Support (General) Regulations 1987 , so far as it relates to regulation 2(6) and (14)(a);
b
regulation 1(3) of the Jobseeker’s Allowance Regulations 1996 , so far as it relates to regulation 4(6) and (13)(a);
c
regulation 1(2) of the State Pension Credit Regulations 2002 , so far as it relates to regulation 5(2), (3) and (5);
d
regulation 2(1) of the Housing Benefit Regulations 2006 , so far as it relates to regulation 6(5) and (13)(a);
e
regulation 2(1) of the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 , so far as it relates to regulation 7(4), (5), (7)(b) and (8);
f
regulation 2(1) of the Council Tax Benefit Regulations 2006 , so far as it relates to regulation 8(5) and (13)(a);
g
regulation 2(1) of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006 , so far as it relates to regulation 9(4), (5) and (9);
h
regulation 2(1) of the Employment and Support Allowance Regulations 2008 , so far as it relates to regulation 10(4)(b) and (10)(a).
Amendment of the Income Support (General) Regulations 1987
2
1
The Income Support (General) Regulations 1987 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);
;
b
omit the definition of “starting rate” .
3
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) of the definition of “training allowance” ,
b
Schedule 1B (prescribed categories of person), in paragraph 28 ,
c
Schedule 2 (applicable amounts), in paragraph 7(1)(b) , and
d
Schedule 3 (housing costs), in paragraph 3(13)(d),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 4ZA (prescribed categories of person), in paragraph (3)(b) after “12,” insert “15A,”.
5
Omit regulation 21(1A) (special cases).
6
For regulation 30(2A) (calculation of earnings of self-employed earners) substitute —
2A
This paragraph applies to —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,
where the claimant is the first owner of the copyright, design, patent or trade mark, or an original contributor to the book or work concerned.
.
7
In regulation 39(1) (deduction of tax and contributions for self-employed earners) and in regulation 42(8)(a) (notional income) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
8
In regulation 39D (deduction in respect for participants in the self-employed route) —
a
in paragraph (1)(c) omit “the starting rate of tax or, as the case may be, the starting rate and”;
b
in paragraph (2) for “starting” substitute “basic”.
9
In regulation 61(1) (interpretation) —
a
for the definition of “contribution” substitute —
“contribution” means —
any contribution in respect of the income of a student or any person which the Secretary of State, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; or
any sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority consider that it is reasonable for the following persons to contribute towards the holder’s expenses —
the holder of the allowance or bursary;
the holder’s parents;
the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he or she were the spouse or civil partner of that parent; or
the holder’s spouse or civil partner;
;
b
in paragraph (c) of the definition of “grant income” for “or 12 of Schedule 1B applies (lone parent or disabled student)” substitute “, 12 or 15A of Schedule 1B applies (lone parent, disabled student or persons in education)”.
10
In regulation 62(2) (calculation of grant income), after sub-paragraph (j) add —
k
of higher education bursary for care leavers made under Part III of the Children Act 1989 .
.
11
In regulation 66A(4)(a)(ii) (treatment of student loans) for “or 12 of Schedule 1B applies (lone parent or disabled student)” substitute “, 12 or 15A of Schedule 1B applies (lone parent, disabled student or persons in education)”.
12
In Schedule 1B (prescribed categories of person) —
a
in paragraph 3(a) before “ill” insert “temporarily” ;
b
after paragraph 15 insert —
Circumstances in which a person in education will be treated as not being a member of a household
15A
1
A person is subject to this regulation if they fulfil the conditions in sub-paragraphs to (5).
2
The first condition is that he is under the age of 21.
3
The second condition is that he is undertaking a course of full-time, non-advanced education.
4
The third condition is that he was accepted to attend, enrolled on, or began the course before attaining the age of 19.
5
The fourth condition is that —
a
he has no parent;
b
of necessity he has to live away from his parents because —
i
he is estranged from them,
ii
he is in physical or moral danger, or
iii
there is a serious risk to his physical or mental health; or
c
he is living away from his parents where they are unable financially to support him and are —
i
chronically sick or mentally or physically disabled,
ii
detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court, or
iii
prohibited from entering or re-entering Great Britain.
6
In this paragraph —
“chronically sick or mentally or physically disabled” has the meaning given in regulation 13(3)(b);
“course of full-time, non-advanced education” means education of a kind referred to in regulation 3(2)(a) or (b) of the Child Benefit (General) Regulations 2006 ;
“parent” includes a person acting in place of a parent which —
for the purposes of sub-paragraph (5)(a) and (b) has the meaning given in regulation 13(3)(a)(i), and
for the purposes of sub-paragraph (5)(c), has the meaning given in regulation 13(3)(a)(ii).
.
13
In Schedule 9 (sums to be disregarded in the calculation of income other than earnings), in paragraph 58 omit “under the Community Care (Direct Payments) Act 1996 or”.
14
In Schedule 10 (capital to be disregarded) —
a
after paragraph 39 insert —
39A
Any payment made under Part 8A of the Contributions and Benefits Act (entitlement to health in pregnancy grant) .
;
b
in paragraph 67 omit “the Community Care (Direct Payments) Act 1996,”.
Amendment of the Social Security Claims and Payments Regulations 1987
3
In paragraph 7 of Schedule 9A to the Social Security Claims and Payments Regulations 1987 (deductions of mortgage interest from benefit and payment to qualifying lenders), for “£0.47” substitute “£0.55”.
Amendment of the Jobseeker’s Allowance Regulations 1996
4
1
The Jobseeker’s Allowance Regulations 1996 are amended as follows.
2
In regulation 1(3) (citation, commencement and interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act).
;
b
omit the definition of “starting rate” .
3
In —
a
regulation 1(3) (citation, commencement and interpretation), in paragraphs (a) and (c) of the definition of “training allowance” ,
b
regulation 11(3) (part-time students),
c
regulation 19(1)(r)(ii)(aa) (circumstances in which a person is to be treated as actively seeking employment),
d
regulation 57(1) (interpretation of Part IV), in the definition of “training” ,
e
regulation 75(1)(b)(i) (interpretation),
f
regulation 170(2) (persons in receipt of a training allowance),
g
Schedule A1 (categories of members of a joint-claim couple who are not required to satisfy the conditions in section 1(2B)(b)), in paragraph 16 (young persons in training) ,
h
Schedule 1 (applicable amounts), in paragraphs 8(1)(b) and 20D(1)(b) , and
i
Schedule 2 (housing costs), in paragraph 3(13)(d),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 51(2) (remunerative work) omit sub-paragraph (c).
5
Omit regulation 85(2) (special cases).
6
For regulation 95(2A) (calculation of earnings of self-employed earners) substitute —
2A
This paragraph applies to —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,
where the claimant is the first owner of the copyright, design, patent or trade mark, or an original contributor to the book or work concerned.
.
7
In regulation 102(1) (deduction of tax and contributions for self-employed earners) and regulation 105(15)(a) (notional income) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
8
In regulation 102D (deduction in respect of tax for participants in the self-employed route) —
a
in paragraph (1)(c) omit “the starting rate of tax or, as the case may be, the starting rate and”;
b
in paragraph (2) for “starting” substitute “basic”.
9
In regulation 130 (interpretation) for the definition of “contribution” substitute —
“contribution” means —
any contribution in respect of the income of a student or any person which the Secretary of State, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; or
any sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority consider that it is reasonable for the following persons to contribute towards the holder’s expenses —
the holder of the allowance or bursary;
the holder’s parents;
the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he or she were the spouse or civil partner of that parent; or
the holder’s spouse or civil partner;
.
10
In regulation 131(2) (calculation of grant income), after sub-paragraph (i) add —
j
of higher education bursary for care leavers made under Part III of the Children Act 1989.
.
11
In regulation 163(4)(c) (calculation of earnings) for “starting” substitute “basic”.
12
In Schedule 7 (sums to be disregarded in the calculation of income other than earnings), in paragraph 56 omit “under the Community Care (Direct Payments) Act 1996 or”.
13
In Schedule 8 (capital to be disregarded) —
a
after paragraph 37 insert —
37A
Any payment made under Part 8A of the Benefits Act (entitlement to health in pregnancy grant).
;
b
in paragraph 60 omit “the Community Care (Direct Payments) Act 1996,”.
Amendment of the State Pension Credit Regulations 2002
5
1
The State Pension Credit Regulations 2002 are amended as follows.
2
In regulation 15(5) (income for the purposes of the Act) —
a
for sub-paragraph (f) substitute —
f
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for sub-paragraph (g) substitute —
g
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
.
3
In regulation 17 (calculation of weekly income) —
a
for paragraph (5)(a) substitute —
a
royalties or other sums received as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for paragraph (5)(b) substitute —
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
;
c
for paragraph (9)(b) substitute —
b
any amount to which paragraph (5) applies where the claimant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work referred to in paragraph (5)(b).
.
4
In —
a
Schedule II (housing costs), in paragraph 4(13)(b), and
b
Schedule V (income from capital), in paragraph 15(8)(a) and (c) in the definition of “training allowance”,
before “Scottish Enterprise” insert “Skills Development Scotland,”.
5
In Schedule V (income from capital) after paragraph 23A insert —
23B
Any payment made under Part 8A of the 1992 Act (entitlement to health in pregnancy grant).
.
Amendment of the Housing Benefit Regulations 2006
6
1
The Housing Benefit Regulations 2006 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);
;
b
in the definition of “main phase employment and support allowance” , after “Act” insert “except in Part 1 of Schedule 3”;
c
omit the definition of “starting rate” .
3
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) of the definition of “training allowance” ,
b
regulation 7(18) (circumstances in which a person is or is not to be treated as occupying a dwelling as his home), in the definition of “training course”, and
c
Schedule 3 (applicable amounts), in paragraph 7(1)(b),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 36(6)(a) (calculation of net earnings of employed earners), regulation 39(1) (deduction of tax and contributions of self-employed earners) and regulation 42(12)(a) (notional income) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
5
For regulation 37(3) (earnings of self-employed earners) substitute —
3
This paragraph applies to —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,
where the claimant is the first owner of the copyright, design, patent or trade mark, or an original contributor to the book or work concerned.
.
6
In regulation 53(1) (interpretation) —
a
for the definition of “contribution” substitute —
“contribution” means —
any contribution in respect of the income of a student or any person which the Secretary of State, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; or
any sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority consider that it is reasonable for the following persons to contribute towards the holder’s expenses —
the holder of the allowance or bursary;
the holder’s parents;
the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he or she were the spouse or civil partner of that parent; or
the holder’s spouse or civil partner;
;
b
in the definition of “period of study” —
i
for paragraph (b)(i) substitute —
i
the day before the start of the next year of the course in a case where the student’s grant or loan is assessed at a rate appropriate to his studying throughout the year or, if he does not have a grant or loan, where a loan would have been assessed at such a rate had he had one; or
;
ii
in paragraph (b)(ii) for “recognised” substitute “normal”.
7
In regulation 56 (full-time students to be treated as not liable to make payments in respect of a dwelling) —
a
in paragraph (2)(h)(i) for “19” substitute “21”;
b
after paragraph (2) insert —
2A
For the purposes of paragraph (2)(h)(i) the student must have begun the course before attaining the age of 19.
.
8
In regulation 59(2) (calculation of grant income), after sub-paragraph (h) add —
i
of higher education bursary for care leavers made under Part III of the Children Act 1989.
.
9
In regulation 63 (other amounts to be disregarded) omit paragraph (2) .
10
In Schedule 3 (applicable amounts) —
a
after paragraph 1 insert —
1A
For the purposes of paragraph 1 a claimant is entitled to main phase employment and support allowance if he personally satisfies paragraph 21 of this Schedule.
;
b
in paragraph 3(4) —
i
in paragraph (c) for “continued to be entitled to one or other of those benefits” substitute “continuously, since that date, been entitled to income support, an income-based jobseeker’s allowance or an income-related employment and support allowance or a combination of those benefits”;
ii
in paragraph (d) for “either of those benefits” substitute “income support, an income-based jobseeker’s allowance or an income-related employment and support allowance”;
iii
in paragraph (e) after “12” insert “or a component under paragraph 23 or 24”;
c
in paragraph 14(2)(b) for “entitled to or in receipt of” substitute “entitled to and in receipt of”.
11
In Schedule 4 (sums to be disregarded in the calculation of earnings), after paragraph 2 insert —
2A
In the case of a claimant who has been engaged in remunerative work or part-time employment as a self-employed earner or, had the employment been in Great Britain would have been so engaged and who has ceased to be so employed, from the date of the cessation of his employment any earnings derived from that employment except earnings to which regulation 37(3) and (4) (earnings of self-employed earners) apply.
.
12
In Schedule 5 (sums to be disregarded in the calculation of income other than earnings), in paragraph 57 omit “under the Community Care (Direct Payments) Act 1996 or”.
13
In Schedule 6 (capital to be disregarded) —
a
after paragraph 41 insert —
41A
Any payment made under Part 8A of the Act (entitlement to health in pregnancy grant).
;
b
in paragraph 58 omit “the Community Care (Direct Payments) Act 1996, or”.
Amendments to the Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006
7
1
The Housing Benefit (Persons who have attained the qualifying age for state pension credits) Regulations 2006 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act);
;
b
omit the definition of “starting rate” .
3
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) of the definition of “training allowance” ,
b
regulation 7(18) (circumstances in which a person is or is not to be treated as occupying a dwelling as his home), in the definition of “training course”, and
c
Schedule 3 (applicable amounts), in paragraph 5(1)(b),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 29(1) (meaning of “income”) —
a
for sub-paragraph (q) substitute —
q
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for sub-paragraph (r) substitute —
r
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
.
5
In regulation 33 (calculation of weekly income) —
a
for paragraph (5)(a) substitute —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for paragraph (5)(b) substitute —
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982; or
;
c
for paragraph (8)(b) substitute —
b
any amount to which paragraph (5) applies where the claimant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work referred to in paragraph (5)(b).
;
d
after paragraph (8) insert —
8A
For the purpose of paragraph (8)(b), and for that purpose only, the amounts specified in paragraph (5) shall be treated as though they were earnings.
.
6
In regulation 36(5)(a) (calculation of net earnings of employed earners) and regulation 40(1) (deduction of tax and contributions of self-employed earners) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
7
In Schedule 4 (sums disregarded from claimant’s earnings) —
a
at the end of paragraph 5(1)(c) insert “or” and the following sub-paragraph —
d
has, or is treated as having, limited capability for work within the meaning of section 1(4) of the Welfare Reform Act or limited capability for work-related activity within the meaning of section 2(5) of that Act and either —
i
the assessment phase as defined in section 24(2) of the Welfare Reform Act has ended; or
ii
regulation 7 of the Employment and Support Allowance Regulations (circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arises does not apply) applies.
;
b
in paragraph 8 after “copyright,” insert “design,”.
8
In Schedule 6 (capital to be disregarded), after paragraph 26B insert —
26C
Any payment made under Part 8A of the Act (entitlement to health in pregnancy grant).
.
Amendment of the Council Tax Benefit Regulations 2006
8
1
The Council Tax Benefit Regulations 2006 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act).
;
b
in the definition of “main phase employment and support allowance” after “Act” insert “except in Part 1 of Schedule 1”;
c
omit the definition of “starting rate” .
3
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) of the definition of “training allowance”, and
b
regulation 8(7) (prescribed persons for the purposes of section 131(3)(b) of the Act),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 26(6)(a) (calculation of net earnings of employed earners), regulation 29(1) (deduction of tax and contributions of self-employed earners) and regulation 32(12)(a) (notional income) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
5
For regulation 27(3) (earnings of self-employed earners) substitute —
3
This paragraph applies to —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,
where the claimant is the first owner of the copyright, design, patent or trade mark, or an original contributor to the book or work concerned.
.
6
In regulation 43(1) (interpretation) —
a
for the definition of “contribution” substitute —
“contribution” means —
any contribution in respect of the income of a student or any person which the Secretary of State, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; or
any sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority consider that it is reasonable for the following persons to contribute towards the holder’s expenses —
the holder of the allowance or bursary;
the holder’s parents;
the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he or she were the spouse or civil partner of that parent; or
the holder’s spouse or civil partner;
;
b
In the definition for “period of study” —
i
for paragraph (b)(i) substitute —
i
the day before the start of the next year of the course in a case where the student’s grant or loan is assessed at a rate appropriate to his studying throughout the year or, if he does not have a grant or loan, where a loan would have been assessed at such a rate had he had one; or
;
ii
in paragraph (b)(ii) for “recognised” substitute “normal”.
7
In regulation 45(3) (students who are excluded from entitlement to council tax benefit) —
a
in sub-paragraph (h)(i) for “19” substitute “21”;
b
after sub-paragraph (i) insert —
3A
For the purposes of paragraph (3)(h)(i) the student must have begun the course before attaining the age of 19.
.
8
In regulation 46(2) (calculation of grant income), after sub-paragraph (h) add —
i
of higher education bursary for care leavers made under Part III of the Children Act 1989.
.
9
In regulation 50 (other amounts to be disregarded) omit paragraph (2).
10
In Schedule 1 (applicable amounts) —
a
after paragraph 1 insert —
1A
In paragraph 1 a claimant is entitled to main phase employment and support allowance if he satisfies paragraph 21 of this Schedule.
;
b
in paragraph 3(4) —
i
in paragraph (c) for “continued to be entitled to one or other of those benefits” substitute “continuously, since that date, been entitled to income support, an income-based jobseeker’s allowance or income-related employment and support allowance or a combination of those benefits”;
ii
in paragraph (d) for “either of those benefits” substitute “income support, an income-based jobseeker’s allowance or an income-related employment and support allowance”;
iii
in paragraph (e) after “12” insert “or a component under paragraph 23 or 24”;
c
in paragraph 7(1)(b) —
i
after “approved” insert “by the Secretary of State”;
ii
after “the 1973 Act or” insert —
by Skills Development Scotland, Scottish Enterprise or Highlands and Islands Enterprise under
;
iii
for “Town” substitute “Towns”;
d
in paragraph 14(2)(b) for “entitled to or in receipt of” substitute “entitled to and in receipt of”.
11
In Schedule 3 (sums to be disregarded in the calculation of earnings), after paragraph 2 insert —
2A
In the case of a claimant who has been engaged in remunerative work or part-time employment as a self-employed earner or, had the employment been in Great Britain would have been so engaged and who has ceased to be so employed, from the date of the cessation of his employment any earnings derived from that employment except earnings to which regulation 27(3) and (4) (earnings of self-employed earners) apply.
.
12
In Schedule 4 (sums to be disregarded in the calculation of income other than earnings) —
a
in paragraph 43 , after “section 13” insert “or”;
b
in paragraph 57 omit “under the Community Care (Direct Payments) Act 1996 or”.
13
In Schedule 5 (capital to be disregarded) —
a
after paragraph 41 insert —
41A
Any payment made under Part 8A of the Act (entitlement to health in pregnancy grant).
;
b
in paragraph 60 omit “the Community Care (Direct Payments) Act 1996, or”.
Amendments to the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006
9
1
The Council Tax Benefit (Persons who have attained the qualifying age for state pension credits) Regulations 2006 are amended as follows.
2
In regulation 2(1) (interpretation) —
a
in the appropriate place insert the following definition —
“basic rate”, where it relates to the rate of tax, has the same meaning as in the Income Tax Act 2007 (see section 989 of that Act).
;
b
omit the definition of “starting rate” .
3
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) in the definition of “training allowance”,
b
regulation 8(7) (prescribed persons for the purposes of section 131(3)(b) of the Act), in the definition of “training course”, and
c
Schedule 1 (applicable amounts), in paragraph 5(1)(b),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
4
In regulation 19(1) (meaning of “income”) —
a
for sub-paragraph (q) substitute —
q
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for sub-paragraph (r) substitute —
r
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
.
5
In regulation 23 (calculation of weekly income) —
a
for paragraph (5)(a) substitute —
a
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark;
;
b
for paragraph (5)(b) substitute —
b
any payment in respect of any —
i
book registered under the Public Lending Right Scheme 1982; or
ii
work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982;
;
c
for paragraph (8)(b) substitute —
b
any amount to which paragraph (5) applies where the claimant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work referred to in paragraph (5)(b).
;
d
after paragraph (8) insert —
8A
For the purposes of paragraph (8)(b), and for that purpose only, the amounts specified in paragraph (5) shall be treated as though they were earnings.
.
6
In regulation 26(5)(a) (calculation of net earnings of employed earners) and regulation 30(1) (deduction of tax and contributions of self-employed earners) —
a
omit “the starting rate or, as the case may be, the starting rate and”;
b
for “starting” substitute “basic”.
7
In Schedule 1 (applicable amounts), in paragraph 6(2)(b)(iii) for “entitled to or in receipt of” substitute “entitled to and in receipt of”.
8
In Schedule 2 (sums disregarded from claimant’s earnings), at the end of paragraph 5(1)(c) insert “or” and the following sub-paragraph —
d
has, or is treated as having, limited capacity for work within the meaning of section 1(4) of the Welfare Reform Act or limited capability for work-related activity within the meaning of section 2(5) of that Act and either —
i
the assessment phase as defined in section 24(2) of the Welfare Reform Act has ended; or
ii
regulation 7 of the Employment and Support Allowance Regulations (circumstances where the condition that the assessment phase has ended before entitlement to the support component or the work-related activity component arising does not apply) applies.
.
9
In Schedule 4 (capital disregards), after paragraph 26A add —
26B
Any payment made under Part 8A of the Act (entitlement to health in pregnancy grant).
.
Amendments to the Employment and Support Allowance Regulations 2008
10
1
The Employment and Support Allowance Regulations 2008 are amended as follows.
2
In —
a
regulation 2(1) (interpretation), in paragraphs (a) and (c) of the definition of “training allowance”,
b
Schedule 4 (amounts), in paragraph 4(1)(b), and
c
Schedule 6 (housing costs), in paragraph 5(13),
before “Scottish Enterprise” insert “Skills Development Scotland,”.
3
In regulation 91(2)(c) (calculation of earnings derived from employed earner’s employment and income other than earnings) for “income-related” substitute “employment and support”.
4
In regulation 92 (calculation of earnings of self-employed earners) for paragraph (2) substitute —
2
a
Where the claimant’s earnings consist of any items to which this paragraph applies those earnings shall be taken into account over a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the earnings by the amount of employment and support allowance which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from the payment under Schedule 7 (earnings to be disregarded) as is appropriate in the claimant’s case;
b
This paragraph applies to —
i
royalties or other sums paid as a consideration for the use of, or the right to use, any copyright, design, patent or trade mark; or
ii
any payment in respect of any book registered under the Public Lending Right Scheme 1982 or work made under any international public lending right scheme that is analogous to the Public Lending Right Scheme 1982,
where the claimant is the first owner of the copyright, design, patent or trademark, or an original contributor to the book or work concerned.
.
5
In regulation 93 (date on which income is treated as paid) —
a
in paragraph (3) —
i
before “Working tax credit” insert “Subject to paragraph (4),”;
ii
omit “or child tax credit”;
iii
at the end of sub-paragraph (a) insert “or”;
iv
at the end of sub-paragraph (b) omit “or;”;
v
omit sub-paragraph (c);
b
after paragraph (3) insert —
4
Where working tax credit is paid under regulation 7D (ceasing to undertake work or working less than 16 hours a week) of the Working Tax Credit (Entitlement and Maximum Rate) Regulations 2002 , it shall be treated as paid on the first day of the benefit week in which that award of tax credit begins; but this paragraph shall only apply until the last day of the last benefit week that coincides with or precedes the last day for which tax credit is awarded under that regulation.
.
6
In regulation 94(1) (calculation of weekly amount of income) for sub-paragraph (b)(iii) substitute —
iii
in a case where that period is a year and the payment is an award of working tax credit, by dividing the payment by the number of days in the year and multiplying the result by 7;
iiia
in a case where that period is a year and the payment is income other than an award of working tax credit, by dividing the amount of the payment by 52;
.
7
In regulation 131(1) (interpretation) for the definition of “contribution” substitute —
“contribution” means —
any contribution in respect of the income of a student or any person which the Secretary of State, the Scottish Ministers or an education authority takes into account in ascertaining the amount of a student’s grant or student loan; or
any sums, which in determining the amount of a student’s allowance or bursary in Scotland under the Education (Scotland) Act 1980, the Scottish Ministers or education authority takes into account being sums which the Scottish Ministers or education authority consider that it is reasonable for the following persons to contribute towards the holder’s expenses —
the holder of the allowance or bursary;
the holder’s parents;
the holder’s parent’s spouse, civil partner or a person ordinarily living with the holder’s parent as if he or she were the spouse or civil partner of that parent; or
the holder’s spouse or civil partner;
.
8
In regulation 132(2) (calculation of grant income), after sub-paragraph (i) add —
j
of higher education bursary for care leavers made under Part III of the Children Act 1989.
.
9
In Schedule 8 (sums to be disregarded in the calculation of income other than earnings), in paragraph 53 omit “under the Community Care (Direct Payments) Act 1996 or”.
10
Schedule 9 (capital to be disregarded) —
a
after paragraph 38 insert —
38A
Any payment made under Part 8A of the Social Security Contributions and Benefits Act 1992 (entitlement to health in pregnancy grant).
;
b
in paragraph 56 omit “the Community Care (Direct Payments) Act 1996,”.
Signed by the authority of the Secretary of State for Work and Pensions
Tony McNulty.
Parliamentary Under Secretary of State
Department for Work and Pensions
9th March 2009


type: legislation

jurisdiction: UK

text:
PART 1
INTRODUCTION
Citation, commencement and extent
1
1
These Regulations may be cited as the Chemicals (Hazard Information and Packaging for Supply) Regulations 2009 and shall come into force on 6th April 2009.
2
These Regulations shall not extend to Northern Ireland.
Interpretation
2
1
In these Regulations —
“the 1974 Act” means the Health and Safety at Work etc. Act 1974;
“aerosol dispenser” means an article which consists of a non-reusable receptacle containing a gas compressed, liquefied or dissolved under pressure, with or without liquid, paste or powder and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state;
“the approved classification and labelling guide” means the guide entitled “Approved Guide to the Classification and Labelling of Dangerous Substances and Dangerous Preparations (Fifth Edition)” approved by the Health and Safety Commission on 16th April 2002 , as revised or re-issued from time to time;
“category of danger” means, in relation to a dangerous substance or dangerous preparation, one of the categories of danger specified in column 1 of Schedule 1;
“the CLP Regulation” means Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC , and amending Regulation (EC) No 1907/2006 , of which articles 6(5), 11(3), 12, 14, 18(3)(b), 23, 25 to 29, 35(2) second and third sub-paragraph and Annexes I to VII are as amended from time to time;
“Community workplace exposure limit” means, in respect of a substance, an exposure limit for that substance established in a Community instrument;
“dangerous preparation” means a preparation which is in one or more of the categories of danger specified in column 1 of Schedule 1;
“dangerous substance” means a substance —
which is listed in Table 3.2 of part 3 of Annex VI of the CLP Regulation; or
which, if it is not so listed, is in one or more of the categories of danger specified in column 1 of Schedule 1;
“EC number” means —
in the case of a dangerous substance that appears in Table 3.2 of part 3 of Annex VI of the CLP Regulation, the EC number specified in that list;
in the case of a dangerous substance that is not included in Table 3.2 of part 3 of Annex VI of the CLP Regulation or for which an EC number is not given in that list, the number for that substance specified in EINECS; or
in the case of a dangerous substance that is not a phase-in substance within the meaning of REACH, the number for that substance if it is listed in ELINCS;
“EEA Agreement” means the Agreement on the European Economic Area signed at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993 and adopted as respects the United Kingdom by the European Economic Area Act 1993 ;
“EEA State” means a state which is a contracting party to the EEA Agreement;
“EINECS” means the European Inventory of Existing Commercial Chemical Substances ;
“ELINCS” means the European List of Notified Chemical Substances ;
“enforcing authority” shall be construed in accordance with regulation 14;
“the Executive” means the Health and Safety Executive;
“indication of danger” means, in relation to a dangerous substance or dangerous preparation, one or more of the indications of danger referred to in column 1 of Schedule 2 and —
in the case of a dangerous substance listed in Table 3.2 of part 3 of Annex VI of the CLP Regulation, it is one or more of the indications of danger specified for that substance by a symbol-letter in that list;
in the case of any other dangerous substance or a dangerous preparation, it is one or more indications of danger determined in accordance with the classification of that substance or preparation in accordance with regulation 4 and the approved classification and labelling guide;
“plant protection product” has the same meaning as it has in regulation 2(1) of the Plant Protection Products Regulations 2005 and regulation 2(1) of the Plant Protection Products (Scotland) Regulations 2005 ;
“the Plant Protection Products Regulations” means the Plant Protection Products Regulations 2005 and the Plant Protection Products (Scotland) Regulations 2005;
“preparation” means a mixture or solution composed of two or more substances;
“radioactive substance” means a substance which contains one or more radionuclides whose activity or concentration cannot be disregarded as far as radiation protection is concerned;
“receptacle” means a container together with any material, wrapping and component, including any closure or fastener, associated with the container which enables the container to perform its containment function;
“REACH” means Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals;
“risk phrase” means a risk phrase listed in Annex III of Council Directive 67/548/EEC ;
“safety phrase” means a safety phrase listed in Annex IV of Council Directive 67/548/EEC ;
“substance” means a chemical element and its compounds in the natural state or obtained by any production process, including any additive necessary to preserve the stability of the product and any impurity deriving from the process used, but excluding any solvent which may be separated without affecting the stability of the substance or changing its composition;
“supply” in relation to a substance or preparation means making that substance or preparation available to another person and includes importation of the substance or preparation into Great Britain, and
“supplier” shall be construed accordingly.
2
In these Regulations,
“package” means —
subject to paragraph (3), the package in which a dangerous substance, dangerous preparation or preparation specified in regulation 11(3) is supplied, including the receptacle containing the dangerous substance or preparation in question; or
a pallet or other device which enables more than one receptacle to be handled as a unit,
but does not include a container used to transport the dangerous substance or preparation unless that container is retained by the person to whom the dangerous substance or preparation is supplied for the purpose of storing that dangerous substance or preparation, and related expressions shall be construed accordingly.
3
In the case of supply by way of retail sale, a package does not include any paper or plastic bag or other form of outer wrapping in which the package is placed when it is presented to the purchaser.
4
In these Regulations —
a
where reference is made to a quantity of a dangerous substance or dangerous preparation expressed in litres, that reference shall mean —
i
in the case of a liquid, the volume in litres of that liquid;
ii
in the case of a compressed gas, the volume in litres of the receptacle containing that gas; and
iii
in the case of a compressed gas dissolved in a solvent, liquefied gas or solid, the same number of kilograms of that solvent, gas or solid; and
b
for the purposes of aggregation, one kilogram of a solid shall be deemed to be equivalent to one litre of liquid or gas.
5
In these Regulations —
a
a risk phrase may be designated by the letter
“R” followed by a distinguishing number or combination of numbers; and
a safety phrase may be designated by the letter “S” followed by a distinguishing number or combination of numbers.
Application
3
1
Subject to paragraphs (2) to (6), these Regulations shall apply to any dangerous substance or dangerous preparation.
2
These Regulations shall not apply to a substance or preparation which is —
a
intended for use as a medicinal product within the meaning of section 130 of the Medicines Act 1968 ;
b
intended for use as a veterinary medical product within the meaning of regulation 2(1) of the Veterinary Medicines Regulations 2008 ;
c
intended for use as an investigational medical product within the meaning of the Medicines for Human Use (Clinical Trials) Regulations 2004 ;
d
specified in an order made under section 104 or 105 of the Medicines Act 1968 which is for the time being in force and which directs that specified provisions of that Act shall have effect in relation to medicinal products within the meaning of that Act;
e
a controlled drug within the meaning of the Misuse of Drugs Act 1971 except that these Regulations shall apply to drugs which are excepted from section 4(1)(b) of that Act (which makes it unlawful to supply a controlled drug) by Regulations made under section 7(1)(a) of that Act;
f
a cosmetic product within the meaning of the Cosmetic Products (Safety) Regulations 2008 ;
g
in the form of waste to which the Waste Management Licensing Regulations 1994 , the Special Waste Regulations 1996 , the Hazardous Waste (Wales) Regulations 2005 or the Hazardous Waste (England and Wales) Regulations 2005 applies;
h
intended for use as food within the meaning of section 1 of the Food Safety Act 1990 ;
i
intended for use as feeding stuff within the meaning of section 66(1) of the Agriculture Act 1970 ;
j
a radioactive substance or a preparation containing radioactive substances; or
k
a medical device within the meaning of the Medical Devices Regulations 2002 which is invasive or used in direct contact with the human body,
in the finished state, intended for the final user.
3
These Regulations shall not apply to —
a
a substance or preparation which is a sample taken by an authority responsible for the enforcement of any requirement imposed by or under any enactment;
b
a substance or preparation which is under customs control; or
c
subject to Regulation (EC) No 689/2008 of the European Parliament and of the Council of 17 June 2008 concerning the export and import of dangerous chemicals, of which Annexes I and V are as amended from time to time, a substance or a preparation which is intended for export to a country which is not an EEA State.
4
Regulations 6 to 11 shall only apply to substances and preparations which are supplied in packages.
5
Regulations 6 to 11 shall not apply to munitions and explosives which are supplied with a view to obtaining an explosive or pyrotechnic effect.
6
These Regulations shall not apply to the carriage of substances or preparations by rail, road, inland waterway, sea or air.
PART 2
GENERAL REQUIREMENTS
Classification of dangerous substances and dangerous preparations
4
1
No person shall supply a dangerous substance or dangerous preparation unless it has been classified in accordance with paragraphs (2) to (7).
2
The classification of a dangerous substance which is listed in Table 3.2 of part 3 of Annex VI of the CLP Regulation shall be the classification for that substance specified in that list.
3
A dangerous substance which —
a
is not a phase-in substance within the meaning of REACH; and
b
is not listed in Table 3.2 of part 3 of Annex VI of the CLP Regulation; and
c
has been registered in accordance with Title II of REACH,
shall be classified in conformity with that registration.
4
Subject to paragraph (5), a dangerous substance which is not classified in accordance with paragraph (2) or (3) shall be classified —
a
by ascertaining which of the properties specified in Column 2 of Schedule 1 applies to the dangerous substance and by placing the dangerous substance in one or more of the categories of danger specified in the corresponding entry in Column 1 of that Schedule;
b
by assigning to the dangerous substance the appropriate risk phrases by the use of the criteria set out in the approved classification and labelling guide; and
c
where it is proposed to classify a dangerous substance in the category of danger carcinogenic, mutagenic or toxic for reproduction, by an assessment of the evidence by a competent person.
5
Before a dangerous substance is classified in accordance with paragraph (4), persons carrying out the classification shall make themselves aware of all relevant and accessible data which may exist in relation to the dangerous substance in question.
6
Where a manufacturer, distributor or importer has classified a substance, in accordance with the provisions of paragraph (4), as a dangerous substance in the category of danger carcinogenic, mutagenic or toxic for reproduction, that person shall send to the Executive as soon as possible a document —
a
summarising the information on which the classification was based; and
b
including all relevant references and unpublished data,
unless that document has already been sent to the relevant authority in another EEA State in which the dangerous substance has been supplied.
7
A dangerous preparation shall be classified in accordance with Schedule 3 and, where applicable, by use of the criteria contained in the approved classification and labelling guide.
Safety data sheets for substances and preparations
5
The requirements for safety data sheets in Article 31 of REACH shall apply as set out in that Regulation.
Packaging of dangerous substances, dangerous preparations and certain specified preparations
6
1
No person shall supply a dangerous substance or a dangerous preparation or a preparation specified in regulation 11(3) unless its packaging satisfies the following requirements —
a
subject to paragraph (2), the receptacle containing the dangerous substance or dangerous preparation is designed and constructed so that its contents cannot escape;
b
the materials constituting the packaging and fastenings are not susceptible to adverse attack by the contents or liable to form dangerous compounds with the contents;
c
the packaging and fastenings are strong and solid throughout to ensure that they will not loosen and will meet the normal stresses and strains of handling; and
d
any replaceable fastening fitted to the receptacle containing the dangerous substance or dangerous preparation is designed so that the receptacle can be repeatedly refastened without the contents of the receptacle escaping.
2
Paragraph (1)(a) shall not apply where a special safety device is fitted to the receptacle.
3
Packaging and fastenings shall be deemed to comply with the requirements of paragraphs (1)(a) to (c) if they comply with the relevant requirements of —
a
the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2007 ;
b
the Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997 ; or
c
the Air Navigation (Dangerous Goods) Regulations 2002 .
Labelling of dangerous substances and dangerous preparations
7
1
Subject to paragraphs (5) to (9) and regulation 8, no person shall supply a dangerous substance or dangerous preparation unless the particulars specified in paragraph (2) relating to a dangerous substance or paragraph (3) relating to a dangerous preparation are clearly shown in accordance with the requirements of regulation 10 —
a
on the receptacle containing the dangerous substance or dangerous preparation; and
b
if that receptacle is inside one or more layers of packaging, on any such layer which is likely to be the outermost layer of packaging during the supply or use of the dangerous substance or dangerous preparation, unless such packaging permits the particulars shown on the receptacle or other packaging to be clearly seen.
2
The particulars required under paragraph (1) in relation to a dangerous substance shall be —
a
the name, full address and telephone number of a person in an EEA State who is responsible for supplying the substance, whether the person be its manufacturer, importer or distributor;
b
the name of the substance being —
i
where the substance appears in Table 3.2 of part 3 of Annex VI of the CLP Regulation, the name or one of the names listed therein for that substance; or
ii
where the substance does not appear in Table 3.2 of part 3 of Annex VI of the CLP Regulation, an internationally recognised name; and
c
the following particulars ascertained in accordance with Part I of Schedule 4, namely —
i
any indications of danger together with corresponding symbols;
ii
the risk phrases, set out in full;
iii
the safety phrases, set out in full; and
iv
any EC number and, in the case of a substance which is listed in Table 3.2 of part 3 of Annex VI of the CLP Regulation, the words “EC label”.
3
The particulars required under paragraph (1) in relation to a dangerous preparation shall be —
a
the name, full address and telephone number of a person in an EEA State who is responsible for supplying the preparation, whether that person be its manufacturer, importer or distributor;
b
the trade name or other designation of the preparation; and
c
the following particulars ascertained in accordance with Part I of Schedule 4, namely —
i
identification of the constituents of the preparation which result in it being classified as a dangerous preparation,
ii
any indications of danger together with corresponding symbols,
iii
the risk phrases, set out in full,
iv
the safety phrases, set out in full,
v
in the case of a preparation intended for sale to the general public, the nominal quantity (nominal mass or nominal volume).
4
Without prejudice to paragraph 3 of Schedule 3 to the Plant Protection Products Regulations, indications such as “non-toxic”, “non-harmful”, “non-polluting”, “ecological” or any other statement indicating that the dangerous substance or preparation is not dangerous or that is likely to lead to underestimation of the dangers of the dangerous substance or dangerous preparation shall not appear on the package.
5
Where paragraph (6) applies, the packaging of a dangerous substance or dangerous preparation classified in one or more of the categories of danger harmful, extremely flammable, highly flammable, flammable, irritant or oxidising shall not be required to be labelled in respect of that hazardous property.
6
This paragraph shall apply where the package contains such small quantities of that substance or preparation that there is no foreseeable risk, under conditions of supply, use and disposal, arising from that hazardous property to persons handling that substance or preparation or to other persons.
7
The packaging of a dangerous preparation classified in the category of danger dangerous for the environment (with or without the “N” symbol) shall not be required to be labelled in respect of its environmental hazard in accordance with this regulation provided that it contains such small quantities of that preparation that there is no foreseeable risk, under conditions of supply, use and disposal, to the environment.
8
Where the package in which a dangerous substance is supplied does not contain more than 125 millilitres of that substance the risk phrases and safety phrases need not be shown if the dangerous substance is classified only in one or more of the categories of danger —
a
highly flammable, flammable, oxidising or irritant; or
b
harmful, provided the dangerous substance is not sold to the general public.
9
Where the package in which a dangerous preparation is supplied does not contain more than 125 millilitres of that preparation —
a
the risk phrases and safety phrases need not be shown if the dangerous preparation is classified only in one or more of the categories of danger —
i
irritant (except those assigned the risk phrase R41);
ii
dangerous for the environment and assigned the N symbol;
iii
oxidising; or
iv
highly flammable; and
b
the safety phrases need not be shown if the dangerous preparation is classified only in one or more of the categories of danger —
i
flammable; or
ii
dangerous for the environment and not assigned the N symbol.
10
Where a dangerous substance or dangerous preparation is required to be labelled in accordance with these Regulations and is so labelled, that labelling shall be deemed to satisfy the requirements of —
a
section 5 of the Petroleum (Consolidation) Act 1928 including that section as applied to any dangerous substance by an Order in Council made under section 19 of that Act;
b
regulation 10 of the Dangerous Substances and Explosive Atmospheres Regulations 2002 ; and
c
regulations 3 and 4 of the Farm and Garden Chemicals Regulations 1971 .
Labelling of single receptacles and receptacles in outer packagings
8
1
Where except for this regulation a package would be required to show the particulars required by regulation 7 and to be labelled and marked in accordance with any of the national or international transport rules, it shall be sufficient compliance with regulation 7 if the package shows the particulars specified in paragraphs (2) or (3) of this regulation.
2
Where the package consists of only a single receptacle, the specified particulars are —
a
the particulars required by —
i
paragraph (2)(a), (b), (c)(ii), (iii) and (iv) in the case of substances; and
ii
paragraph (3)(a), (b), (c)(i), (iii), (iv) and (v) in the case of preparations, of regulation 7 in accordance with regulation 10;
b
the labels and markings required by whichever of the national or international transport rules is appropriate; and
c
where a substance or preparation has been classified as dangerous for the environment, the appropriate indication of danger and the danger symbol from Schedule 2 in accordance with regulation 10.
3
Where the package consists of one or more receptacles in outer packagings, the particulars specified are the labels and markings required by whichever of the national or international transport rules is appropriate.
4
For the purpose of this regulation and regulation 9(3) —
a
the national transport rules are —
i
the Merchant Shipping (Dangerous Goods and Marine Pollutants) Regulations 1997;
ii
the Air Navigation (Dangerous Goods) Regulations 2002; and
iii
the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2007; and
b
the international transport rules are —
i
the European Agreement concerning the International Carriage of Dangerous Goods by Road signed at Geneva on 30th September 1957, as revised or reissued from time to time ;
ii
the European Agreement concerning the International Carriage of Dangerous Goods by Inland Waterway, as revised or re-issued from time to time ;
iii
the Technical Instructions for the Safe Transport of Dangerous Goods by Air, as revised or re-issued from time to time ;
iv
the International Maritime Dangerous Goods Code, as revised or re-issued from time to time ; and
v
the Regulation concerning the International Carriage of Dangerous Goods by Rail including its Annex which together form Appendix C to the Convention concerning the International Carriage by Rail , as revised or re-issued from time to time.
Particular labelling requirements for certain preparations
9
1
In the case of preparations to which Part II of Schedule 4 applies, the appropriate provisions of that Part shall have effect to regulate the labelling of such preparations.
2
Subject to paragraph 3, no person shall supply a preparation to which section B or C of Part II of Schedule 4 applies unless the trade name or other designation of that preparation and the name, full address and telephone number of a person in an EEA state who is responsible for supplying that preparation (whether the person is its manufacturer, importer or distributor) are clearly shown in accordance with the requirements of regulation 10 —
a
on the receptacle containing that preparation; and
b
if that receptacle is inside one or more layers of packaging, on any such layer which is likely to be the outermost layer of packaging during the supply or use of that preparation, unless such packaging permits the particulars shown on the receptacle or other packaging to be clearly seen.
3
Where a package would be required to be labelled and marked in accordance with any of the national or international transport rules listed in regulation 8(4) and the package consists of one or more receptacles in outer packagings, it shall be sufficient compliance with paragraph (2) if the package shows the labels and markings required by whichever of the national or international rules is appropriate.
4
The supplier of an aerosol dispenser which contains a dangerous substance or dangerous preparation which has been classified in the category of danger “flammable”, “highly flammable” or “extremely flammable” may choose to omit from the label —
a
in the case of a dangerous substance, the particulars referred to in paragraphs (i) to (iii) of regulation 7(2)(c) which relate to that category of danger; and
b
in the case of a dangerous preparation, the particulars referred to in paragraphs (ii) to (iv) of regulation 7(3)(c) which relate to that category of danger,
provided the conditions specified in (5) are satisfied.
5
The conditions referred to in paragraph (4) are that the supplier —
a
is in possession of evidence which shows that the contents of the aerosol dispenser do not present a risk of ignition under normal or reasonably foreseeable conditions of use; and
b
identifies the quantity of flammable material contained in the aerosol dispenser in the form of the following inscription on the label —
“X% by mass of the contents are flammable”.
6
In the case of a plant protection product approved under the Plant Protection Products Regulations or a product approved under the Control of Pesticides Regulations 1986 , the labelling information required by these Regulations shall be accompanied by the wording “To avoid risks to man and the environment, comply with the instructions for use”.
Methods of marking or labelling packages
10
1
Any package which is required to be labelled in accordance with regulations 7 to 9 may carry the particulars required to be on the label clearly and indelibly marked on a part of that package reserved for that purpose and, unless the context otherwise requires, any reference in these Regulations to a label includes a reference to that part of the package so reserved.
2
Subject to paragraph (7), any label required to be carried on a package shall be securely fixed to the package with its entire surface in contact with it and the label shall be clearly and indelibly printed.
3
The colour and nature of the marking shall be such that any symbol and the wording stand out clearly from the background and the wording shall be of such size and spacing as to be easily read.
4
The package shall be so labelled that the particulars can be read horizontally when the package is set down normally.
5
Subject to paragraph (7), the dimensions of the label required by regulation 7 shall be as follows —
Capacity of package Dimensions of label
a
not exceeding 3 litres
if possible at least 52 x 74 millimetres
b
exceeding 3 litres but not exceeding 50 litres
at least 74 x 105 millimetres
c
exceeding 50 litres but not exceeding 500 litres
at least 105 x 148 millimetres
d
exceeding 500 litres
at least 148 x 210 millimetres
6
A symbol required to be shown in accordance with regulation 7(2)(c)(i) or 7(3)(c)(ii) and specified in column 3 of Schedule 2 shall be printed in black on an orange-yellow background and its size (including the orange-yellow background) shall be at least equal to an area of one-tenth of that of a label which complies with paragraph (5) and shall not in any case be less than 100 square millimetres.
7
If the package is an awkward shape or so small that it is unsuitable to attach a label complying with paragraphs (2) and (5), the label shall be attached in some other appropriate manner.
Child resistant fastenings, tactile warning devices and other consumer protection measures
11
1
The British and International Standards referred to in this regulation are further described in Schedule 5.
2
Subject to paragraphs (4) and (5), no person shall supply to the general public a substance or a preparation specified in paragraph (3) in a receptacle of any size fitted with —
a
a replaceable closure unless the packaging complies with the requirements of BS EN 28317; or ISO 8317; or
b
a non-replaceable closure unless the packaging complies with the requirements of EN 862.
3
The substances and preparations referred to in paragraph (2) are —
a
dangerous substances and dangerous preparations which are required to be labelled with the indication of danger “very toxic”, “toxic” or “corrosive”;
b
preparations containing methanol in a concentration equal to or more than 3% by weight;
c
preparations containing dichloromethane in a concentration equal to or more than 1% by weight;
d
substances which are assigned the risk phrase R65 in Table 3.2 of part 3 of Annex VI of the CLP Regulation, except where such a substance is supplied in an aerosol dispenser or a container fitted with a sealed spray attachment; and
e
substances and preparations which are assigned the risk phrase R65 and are classified and labelled according to the approved classification and labelling guide, except where such a substance or preparation is supplied in an aerosol dispenser or a container fitted with a sealed spray attachment.
4
Paragraph (2) shall not apply if the person supplying the substance or preparation in question can show that it is obvious that the packaging in which the substance or preparation is supplied is sufficiently safe for children because they cannot obtain access to the contents without the help of a tool.
5
If the packaging, in which a substance or preparation specified in paragraph (3) is supplied to the general public, was approved on or before 31 May 1993 by the British Standards Institution as complying with the requirements of BS 6652, that packaging shall be deemed to comply with the requirements of BS EN 28317.
6
No person shall supply a dangerous preparation or a preparation specified in paragraph (3) to the general public if the packaging in which that preparation is supplied has —
a
either a shape or a designation or both likely to attract or arouse the active curiosity of children or to mislead consumers; or
b
either a presentation or a designation or both used for —
i
human or animal foodstuffs;
ii
medicinal products; or
iii
cosmetic products.
7
Subject to paragraph (9), no person shall supply to the general public a dangerous substance or a dangerous preparation specified in paragraph (8) in a receptacle of any size, unless the packaging in which that dangerous substance or dangerous preparation is supplied carries a tactile warning of danger in accordance with EN ISO 11683.
8
The dangerous substances and the dangerous preparations referred to in paragraph (7) are those which are required to be labelled with one or more of the following indications of danger, namely —
a
very toxic;
b
toxic;
c
corrosive;
d
harmful;
e
extremely flammable; or
f
highly flammable.
9
Paragraph (7) shall not apply to an aerosol dispenser which is classified and labelled only with the indication of danger extremely flammable or highly flammable.
10
For the purpose of ascertaining whether there has been a contravention of paragraph (2), a duly authorised officer of the enforcing authority may require the person supplying a substance or a preparation to which that paragraph applies to provide the duly authorised officer with a certificate from a qualified test house stating that —
a
the closure is such that it is not necessary to test to BS EN 28317 or ISO 8317; or
b
the closure has been tested and found to conform to BS EN 28317 or ISO 8317.
11
In this regulation, “qualified test house” means a laboratory that conforms to BS 7501 or EN 45 000.
Retention of data for dangerous preparations
12
1
The person who is responsible for first supplying a dangerous preparation shall maintain a record of the information —
a
used for the purposes of classifying that dangerous preparation in accordance with regulation 4;
b
used for the purposes of labelling that dangerous preparation in accordance with regulation 7; and
c
relating to any child resistant fastening or any tactile warning which forms part of the packaging in which the dangerous preparation in question is contained in accordance with regulation 11,
for at least three years after the date on which that dangerous preparation was supplied by that person for the last time.
2
When requested by the enforcing authority to do so, a person referred to in paragraph (1) shall make the record, or a copy of the record, maintained by the person in accordance with that paragraph, available to the enforcing authority within 28 days of the date of the request.
3
When requested to do so by the enforcing authority, a person who supplies a dangerous preparation shall provide to the enforcing authority a copy of any certificate issued by a qualified test house.
Transitional provisions for dangerous substances, dangerous preparations and certain specified preparations
13
1
Regulation 4 shall not have effect on or after 1 June 2015.
2
Where a substance has been classified, labelled and packaged in accordance with the CLP Regulation, regulations 6 to 11 shall not apply to that substance.
3
Where a preparation has been classified, labelled and packaged in accordance with the CLP Regulation, regulations 6 to 11 shall not apply to that preparation.
4
Insofar as they relate to substances, regulations 6 to 11 shall not have effect on or after 1 December 2010.
5
Insofar as they relate to preparations, regulations 6 to 11 shall not have effect on or after 1 June 2015.
6
Regulation 12 shall not apply on or after 1 June 2018.
PART 3
MISCELLANEOUS
Enforcement
14
1
To the extent that they would not otherwise do so, sections —
a
16 to 28 (approval of codes of practice; enforcement; indemnification of inspectors; power to obtain information and restrictions on disclosure of information);
b
33 to 42 (provisions as to offences); and
c
47(2) (civil liability),
of the 1974 Act shall apply to these Regulations and the CLP Regulation as if these Regulations and the CLP Regulation were health and safety Regulations for the purposes of that Act except that those sections shall not apply to duties placed by the CLP Regulation on the competent authority or the Member State.
2
Any function of the Health and Safety Executive under any other provision of the 1974 Act under or in respect of health and safety Regulations (including their enforcement) shall be exercisable as if these Regulations and the CLP Regulation were health and safety Regulations for the purposes of that Act to the extent that they would not otherwise do so.
3
Notwithstanding regulation 3 of the Health and Safety (Enforcing Authority) Regulations 1998 and subject to paragraphs (4) and (5), the enforcing authority for these Regulations and the CLP Regulation shall be the Executive.
4
Subject to paragraph (5), where a substance or preparation is supplied, or a substance, mixture or article falling within the meaning of and the provisions of the CLP Regulation is placed on the market within the meaning of the CLP Regulation in or from premises which are registered under section 75 of the Medicines Act 1968 , the enforcing authority shall be the Royal Pharmaceutical Society.
5
The enforcing authority for these Regulations and the CLP Regulation shall be the local weights and measures authority —
a
where a substance or preparation is supplied or a substance, mixture or article falling within the meaning of and the provisions of the CLP Regulation is placed on the market within the meaning of the CLP Regulation other than in the circumstances referred to in paragraph (4) —
i
in or from any shop, mobile vehicle, market stall or other retail outlet, or
ii
otherwise to members of the public, including by way of free sample, prize or mail order;
b
for regulation 11;
c
for Articles 35(2) and 48 of the CLP Regulation.
6
In every case where, by virtue of this regulation and the CLP Regulation, these Regulations and the CLP Regulation are enforced by the Royal Pharmaceutical Society or the local weights and measures authority, they shall be enforced as if they were safety regulations made under section 11 of the Consumer Protection Act 1987 and the provisions of section 12 of that Act shall apply to these Regulations and the CLP Regulation as if they were safety regulations for the purposes of that Act and as if the maximum period of imprisonment on summary conviction specified in subsection (5) thereof were 3 months instead of 6 months.
Defence
15
In any proceedings for an offence for a contravention of any of the provisions of these regulations and the CLP Regulation it shall be a defence for the person charged to prove that the person took all reasonable precautions and exercised all due diligence to avoid the commission of the offence.
Extension outside Great Britain
16
These Regulations and the CLP Regulation shall apply to any activity outside Great Britain to which sections 1 to 59 and 80 to 82 of the 1974 Act apply by virtue of the Health and Safety at Work etc. Act 1974 (Application outside Great Britain) Order 2001 as they apply to activities within Great Britain.
Revocations and amendments
17
The Regulations specified in the Table in Schedule 6 are amended in accordance with the provisions of that Table.
18
The Regulations specified in the Table in Schedule 7 are revoked to the extent specified in that Table.
Signed by authority of the Secretary of State for Work and Pensions.
William D. McKenzie
Parliamentary Under-Secretary of State,
Department for Work and Pensions
16th March 2009


text:
PART 1 General Provisions
Citation, commencement and interpretation
1
1
These Regulations may be cited as the Armed Forces (Protection of Children of Service Families) Regulations 2009 and shall come into force on 31st October 2009.
2
In these Regulations —
“court administration officer” means the court administration officer appointed under section 363 of the Armed Forces Act 2006 ;
“representations” means written and oral representations;
“ the Act ” means the Armed Forces Act 1991, and all references to sections are references to sections of the Act unless otherwise stated;
“the 1996 Regulations ” means the Armed Forces (Protection of Children of Service Families) Regulations 1996 .
Revocation of regulations
2
The 1996 Regulations are revoked.
Persons authorised to apply for an assessment order and designated for the purposes of section 19
3
1
The following persons shall be authorised to make an application for an assessment order under section 17(3) and shall be designated persons for the purposes of section 19 —
a
a registered social worker qualified to practise in child protection; and
b
a registered medical practitioner.
2
In paragraph (1) “registered social worker” has the meaning given by section 257(3) of the Armed Forces Act 2006, and “registered medical practitioner” means a person registered as a medical practitioner under the Medical Act 1983 .
Making assessment orders
4
1
An application for an assessment order shall be made in writing and shall specify the grounds on which it is made, the name of the child with respect to whom the application is made and the address at which the child is residing or staying for the purposes of section 17(1).
2
On receipt of an application for an assessment order, the court administration officer shall —
a
set a date, time and place for a hearing of the application by a judge advocate, and
b
give the applicant notice in writing of the date, time and place of the hearing,
allowing reasonable time for the applicant to comply with the requirements of paragraph (3).
3
An applicant for an assessment order shall take such steps as are reasonably practicable to give the persons listed in section 17(4) not less than seven clear days’ notice in writing of the date, time and place of the hearing.
4
Before deciding whether or not to make an assessment order, the judge advocate shall consider any representations made by the applicant or by the persons listed in section 17(4).
5
If the judge advocate adjourns the hearing of an application for an assessment order, he shall —
a
set the date, time and place at which he will resume the hearing of the application; and
b
take such steps as are reasonably practicable to ensure that any person listed in section 17(4) who was not present at the adjourned hearing is notified of the date, time and place set under sub-paragraph (a).
6
In relation to an application for an assessment order, the judge advocate shall ensure that —
a
a written record is made of the substance of the oral representations (if any) made at the hearing of the application by each person listed in section 17(4); and
b
notice is given in writing of any decision he makes and the reasons for it, and a copy of the assessment order if he has made one, to the applicant and to the persons who have been given notice of the application in accordance with section 17(4).
7
In calculating seven clear days’ notice under this regulation, the day of receipt of the notice and the day of the hearing shall be excluded from the calculation.
Variation and discharge of assessment orders
5
1
An application for the variation or discharge of an assessment order shall be made in writing and shall specify the grounds on which it is made.
2
A judge advocate shall not vary or discharge an assessment order without first affording an opportunity to make representations to him to such of those persons listed in paragraph (3) as he decides should be afforded that opportunity.
3
The persons referred to in paragraph (2) are —
a
the person who applied for the order;
b
the child to whom the order relates;
c
his parents;
d
any other person who has parental responsibility for him;
e
any other person caring for the child or with whom the child was residing immediately before the making of the application;
f
any person in whose favour a contact order is in force with respect to the child; and
g
any person who is allowed to have contact with the child by virtue of an order —
i
under section 34 of the Children Act 1989 or article 53 of the Children (Northern Ireland) Order 1995 ; or
ii
under section 88 of the Children (Scotland) Act 1995 .
4
Where a judge advocate varies or discharges an assessment order, he shall ensure that notice is given in writing of his decision, and the reasons for it, and a copy of the assessment order if he has amended it, to the applicant and to those persons to whom he afforded an opportunity to make representations under paragraph (2).
Making protection orders
6
1
An application for a protection order shall be made in writing and shall specify the grounds on which it is made, the address at which the child with respect to whom the application is made is residing or staying for the purposes of section 17(1), and sufficient information to enable the child to be identified.
2
In relation to an application for a protection order, the judge advocate shall ensure that —
a
a written record is made of the substance of the oral representations (if any) made at any hearing before him by each person listed in section 19(4) ; and
b
notice is given in writing of his decision, and the reasons for it, and a copy of the protection order if he has made one, to the applicant and to the persons listed in section 19(4).
Further provision as to protection orders
7
1
This regulation applies to —
a
the variation or revocation of a direction given under section 20(4);
b
the variation under section 22(5A) of an exclusion requirement included in a protection order; and
c
the discharge under section 22(5A) of a protection order so far as it imposes an exclusion requirement.
2
A judge advocate may, on the application of any person, vary or revoke a direction given under section 20(4).
3
An application for a variation, revocation or discharge referred to in paragraph (1) shall be made in writing and specify the grounds on which it is made.
4
A judge advocate shall not make a variation, revocation or discharge referred to in paragraph (1) without first affording —
a
the responsible person,
b
the child to whom the protection order relates,
c
his parents,
d
any other person who has parental responsibility for him, and
e
any other person with whom he was residing immediately before the making of the application,
an opportunity to make representations to him, except where it appears to the judge advocate that in the interests of the child it would be undesirable to do so, or that it would be impracticable, or would cause any unnecessary delay, to communicate with any of those persons.
5
Where on an application under this regulation a judge advocate varies or revokes a direction given under section 20(4), he shall make a record on the original order accordingly, and he shall ensure that —
a
a copy of the order as amended by the variation or revocation, and
b
notice in writing of the decision and the reasons for it,
are sent to the persons listed in paragraph (4).
6
Where a judge advocate varies an exclusion requirement included in a protection order or discharges a protection order so far as it imposes an exclusion requirement, he shall make a record on the original order accordingly, and he shall ensure that —
a
a copy of the order as amended or discharged, and
b
notice in writing of the decision and the reasons for it,
are sent to the persons listed in paragraph (4) and to the person to whom the exclusion order relates.
Review of protection orders
8
1
Before conducting a review under section 22 of a protection order, the judge advocate —
a
shall afford the persons listed in regulation 7(4) an opportunity to make representations to him, except where it appears to the judge advocate that it would be undesirable to do so in the interests of the child, or that it would be impracticable, or would cause any unnecessary delay, to communicate with any of those persons; and
b
may by written notice require any of those persons to provide him with specified information relating to the protection order.
2
Following a review of a protection order, the judge advocate carrying out the review shall ensure that notice is given in writing of his decision, and the reasons for it, and a copy of the protection order if he has amended it, to the persons listed in regulation 7(4).
3
Where the judge advocate carrying out a review gives a direction under section 20(4), or varies or revokes any direction previously given under that subsection, he shall make a record on the original order accordingly, and he shall ensure that a copy of the order as so amended is sent to the persons listed in regulation 7(4).
Discharge of protection orders
9
1
A protection order may not be discharged under section 22(5) until the expiry of the period of seventy-two hours beginning with —
a
where an extension order under section 21(2) has effect in relation to the protection order, the making of the extension order;
b
where a review of the protection order has been carried out in accordance with section 22, the completion of the review; or
c
in any other case, the making of the protection order.
2
An application for the discharge of a protection order shall be made in writing and shall specify the grounds on which it is made.
3
Subject to paragraph (4), a judge advocate shall not discharge a protection order without first affording the persons listed in regulation 7(4) an opportunity to make representations to him.
4
The judge advocate shall not be under a duty to afford a person referred to in paragraph (3) an opportunity to make representations to him, where it appears to the judge advocate that —
a
in the interests of the child it would be undesirable to do so, or
b
it would be impracticable, or would cause unnecessary delay, to communicate with that person,
except that the judge advocate shall always afford the responsible person such an opportunity.
5
Where a judge advocate discharges a protection order, he shall ensure that notice is given in writing of that decision, and the reasons for it, to the persons listed in regulation 7(4).
Live television link
10
1
Any hearing of an application under Part 3 of the Act, or any review of a protection order under section 22, may be conducted by live television link if the judge advocate who is to hear the application or conduct the review so directs.
2
A judge advocate may only make a direction under paragraph (1) if he is satisfied —
a
that it is desirable to do so in the interests of the child; or
b
that without a live television link, his consideration of the application or conduct of the review will be delayed or made impracticable.
Retention of records
11
1
The Judge Advocate General shall retain assessment orders and protection orders made after the coming into force of these Regulations for the period for which they have effect.
2
The Judge Advocate General shall retain all records made under these Regulations by a judge advocate, for the period for which the orders in relation to which they were made have effect.
3
In paragraph (2), “records” includes notes of any decisions made on a review of a protection order, notes of reasons, and any directions given by a judge advocate under section 20(4).
Removal and accommodation of children by service police in an emergency
12
1
Subject to paragraphs (2) and (3) below, for the purposes of section 22A(8), “an authorising service police officer” means a service policeman of or above the rank of naval lieutenant, military or marine captain or flight lieutenant who is superior by at least one rank to the relevant service policeman.
2
Paragraph (3) applies where the relevant service policeman has reasonable cause to believe that a relevant child is likely to suffer significant harm if an authorisation for the purposes of section 22A(1) is not given before the earliest time at which a service policeman who meets the requirements of paragraph (1) will be available.
3
Where this paragraph applies, “authorising service police officer” means a service policeman who —
a
is an officer; and
b
is of at least the same rank as the relevant service policeman.
4
An authorising service police officer shall not authorise a service policeman for the purposes of section 22A(1) unless he has reasonable grounds for believing that if the service policeman does not take action within subsection (1)(a) or (b) of section 22A, a relevant child will be likely to suffer significant harm.
5
Where an authorising service police officer authorises a service policeman to take action within subsection (1)(a) or (b) of section 22A, he shall record in writing either at the time or as soon as practicable afterwards —
a
the time and date of the authorisation;
b
the name and rank of the relevant service policeman;
c
a summary of the information provided by the relevant service policeman on the basis of which he gave his authorisation; and
d
the address at which the child is residing or staying for the purposes of section 17(1), and sufficient information to enable the child to be identified.
6
For the purposes of this regulation, “relevant service policeman” means the service policeman referred to in section 22A(1).
7
For the purposes of section 22A(8), “the appropriate service police officer” means the service policeman who is the officer with responsibility for child protection in his unit.
PART 2 Applications and reviews before the coming into force of these Regulations
Applications for assessment orders
13
1
Where, before the coming into force of these Regulations —
a
an application for an assessment order has been made in accordance with regulation 5(1) of the 1996 Regulations by a person authorised by those Regulations to make it, and
b
it has not been decided whether to make an assessment order,
the application is to be treated, subject to paragraphs (2) to (5), as if it were an application made in accordance with regulation 4(1) by a person authorised under regulation 3 to make it.
2
The applicant shall provide the court administration officer with a copy of the application.
3
Where an officer has complied with regulation 5(2) of the 1996 Regulations and no hearing of the application under those Regulations has begun before the coming into force of these Regulations —
a
regulation 4(2) shall not apply;
b
the court administration officer shall —
i
set a date, time and place for a hearing of the application by a judge advocate, allowing reasonable time for the applicant to comply with the requirements of sub-paragraph (c);
ii
give the applicant notice in writing of the date, time and place set, allowing reasonable time for the applicant to comply with the requirements of sub-paragraph (c); and
c
the applicant shall take such steps as are reasonably practicable to give the persons listed in section 17(4) not less than seven clear days’ notice in writing of the date, time and place set for the hearing.
4
Any person whose representations shall under regulation 4(4) be considered shall be entitled —
a
to attend the hearing of the application; and
b
to be represented at the hearing.
5
Where the hearing of an application for an assessment order has begun but has not been concluded before the coming into force of these Regulations, regulation 4 shall apply as if receipt by the court administration officer of a copy of the application provided in accordance with paragraph (2) were receipt of an application under regulation 4(1).
6
Where —
a
before the date on which these Regulations come into force, the officer having jurisdiction has decided, in relation to an application for an assessment order, whether to make such an order,
b
he has not, before that date, complied with regulation 5(9)(b) of the 1996 Regulations, and
c
on that date, any assessment order he has made in respect of that application remains in effect,
he shall ensure that notice is given in writing of his decision and the reasons for it, and a copy of the assessment order if he has made one, to the applicant and to the persons who have been given notice of the application in accordance with section 17(4).
Applications to vary or discharge assessment orders
14
1
Where, before the coming into force of these Regulations —
a
an application for the variation or discharge of an assessment order has been made in accordance with regulation 6(2) of the 1996 Regulations by a person authorised by section 18(7) to make it, and
b
it has not been decided whether to vary or discharge the order,
subject to paragraph (2), the application is to be treated as an application made in accordance with regulation 5(1).
2
The applicant shall provide the court administration officer with a copy of the application.
Applications for protection orders
15
1
Where, before the coming into force of these Regulations —
a
an application for a protection order has been made, and
b
it has not been decided whether to make a protection order,
subject to paragraphs (2) to (6), the application is to be treated as if it were an application made in accordance with regulation 6(1).
2
The applicant shall provide the court administration officer with a copy of the application.
3
If the applicant was a person designated under the 1996 Regulations for the purposes of section 19, he shall be treated as a person designated for that purpose under regulation 3.
4
Subject to paragraph (5), a judge advocate shall not give a direction under section 20(4) without first affording —
a
the responsible person,
b
the child to whom the protection order relates,
c
his parents,
d
any other person who has parental responsibility for him, and
e
any other person with whom he was residing immediately before the making of the application,
an opportunity to make representations to him.
5
A judge advocate shall not be required to afford such an opportunity to a person in respect of whom it appears to the judge advocate that —
a
it would be undesirable to do so in the interests of the child, or
b
it would be impracticable, or would cause unnecessary delay, to communicate with that person.
6
If, in accordance with paragraphs (4) and (5), a person shall be afforded the opportunity to make representations, he shall be entitled —
a
to attend any hearing which is held for the purposes of determining whether any direction should be given; and
b
to be represented at any such hearing.
7
Where —
a
before the date on which these Regulations come into force, the officer having jurisdiction has decided, in relation to an application for a protection order, whether to make such an order,
b
he has not, before that date, complied with regulation 7(b) of the 1996 Regulations, and
c
on that date, any protection order he has made in respect of that application remains in effect,
he shall ensure that notice is given in writing of his decision and the reasons for it to the applicant and to the persons mentioned in section 19(4).
Applications for the variation or revocation of directions in protection orders
16
1
Where, before the coming into force of these Regulations —
a
an application for the variation or revocation of a direction given under section 20(4) has been made in accordance with regulation 8(2) of the 1996 Regulations, and
b
it has not been decided whether to vary or revoke the direction,
subject to paragraphs (2) and (3), the application is to be treated as an application to which regulation 7(1)(a) applies and which has been made in accordance with regulation 7(3).
2
The applicant shall provide the court administration officer with a copy of the application.
3
Any person having the right under regulation 7(4) to make representations shall be entitled —
a
to attend any hearing which is held for the purposes of determining whether any direction should be varied or revoked; and
b
to be represented at any such hearing.
4
Where —
a
before the date on which these Regulations come into force, the officer having jurisdiction has varied or revoked a direction given under section 20(4),
b
he has not, before that date, complied with regulation 8(6) of the 1996 Regulations, and
c
in a case where he has varied the direction, it remains in effect on that date,
he shall, as soon as is reasonably practicable, give notice in writing of the revocation or, as the case may be, the variation to the persons mentioned in regulation 15(4).
Review of protection orders
17
1
Where —
a
before the date on which these Regulations come into force, an officer has carried out a review of a protection order,
b
he has not, before that date, complied with regulations 9(4) of the 1996 Regulations, and
c
on that date, the protection order in relation to which he carried out the review remains in effect,
he shall ensure that he communicates in writing the reasons for any decision he reached on carrying out the review to the persons mentioned in regulation 15(4).
2
Where —
a
on carrying out a review which falls within paragraph (1)(a), the officer has given a direction under section 20(4) of the Act, or has varied or revoked any direction previously given under that subsection,
b
he has not, before the date on which these Regulations came into force, complied with regulation 9(5) of the 1996 Regulations, and
c
on that date, the protection order in relation to which he has carried out the review remains in effect,
he shall make a record of the direction, variation or revocation (as the case may be) on the original order, and a copy of the order as so amended shall be sent to the persons mentioned in regulation 15(4).
Kevan Jones
Parliamentary Under Secretary of State
Ministry of Defence
24th April 2009