The Housing Benefit Regulations (Northern Ireland) 2006

SECTION 2 Income

Calculation of income on a weekly basis

24.—(1) Subject to regulations 31, 78 and 79 for the purposes of section 129(1)(c) of the Act (conditions of entitlement to housing benefit) the income of a claimant shall be calculated on a weekly basis—

(a) by estimating the amount which is likely to be his average weekly income in accordance with this Section and Sections 3 to 5 of this Part and Sections 1 and 3 of Part VII;

(b) by adding to that amount the weekly income calculated under regulation 49; and

(c) by then deducting any relevant child care charges to which regulation 25 applies from any earnings which form part of the average weekly income or, in a case where the conditions in paragraph (2) are met, from those earnings plus whichever credit specified in sub-paragraph (b) of that paragraph is appropriate, up to a maximum deduction in respect of the claimant’s family of whichever of the sums specified in paragraph (3) applies in his case.

(2) The conditions of this paragraph are that—

(a) the claimant’s earnings which form part of his average weekly income are less than the lower of either his relevant child care charges or whichever of the deductions specified in paragraph (3) otherwise applies in his case; and

(b) that claimant or, if he is a member of a couple either the claimant or his partner, is in receipt of either working tax credit or child tax credit.

(3) The maximum deduction to which paragraph (1)(c) refers shall be—

(a) where the claimant’s family includes only one child in respect of whom relevant child care charges are paid, £175.00 per week;

(b) where the claimant’s family includes more than one child in respect of whom relevant child care charges are paid, £300 per week.

(4) For the purposes of paragraph (1) “income” includes capital treated as income under regulation 38 and income which a claimant is treated as possessing under regulation 39.

Treatment of child care charges

25.—(1) This regulation applies where a claimant is incurring relevant child care charges and—

(a) is a lone parent and is engaged in remunerative work;

(b) is a member of a couple both of whom are engaged in remunerative work; or

(c) is a member of a couple where one member is engaged in remunerative work and the other—

(i) is incapacitated;

(ii) is an in-patient in hospital, or

(iii) is in prison (whether serving a custodial sentence or remanded in custody awaiting trial or sentence).

(2) For the purposes of paragraph (1) and subject to paragraph (4), a person to whom paragraph (3) applies shall be treated as engaged in remunerative work for a period not exceeding 28 weeks during which he—

(a) is paid statutory sick pay;

(b) is paid short-term incapacity benefit at the lower rate under sections 30A to 30E of the Act(1);

(c) is paid income support on the grounds of incapacity for work under regulation 4ZA of, and paragraph 7 or 14 of Schedule 1B to, the Income Support Regulations(2); or

(d) is credited with earnings on the grounds of incapacity for work under regulation 8B of the Social Security (Credits) Regulations (Northern Ireland) 1975(3).

(3) This paragraph applies to a person who was engaged in remunerative work immediately before—

(a) the first day of the period in respect of which he was first paid statutory sick pay, short-term incapacity benefit or income support on the grounds of incapacity for work; or

(b) the first day of the period in respect of which earnings are credited,

as the case may be.

(4) In a case to which paragraph (2)(c) or (d) applies, the period of 28 weeks begins on the day on which the person is first paid income support or on the first day of the period in respect of which earnings are credited, as the case may be.

(5) Relevant child care charges are those charges for care to which paragraphs (6) and (7) apply, and shall be calculated on a weekly basis in accordance with paragraph (10).

(6) The charges are paid by the claimant for care which is provided—

(a) in the case of any child of the claimant’s family who is not disabled, in respect of the period beginning on that child’s date of birth and ending on the day preceding the first Monday in September following that child’s fifteenth birthday; or

(b) in the case of any child of the claimant’s family who is disabled, in respect of the period beginning on that person’s date of birth and ending on the day preceding the first Monday in September following that person’s sixteenth birthday.

(7) The charges are paid for care which is provided by one or more of the care providers listed in paragraph (8) and are not paid—

(a) in respect of the child’s compulsory education;

(b) by a claimant to a partner or by a partner to a claimant in respect of any child for whom either or any of them is responsible in accordance with regulation 18; or

(c) in respect of child care provided by a relative of a child wholly or mainly in the child’s home.

(8) The care to which paragraph (7) refers may be provided—

(a) out of school hours, by a school on school premises or by an education and library board or an HSS trust—

(i) for children who are not disabled in respect of the period beginning on their twelfth birthday and ending on the day preceding the first Monday in September following their fifteenth birthday, or

(ii) for children who are disabled in respect of the period beginning on their twelfth birthday and ending on the day preceding the first Monday in September following their sixteenth birthday;

(b) by a child care provider approved in accordance with the Tax Credit (New Category of Child Care Provider) Regulations 1999(4); or

(c) by a person prescribed in regulations made pursuant to section 12(4) of the Tax Credits Act.

(9) In—

(a) paragraphs (6) and (8)(a), “the first Monday in September” means the Monday which first occurs in the month of September in any year; and

(b) paragraph (8)(a), “education and library board” means an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986(5).

(10) Relevant child care charges shall be estimated over such period, not exceeding a year, as is appropriate in order that the average weekly charge may be estimated accurately having regard to information as to the amount of that charge provided by the child minder or person providing the care.

(11) For the purposes of paragraph (1)(c) the other member of a couple is incapacitated where—

(a) the claimant’s applicable amount includes—

(i) a disability premium, or

(ii) a higher pensioner premium by virtue of the satisfaction of paragraph 11(2)(b) of Schedule 4,

on account of the other member’s incapacity;

(b) the claimant’s applicable amount would include a disability premium or a higher pensioner premium on account of the other member’s incapacity but for that other member being treated as capable of work by virtue of a determination made in accordance with regulations made under section 167E of the Act(6) (incapacity for work: disqualification, etc.);

(c) the claimant (within the meaning of regulation 2(1)) is, or is treated as, incapable of work and has been so incapable, or has been so treated as incapable, of work in accordance with the provisions of, and regulations made under, Part XIIA of the Act (incapacity for work) for a continuous period of not less than 196 days; and for this purpose any 2 or more separate periods separated by a break of not more than 56 days shall be treated as one continuous period;

(d) there is payable in respect of him one or more of the following pensions or allowances—

(i) long-term incapacity benefit or short-term incapacity benefit at the higher rate under Schedule 4 to the Act(7);

(ii) attendance allowance under section 64 of the Act(8);

(iii) severe disablement allowance under section 68 of the Act(9);

(iv) disability living allowance;

(v) increase of disablement pension under section 104 of the Act;

(vi) a pension increase under a war pension scheme or an industrial injuries scheme which is analogous to an allowance or increase of disablement pension under head (ii), (iv) or (v);

(e) a pension or allowance to which head (ii), (iv), (v) or (vi) of sub-paragraph (d) refers was payable on account of his incapacity but has ceased to be payable in consequence of his becoming a patient, which in this regulation shall mean a person (other than a person who is serving a sentence of imprisonment or detention in a young offenders centre or a juvenile justice centre) who is regarded as receiving free in-patient treatment within the meaning of regulation 2(4) and (5) of the Social Security (Hospital In-Patients) Regulations (Northern Ireland) 2005(10);

(f) sub-paragraph (d) or (e) would apply to him if the legislative provisions referred to in those sub-paragraphs were provisions under any corresponding enactment having effect in Great Britain; or

(g) he has an invalid carriage or other vehicle provided to him by the Department of Health, Social Services and Public Safety(11) under Article 30(1) of the Health and Personal Social Services Order or provided by the Secretary of State under section 5(2)(a) of, and Schedule 2 to, the National Health Service Act 1977(12) or under section 46 of the National Health Service (Scotland) Act 1978(13).

(12) For the purposes of paragraph (11), once paragraph (11)(c) applies to the claimant, if he then ceases, for a period of 56 days or less, to be incapable, or to be treated as incapable, of work, that paragraph shall, on his again becoming so incapable, or so treated as incapable, of work at the end of that period, immediately thereafter apply to him for so long as he remains incapable, or is treated as remaining incapable, of work.

(13) For the purposes of paragraphs (6) and (8)(a), a person is disabled if he is a person—

(a) in respect of whom disability living allowance is payable, or has ceased to be payable solely because he is a patient;

(b) who has been certified as blind and in consequence he is registered as blind in a register maintained by or on behalf of a Health and Social Services Board; or

(c) who ceased to be registered as blind in such a register within the period beginning 28 weeks before the first Monday in September following that person’s fifteenth birthday and ending on the day preceding the first Monday in September following that person’s sixteenth birthday.

(14) For the purposes of—

(a) paragraph (1) a person on maternity leave, paternity leave or adoption leave shall be treated as if he is engaged in remunerative work for the period specified in sub-paragraph (b) (“the relevant period”) provided that—

(i) in the week before the period of maternity leave, paternity leave or adoption leave began he was in remunerative work;

(ii) the claimant is incurring relevant child care charges within the meaning of paragraph (5), and

(iii) he is entitled to statutory maternity pay under section 160 of the Act, statutory paternity pay by virtue of section 167ZA or 167ZB of the Act (14), statutory adoption pay by virtue of section 167ZL of the Act(15), maternity allowance under section 35 of the Act or qualifying support;

(b) sub-paragraph (a) the relevant period shall begin on and include the day on which the person’s maternity leave, paternity leave or adoption leave commences and shall end on—

(i) the date that leave ends;

(ii) if no child care element of working tax credit is in payment on the date that entitlement to maternity allowance, qualifying support, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement ends, or

(iii) if a child care element of working tax credit is in payment on the date that entitlement to maternity allowance, qualifying support, statutory maternity pay, statutory paternity pay or statutory adoption pay ends, the date that entitlement to that award of the child care element of working tax credit ends,

whichever shall occur first.

(15) In paragraph (14)—

“qualifying support” means income support to which that person is entitled by virtue of paragraph 14B of Schedule 1B to the Income Support Regulations(16) (paternity leave);

“child care element” of working tax credit means the element of working tax credit prescribed under section 12 of the Tax Credits Act (child care element).

Average weekly earnings of employed earners

26.—(1) Where a claimant’s income consists of earnings from employment as an employed earner his average weekly earnings shall be estimated by reference to his earnings from that employment—

(a) over a period immediately preceding the benefit week in which the claim is made or treated as made and being a period of—

(i) 5 weeks, if he is paid weekly, or

(ii) 2 months, if he is paid monthly; or

(b) whether or not sub-paragraph (a)(i) or (ii) applies, where a claimant’s earnings fluctuate, over such other period preceding the benefit week in which the claim is made or treated as made as may, in any particular case, enable his average weekly earnings to be estimated more accurately.

(2) Where the claimant has been in his employment for less than the period specified in paragraph (1)(a)(i) or (ii)—

(a) if he has received any earnings for the period that he has been in that employment and those earnings are likely to represent his average weekly earnings from that employment his average weekly earnings shall be estimated by reference to those earnings;

(b) in any other case, the relevant authority shall require the claimant’s employer to furnish an estimate of the claimant’s likely weekly earnings over such period as the appropriate authority may require and the claimant’s average weekly earnings shall be estimated by reference to that estimate.

(3) Where the amount of a claimant’s earnings changes during an award the relevant authority shall estimate his average weekly earnings by reference to his likely earnings from the employment over such period as is appropriate in order that his average weekly earnings may be estimated accurately but the length of the period shall not in any case exceed 52 weeks.

(4) For the purposes of this regulation the claimant’s earnings shall be calculated in accordance with Section 3 of this Part.

Average weekly earnings of self-employed earners

27.—(1) Where a claimant’s income consists of earnings from employment as a self-employed earner his average weekly earnings shall be estimated by reference to his earnings from that employment over such period as is appropriate in order that his average weekly earnings may be estimated accurately but the length of the period shall not in any case exceed a year.

(2) For the purposes of this regulation the claimant’s earnings shall be calculated in accordance with Section 4 of this Part.

Average weekly income other than earnings

28.—(1) A claimant’s income which does not consist of earnings shall, except where paragraph (2) applies, be estimated over such period as is appropriate in order that his average weekly income may be estimated accurately but the length of the period shall not in any case exceed 52 weeks; and nothing in this paragraph shall authorise an authority to disregard any such income other than that specified in Schedule 6.

(2) The period over which any benefit under the benefit Acts is to be taken into account shall be the period in respect of which that benefit is payable.

(3) For the purposes of this regulation income other than earnings shall be calculated in accordance with Section 5 of this Part.

Calculation of average weekly income from tax credits

29.—(1) This regulation applies where a claimant receives a tax credit.

(2) Where this regulation applies, the period over which a tax credit is to be taken into account shall be the period set out in paragraph (3).

(3) Where the instalment in respect of which payment of a tax credit is made is—

(a) a daily instalment, the period is one day, being the day in respect of which the instalment is paid;

(b) a weekly instalment, the period is 7 days, ending on the day on which the instalment is due to be paid;

(c) a 2 weekly instalment, the period is 14 days, commencing 6 days before the day on which the instalment is due to be paid;

(d) a 4 weekly instalment, the period is 28 days, ending on the day on which the instalment is due to be paid.

(4) For the purposes of this regulation “tax credit” means child tax credit or working tax credit.

Calculation of weekly income

30.—(1) For the purposes of regulations 26 and 29, where the period in respect of which a payment is made—

(a) does not exceed a week, the weekly amount shall be the amount of that payment;

(b) exceeds a week, the weekly amount shall be determined—

(i) in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii) in any other case, by dividing the amount of the payment by the number equal to the number of days in the period to which it relates and multiplying the quotient by 7.

(2) For the purposes of regulation 27 the weekly amount of earnings of a claimant shall be determined by dividing his earnings over the assessment period by the number equal to the number of days in that period and multiplying the quotient by 7.

Disregard of changes in tax, contributions etc.

31.  In calculating the claimant’s income the appropriate authority may disregard any legislative change—

(a) in the basic or other rates of income tax;

(b) in the amount of any personal tax relief;

(c) in the rates of social security contributions payable under the Act or in the lower earnings limit or upper earnings limit for Class 1 contributions under the Act, the lower or upper limits applicable to Class 4 contributions under the Act or the amount specified in section 11(4) of the Act (small earnings exception in relation to Class 2 contributions);

(d) in the amount of tax payable as a result of an increase in the weekly rate of Category A, B, C or D retirement pension or any addition thereto or any graduated pension payable under the Act;

(e) in the maximum rate of child tax credit or working tax credit,

for a period not exceeding 30 benefit weeks beginning with the benefit week immediately following the date from which the change is effective.

(1)

Section 30A was inserted by Article 3(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12)) and amended by Article 61 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147 (N.I. 11)) and paragraph 68 of Schedule 24 to the Civil Partnership Act 2004; section 30B was inserted by Article 4(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and amended by paragraphs 14(b) and 18(3) of Schedule 2 to the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)), paragraph 21 of Schedule 8 to the Welfare Reform and Pensions (Northern Ireland) Order 1999, Schedule 6 to the Tax Credits Act 2002 and paragraph 69 of Schedule 24 to the Civil Partnership Act 2004; section 30C was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and amended by paragraph 37 of Schedule 3 to the Tax Credits Act 2002; section 30D was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994; section 30DD was inserted by Article 60 of the Welfare Reform and Pensions (Northern Ireland) Order 1999 and section 30E was inserted by Article 5(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994

(2)

Regulation 4ZA was inserted by regulation 4 of S.R. 1996 No. 199 and amended by regulation 5(2) of S.R. 1997 No. 412, regulation 5(3) of S.R. 2000 No. 71 and the Schedule to S.R. 2000 No. 241 and Schedule 1B was inserted by Schedule 1 to S.R. 1996 No. 199 and paragraph 14 was amended by regulation 2 of S.R. 2002 No. 332

(3)

S.R. 1975 No. 113; regulation 8B was inserted by regulation 2(6) of S.R. 1996 No. 430 and amended by regulation 3 of S.R. 2000 No. 404 and regulation 2(2) of S.R. 2003 No. 151

(4)

S.I. 1999/3110

(5)

S.I. 1986/594 (N.I. 3)

(6)

Part XIIA, which includes section 167E, was inserted by Articles 7 and 8(1) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994; section 167E was amended by paragraph 57 of Schedule 6 to the Social Security (Northern Ireland) Order 1998 (S.I. 1998/1506 (N.I. 10))

(7)

In Schedule 4 paragraph 2 was substituted by Article 4(2) of the Social Security (Incapacity for Work) (Northern Ireland) Order 1994

(8)

Section 64 was amended by Article 63(1) of the Welfare Reform and Pensions (Northern Ireland) Order 1999

(9)

Section 68 was amended by Article 11 of, and paragraph 18 of Schedule 1 to, the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 and regulation 2(2) of S.R. 1994 No. 370 and repealed by Schedule 10 to the Welfare Reform and Pensions (Northern Ireland) Order 1999, subject to savings in Article 4 of S.R. 2000 No. 332 (C. 14)

(10)

S.R. 2005 No. 580

(11)

See Article 3(6) of the Departments (Northern Ireland) Order 1999 (S.I. 1999/283 (N.I. 1))

(12)

1977 c. 49

(13)

1978 c. 29

(14)

Sections 167ZA and 167ZB were inserted by Article 5 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))

(15)

Section 167ZL was inserted by Article 6 of the Employment (Northern Ireland) Order 2002

(16)

Schedule 1B was inserted by Schedule 1 to S.R. 1996 No. 199; paragraph 14B was inserted by regulation 2(5) of S.R. 2002 No. 363 and amended by paragraph 19 of Schedule 1 to S.R. 2003 No. 195 and regulation 2(3) of S.R. 2003 No. 338