Terminal illness
A person is defined as 'terminally ill' if at that time they suffer from a progressive disease and their death in consequence of that disease can reasonably be expected within 12 months.
Legislation
Regulations provide that a person who is terminally ill is automatically treated as having limited capability for work and work-related activity.
Sources:
- Regulation 20(1)(a) and regulation 35(1)(a) of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008), and regulation 20(1)(a) and regulation 35(1)(a) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SR.No.280/2008) (apply to income-related and old-style contributory ESA).
- Regulation 16(1)(a) and regulation 31(1)(a) of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013), and regulation 16(1)(a) and regulation 31(1)(a) of the Employment and Support Allowance Regulations (Northern Ireland) 2016 (SR.No.209/2016) (apply to new-style contributory ESA).
- Paragraph 1 of Schedule 9 to the Universal Credit Regulations 2013 (SI.No.376/2013), and paragraph 1 of Schedule 9 to the Universal Credit Regulations (Northern Ireland) 2013 (SR.No.216/2016) (apply to universal credit).
Regulations also provide that claimants who are terminally ill do not have to serve the three-month waiting period before the support group component of ESA or the limited capability for work-related activity element of universal credit can be included in the award.
Sources:
- Regulation 7(1)(a) of the Employment and Support Allowance Regulations 2008 (SI.No.794/2008), and regulation 7(1)(a) of the Employment and Support Allowance Regulations (Northern Ireland) 2008 (SR.No.280/2008) (apply to income-related and old-style contributory ESA).
- Regulation 7(1)(a) of the Employment and Support Allowance Regulations 2013 (SI.No.379/2013), and regulation 7(1)(a) of the Employment and Support Allowance Regulations (Northern Ireland) 2016 (SR.No.209/2016) (apply to new-style contributory ESA).
- Regulation 28 (5)(a) of the Universal Credit Regulations 2013 (SI.No.376/2013), and regulation 29(5)(a) of the Universal Credit Regulations (Northern Ireland) 2013 (SR.No.216/2016) (apply to universal credit).
Case law
Commentary: The definition of terminal illness has been considered by the courts (see below) which accelerated a change in the legislation, brought into force in April 2022, which provides that a person is considered terminally ill if death can reasonably be expected within 12 months as opposed to six months as it was prior to that date.
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Court of Appeal in Northern Ireland overturns High Court judgment that differential treatment of claimants under terminal illness provisions is unlawful
- [2021] NICA 46
- Department For Communities v Cox
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High Court holds that special rules for terminal illness, in case where claimant cannot demonstrate their death can be reasonably expected within six months, are ‘discriminatory’ and ‘manifestly without reasonable foundation’
- [2020] NIQB 53
- Cox, Re Application for Judicial Review