Made - - 29th November 2011
Laid before Parliament - - 30th November 2011
Coming into force - - 1st January 2012
The Secretary of State makes the following Regulations in exercise
of the powers conferred by sections 2(3B)(a) and 35(1) of the
Jobseekers Act 1995 and section 24(1) of, and paragraph 1(4)(a) of
Schedule 1 to, the Welfare Reform Act 2007.
This instrument contains only regulations made by virtue of
sections 12(5) and 13(5) of the Welfare Reform Act 2009 and is made
before the end of the period of 6 months beginning with the coming
into force of those sections.
Citation and commencement
1.-(1) These Regulations may be cited as the Social
Security (Contribution Conditions for Jobseeker's Allowance and
Employment and Support Allowance) Regulations 2011.
(2) These Regulations come into force on 1st January 2012.
Amendment of the Jobseeker's Allowance Regulations 1996
2. After regulation 45A of the Jobseeker's Allowance
Regulations 1996 (the contributionbased conditions and relevant
earnings) insert-
"Relaxation of the first set of
conditions
45B.-(1) A claimant who also satisfies the condition in
paragraph (2) is to be taken to satisfy the first set of conditions
if the claimant has-
(a) paid Class 1 contributions before the relevant benefit
week in respect of any one tax year; and
(b) earnings at the lower earnings limit in that tax year on
which primary Class 1 contributions have been paid or treated as
paid which in total, and disregarding any earnings which exceed
the lower earnings limit for that year, are not less than that
limit multiplied by 26.
(2) The condition referred to in paragraph (1) is that the
claimant, in respect of any week during the last complete tax year
preceding the relevant benefit year, is entitled to be credited
with earnings in accordance with regulation 9E of the Social
Security (Credits) Regulations 1975 (credits for certain spouses
and civil partners of members of Her Majesty's
forces).".
Amendment of the Employment and Support Allowance Regulations
2008
3. In regulation 8(2) of the Employment and Support
Allowance Regulations 2008 (relaxation of the first contribution
condition) at the end of sub-paragraph (c) omit "or" and
insert-
"(ca) in respect of any week in the last complete tax year
preceding the relevant benefit year, is entitled to be credited
with earnings in accordance with regulation 9E of the Social
Security (Credits) Regulations 1975 (credits for certain spouses
and civil partners of members of Her Majesty's forces);
or".
Signed by authority of the Secretary of State for Work and
Pensions.
Freud
Parliamentary Under-Secretary of State,
Department for Work and Pensions
29th November 2011
EXPLANATORY NOTE
(This note is not part of the
Regulations)
These Regulations amend the Jobseeker's Allowance Regulations
1996 ("the JSA Regulations") (S.I. 1996/207) and the
Employment and Support Allowance Regulations 2008 ("the ESA
Regulations") (S.I. 2008/794) to make provision enabling certain
spouses or civil partners of a member of Her Majesty's forces to
satisfy the first contribution condition in relation to claims for
jobseeker's allowance and employment and support allowance.
Regulation 2 amends the JSA Regulations by inserting a new
regulation 45B.
Paragraph (1) of regulation 45B provides that a person who
satisfies the condition in paragraph (2) will be taken to satisfy the
first set of contribution conditions in section 2 of the Jobseekers
Act 1995 if they have paid sufficient Class 1 contributions before
the relevant benefit week in respect of any one tax year. The first
set of contribution conditions is defined in paragraph (3). It is (i)
that the claimant has actually paid Class 1 national insurance
contributions in respect of one of the last two complete years before
the beginning of the relevant year (section 2(1)(a) of the Jobseekers
Act 1995) and (ii) the additional conditions set out in section 2(2)
of that Act.
Paragraph (2) of regulation 45B provides that the conditions
referred to in paragraph (1) are that a person must, in respect of
any week during the last complete tax year preceding the relevant
benefit year, be entitled to be credited with earnings in accordance
with regulation 9E of the Social Security (Credits) Regulations 1975
(S.I. 1975/556). Under regulation 9E, a person will be entitled to
such credits in respect of any week in which they were the spouse or
civil partner of a member of Her Majesty's forces (or treated as
such by the Secretary of State for the purposes of occupying
accommodation) and were accompanying their spouse or civil partner on
an assignment outside the UK (or treated as such by the Secretary of
State).
Regulation 3 amends the ESA Regulations by inserting a new
paragraph (2)(ca) into regulation 8 of those Regulations. New
sub-paragraph (ca) makes provision in relation to employment and
support allowance for an equivalent easement to that contained in new
regulation 45B of the JSA Regulations.
A full impact assessment has not been published for this
instrument as it has no impact on the private sector or civil society
organisations.
EXPLANATORY MEMORANDUM
1. This Explanatory Memorandum has been prepared by the Department
for Work and Pensions and is laid before Parliament by Command of Her
Majesty.
2. Purpose of the instrument
2.1 From 1 January 2012, certain spouses and civil partners, who
accompany a member of Her Majesty's forces on a posting outside
the United Kingdom, will have entitlement to an easement of the first
National Insurance (NI) contribution conditions [See Appendix A for
an explanation of the first contribution condition] when they make a
claim for either contributory Employment and Support Allowance (ESA)
or contributory Jobseeker's Allowance (JSA). Such spouses and
civil partners will be able to benefit from the easement on return
from their posting, where they would not have otherwise met the first
NI contribution condition.
2.2 These Regulations make provision for this particular easement,
which will apply to such spouses and civil partners who choose to
accompany a member of Her Majesty's forces on a posting abroad,
in respect of any week during the last complete tax year [6 April - 5
April] preceding the start of a new benefit year [Benefit year
commences on the first Sunday of the calendar year and ends on the
last Saturday of the calendar year (see the Social Security
Contributions and Benefits Act 1992, s.21(6))] in which the claim for
benefit was made. Such spouses and civil partners will also need to
have been awarded a NI credit [the NI credit is awarded under
regulation 9E of the Social Security (Credits) Regulations 1975] in
respect of at least one week during the last complete tax year prior
to their claim to use the easement.
2.3 It will allow such people to be taken to have satisfied the
first contribution condition where they had paid sufficient NI
contributions in any previous complete tax year before the beginning
of the relevant benefit year. This differs from the current rules
where sufficient NI contributions must have been paid in one of the
last two complete tax years before the beginning of the relevant
benefit year. As such, the easement provided by these Regulations
will relax the conditions of entitlement in a similar way to the
easement used for carers claiming ESA contained in regulation 8(2)(a)
of the Employment and Support Allowance Regulations 2008 ("the
Employment and Support Allowance Regulations").
2.4 The easement applies to spouses and civil partners who
accompanied a member of Her Majesty's forces on a posting abroad
after April 2010. Therefore, this is clearly a change that will help
claimants to meet the benefit qualifying criteria as it will be
easier for them to satisfy the first contribution conditions.
3. Matters of special interest to the Joint Committee on
Statutory Instruments
3.1 None.
4. Legislative Context
4.1 The Government recognises the special circumstances
surrounding spouses and civil partners who choose to accompany
members of Her Majesty's forces on postings outside the UK.
Particularly as they have no control over where their spouse or civil
partner is posted, so they may encounter difficulties finding
employment during their time abroad. This, in turn, could hinder
their ability to maintain their NI contribution record.
4.2 Consequently, the Government introduced a NI credit, on 6
April 2010, to help such spouses and civil partners maintain both
their NI contributory record [this position was provided for in law
by the introduction of regulation 9E of the Social Security (Credits)
Regulations 1975 by regulation 2(3) of S.I. 2010/385] and their
entitlement towards ESA and JSA by protecting the second of two
contribution conditions [see Annex A for an explanation of the second
contribution condition]. The easement introduced by these Regulations
relies on the claimant being entitled to such a credit. The easement
will work in tandem with the NI credits by helping to protect the
first contribution condition and allowing such spouses and civil
partners to meet the first contribution condition through a relaxed
set of criteria.
4.3 These Regulations achieve that policy aim by inserting a new
regulation 45B into the Jobseeker's Allowance Regulations 1996
("the Jobseeker's Allowance Regulations") and a new
regulation 8(2)(ca) into the Employment and Support Allowance
Regulations.
4.4 Section 2(3B)(a) of the Jobseekers Act 1995 and paragraph
1(4)(a) of Schedule 1 to the Welfare Reform Act 2007 provide the
legislative authority for the introduction of this measure. These
primary provisions are inserted and amended, respectively, by
sections 12(5) (conditions for contributory JSA) and 13(5)
(conditions for contributory ESA) of the Welfare Reform Act 2009.
Sections 12(5) and 13(5) are commenced to the extent necessary to
make these Regulations by virtue of the Welfare Reform Act 2009
(Commencement No. 6) Order 2011.
4.5 In particular, section 2(3B)(a)(ii) of the Jobseekers Act 1995
and paragraph 1(4)(a)(ii) of Schedule 1 to the Welfare Reform Act
2007 both contain regulation-making powers providing that the first
contribution condition is to be taken to be satisfied in the case of
persons who satisfy "other prescribed conditions". These
Regulations prescribe such circumstances.
5. Territorial Extent and Application
This instrument applies to Great Britain. Equivalent provision
will be made for Northern Ireland by statutory rules.
6. European Convention on Human Rights
As this instrument is subject to negative resolution procedure and
does not amend primary legislation, no statement is required.
7. Policy background
What is being done and why
7.1 As part of the Armed Forces Service Personnel Command Paper
[http://www.mod.uk/NR/rdonlyres/415BB952-6850-45D0-B82D-C221CD0F6252/0/Cm7424.pdf],
'The Nation's Commitment: Cross Government Support to our
Armed Forces, their Families and Veterans' published in July
2008, it was agreed by the then Government that spouses and civil
partners who chose to accompany a member of Her Majesty's forces
on a posting abroad would be entitled to NI credits, for any periods
where they were unable to find work during the posting. The credits
are used to protect such people's entitlement to the basic State
Pension and working age contributory benefits, such as contributory
JSA or contributory ESA. However, as the NI credits only protect the
second contribution condition [see Appendix A for an explanation of
the second contribution condition], for both ESA and JSA, the
Government decided to introduce an additional easement for such
spouses and civil partners, which relaxed the qualifying criteria of
the first contribution condition.
7.2 Under current legislation, to satisfy the first contribution
conditions for contributory JSA or contributory ESA, people must have
worked for at least 26 weeks and paid or be treated as paid NI
contributions at the Lower Earnings Limit (£102.00 per week for
2011/12) in one of the last two complete tax years before the
relevant benefit year. However, under the easement, the spouses and
civil partners in question can be treated as having satisfied the
conditions where they have paid sufficient NI in any previous
complete tax year prior to their overseas posting.
7.3 The purpose of the easement is to help such spouses and civil
partners overcome some of the disadvantages they face when posted
abroad, as they have no control over where they are posted and may
encounter difficulties finding employment. The Government recognised
that this could affect their ability to maintain their NI records and
therefore, their entitlement to contributory ESA or JSA. The purpose
of this easement is to help remove some of those disadvantages by
treating such spouses and civil partners as having satisfied the
conditions where they have paid sufficient NI contributions in any
previous complete tax year prior to their overseas posting. Whilst
further changes to ESA are under proposal, within the Welfare Reform
Bill 2011, this easement will continue to remain effective following
the changes and offer the on-going support to such people as
intended. It is estimated that around 100 ESA claimants and 400 JSA
claimants will benefit from this easement each year.
Consolidation
7.3 Informal consolidation will be included in the
Department's 'the Law Relating to Social Security' (the
Blue Volumes). These are available at no cost to the public at:
http://www.dwp.gov.uk/advisers/docs/lawvols/bluevol/pdf/c_0031.pdf
8. Consultation outcome
8.1 As these draft regulations do not represent a significant
shift in policy and as they are both beneficial nature and only
impact on a relatively small number of people (estimated to be around
500 per year) the DWP did not consider that a specific consultation
exercise was necessary. However, the proposals to ease the
contribution conditions were included in the Ministry of Defence
(MoD) Command Paper 'The Nation's Commitment: Cross
Government Support to our Armed Forces, their Families and
Veterans' which was published in 2008. In July 2009, the MoD
issued a further consultation document [http://www.contracts.mod.uk/pdfs/23.pdf], 'The
Nation's Commitment to the Armed Forces Community: Consistent and
Enduring Support'. The responses showed that the majority of
people supported the changes proposed in the Command Paper.
8.2 The DWP is not required to refer any regulations to the Social
Security Advisory Committee where they are made within 6 months of
the commencement of their enabling powers [as provided under section
173(5) of the Social Security Administration Act 1992]. As such,
these Regulations were not referred to the Social Security Advisory
Committee.
9. Guidance
9.1 The DWP aims to ensure that all customers and stakeholders
understand the rules and obligations related to both ESA and JSA. The
DWP ensures this happens by communicating information about changes
to relevant customers, explaining when and how they will be affected
by changes and what it means for them. For this measure this will
involve working with MoD and updating external products and
publications such as the annual reports published by the MoD, which
chart the progress that is being made on cross-government initiatives
that support families and members of Her Majesty's forces.
9.2 With regards to staff, a launch bulletin alongside staff
guidance will be available via the intranet explaining the changes.
This will ensure that staff from DWP, Jobcentre Plus and Her
Majesty's Revenue and Customs understand the new policy and are
able to explain it clearly to customers.
10. Impact
10.1 This legislation does not impact on business, charities or
voluntary bodies.
10.2 This legislation has a low impact on the public sector as the
changes are being delivered using existing Jobcentre Plus and Her
Majesty's Revenue and Customs computer systems and procedures. In
addition, the numbers affected by the change are estimated to be
relatively low.
10.3 It is estimated that this change will generate an estimated
100 additional ESA claimants per year and 400 additional JSA
claimants per year. Initial estimates suggest ESA benefit expenditure
or Annually Managed Expenditure (AME) cost for the change will start
at £0.1m in 2011/12 and remain at £0.2 million for each
subsequent year until 2015/16. JSA benefit expenditure or AME cost
for the change are estimated at around £0.4m for each year
between 2011/12 and 2015/16 [DWP analysis based on an estimated 5,000
spouses and civil partners (supplied by MoD) who have accompanied
service personnel abroad returning to the UK in 2008, reducing by 25
per cent over the five years.].
10.4 An Impact Assessment has not been prepared for this
instrument. However, an Equality Impact Assessment has been produced
and is available by visiting the DWP website at: http://www.dwp.gov.uk/publications/impact-assessments/equality-impactassessments/2011/
11. Regulating small business
11.1 The legislation does not apply to small business.
12. Monitoring & review
12.1 This policy will be subject to ongoing review. The
introduction of ESA will be fully evaluated by 2014. The introduction
of this easement to help spouses and civil partners of HM forces meet
the first contribution condition for ESA will be reviewed as part of
that process. In addition, the MoD's external reference group
continues to monitor and report on the content of the Armed Forces
Command Paper 'The Nation's Commitment: Cross Government
Support to our Armed Forces, their Families and Veterans'.
13. Contact
Trevor Pendergast at the Department for Work and Pensions (Tel:
020 7449 5639 email: trevor.pendergast@dwp.gsi.gov.uk) can answer any
queries regarding this instrument.
14. Appendices
Appendix A Contribution conditions for Employment and Support
Allowance and Jobseeker's Allowance.
National Insurance
Contribution Conditions for Jobseeker's Allowance
First Contribution Condition -
Jobseeker's Allowance [as contained in s.2(1)(a) and (2) of the
Jobseekers Act 1995]
- (i) a claimant has actually paid Class 1 NI contributions in
respect of one ("the base year") of the last two complete
years before the beginning of the relevant benefit year,
- (ii) the contributions have been paid before the week for which
the JSA is claimed and
- (iii) the claimant's relevant earnings for the base year
upon which primary Class 1 contributions have been paid or treated
as paid are not less than the base year's lower earnings limit
multiplied by 26.
- Does not include Class 2 contributions (self-employed
contributions).
Second condition - Jobseeker's
Allowance [as contained in s.2(1)(b) and (3) of the Jobseekers Act
1995]
- For each of the previous two tax years, a claimant must have
either paid Class 1 NI contributions or been credited with
earnings, and
- The earnings factor derived from earnings upon which primary
Class 1 contributions have been paid or treated as paid from
earnings credited is not less, in each of the two complete years,
than 50 times the lower earnings limit for that tax year.
- Does not include Class 2 contributions.
National Insurance
Contribution Conditions for Employment and Support Allowance
First Contribution Condition -
Employment and Support Allowance [as contained in paragraph 1 of
Schedule 1 to the Welfare Reform Act 2007]
- (i) a claimant has actually paid Class 1 NI contributions in
respect of one ("the base tax year") of the last two
complete years before the beginning of the relevant benefit
year,
- (ii) the contributions have been paid before the week for which
the ESA is claimed and
- (iii) the claimant's relevant earnings for the base tax
year upon which primary Class 1 contributions have been paid or
treated as paid are not less than the base tax year's lower
earnings limit multiplied by 26 (that earnings factor being the
aggregate of claimant's earnings factors derived from (1) so
much of the claimant's earnings as did not exceed the base tax
year's upper earnings limit and upon which primary Class 1
contributions have been paid or treated as paid, and (2) Class 2
contributions.
Second Contribution Condition -
Employment and Support Allowance [as contained in paragraph 2 of
Schedule 1 to the Welfare Reform Act 2007]
- For each of the previous 2 tax years, a claimant must have been
paid or credited with class 1 or class 2 contributions on earnings
of no less than 50 times the lower earnings limit for that tax
year.