The Employment and Support Allowance Regulations (Northern Ireland) 2008

CHAPTER 8 N.I. [F1 Child maintenance and liable relatives payments]

Textual Amendments

F1 Words in Pt. 10 Ch. 8 heading substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(16)

Interpretation N.I.

119.  In this Chapter—

[F2 “child maintenance” means any payment towards the maintenance of a child or young person, including any payment made voluntarily and payments made under—

(a)

the Child Support Act 1991;

(b)

the Child Support (Northern Ireland) Order 1991;

(c)

a court order;

(d)

a consent order;

(e)

a maintenance agreement registered for execution in the Books of Council and Session or the sheriff court books;]

“claimant” includes a young claimant;

[F3 “claimant’s family” shall be construed in accordance with section 133 of the Contributions and Benefits Act (interpretation of Part 7 and supplementary provisions);

“housing costs” means those costs which may be met under paragraph 1(1) of Schedule 6;]

“liable relative” means—

(a)

a spouse, former spouse, civil partner or former civil partner of a claimant or of a member of the claimant’s family;

(b)

a parent of a child or young person who is a member of the claimant’s family or of a young claimant;

(c)

a person who has not been adjudged to be the father of a child or young person who is a member of the claimant’s family or of a young claimant where that person is contributing towards the maintenance of that child, young person or young claimant and by reason of that contribution the claimant may reasonably be treated as the father of that child, young person or young claimant;

(d)

a person liable to maintain another person by virtue of section 74(6)(c) of the Administration Act (liability to maintain) where the latter is the claimant or a member of the claimant’s family,

and, in this definition, a reference to a child’s, young person’s or young claimant’s parent includes any person in relation to whom the child, young person or young claimant was treated as a child or a member of the family;

[F4 “ordinary clothing and footwear” means clothing and footwear for normal daily use but does not include school uniforms;]

“payment” means a periodical payment or any other payment made by or derived from a liable relative F5 ... but it does not include any payment—

(a)

arising from a disposition of property made in contemplation of, or as a consequence of—

(i)

an agreement to separate,

(ii)

any proceedings for judicial separation, divorce or nullity of marriage, or

(iii)

any proceedings for separation, dissolution or nullity in relation to a civil partnership;

(b)

made after the death of the liable relative;

(c)

made by way of a gift but not in aggregate or otherwise exceeding £250 in the period of 52 weeks beginning with the date on which the payment, or if there is more than one such payment the first payment, is made; and, in the case of a claimant who continues to be in receipt of an income-related allowance at the end of the period of 52 weeks, this provision is to continue to apply thereafter with the modification that any subsequent period of 52 weeks is to begin with the first day of the benefit week in which the first payment is made after the end of the previous period of 52 weeks;

(d)

[F6 made to a third party, or in respect of a third party, unless the payment is—

(i)

in relation to the claimant or the claimant’s family, and

(ii)

the payment is in respect of food, ordinary clothing or footwear, fuel, rent or rates, housing costs or water charges;]

where having regard to the purpose of the payment, the terms under which it is made and its amount it is unreasonable to take it into account;

(e)

in kind;

(f)

to, or in respect of, a child or young person who is to be treated as not being a member of the claimant’s household under regulation 156 (circumstances in which a person is to be treated as being or not being a member of the same household);

(g)

which is not a periodical payment, to the extent that any amount of that payment—

(i)

has already been taken into account under this Part by virtue of a previous claim or determination,

(ii)

has been recovered under section 72 of the Administration Act(1) (income support and other payments) or is currently being recovered, or

(iii)

at the time the determination is made, has been used by the claimant except where the claimant has deprived himself of that amount for the purpose of securing entitlement to an income-related allowance or increasing the amount of that allowance;

“periodical payment” means—

(a)

a payment which is made or is due to be made at regular intervals F7 ...;

(b)

in a case where the liable relative has established a pattern of making payments at regular intervals, any such payment;

(c)

any payment [F8 , after the appropriate disregard under paragraph 57 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) has been applied to it, that does not exceed] the amount of an income-related allowance payable had that payment not been made;

(d)

any payment representing a commutation of payments to which paragraph (a) or (b) applies whether made in arrears or in advance,

but does not include a payment due to be made before the first benefit week pursuant to the claim which is not so made;

“young claimant” means a person aged 16 or over but under the age of 20 who makes a claim for an income-related allowance.

Textual Amendments

F2 Words in reg. 119 inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(a)

F3 Words in reg. 119 inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(b)

F4 Words in reg. 119 inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(c)

F5 Words in reg. 119 omitted (27.10.2008) by virtue of The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(d)(i)

F6 Words in reg. 119 substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(d)(ii)

F7 Words in reg. 119 omitted (27.10.2008) by virtue of The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(e)(i)

F8 Words in reg. 119 substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(17)(e)(ii)

Commencement Information

I1 Reg. 119 in operation at 27.10.2008, see reg. 1(1)

Treatment of [F9 child maintenance or] liable relative payments N.I.

120.  Subject to regulation 121 and [F10 paragraph 57 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings)] , a payment—

(a) to the extent that it is not a payment of income, is to be treated as income;

(b) is to be taken into account in accordance with the following provisions of this Chapter.

Textual Amendments

F9 Words in reg. 120 heading inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(18)(a)

F10 Words in reg. 120 substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(18)(b)

Commencement Information

I2 Reg. 120 in operation at 27.10.2008, see reg. 1(1)

Disregard of payments treated as not relevant income N.I.

121.  Where the Department treats any payment as not being relevant income for the purposes of section 72A of the Administration Act(2) (payment of benefit where maintenance payments collected by Department), that payment is to be disregarded in calculating a claimant’s income.

Commencement Information

I3 Reg. 121 in operation at 27.10.2008, see reg. 1(1)

Period over which periodical payments are to be taken into account N.I.

122.—(1) The period over which a periodical payment is to be taken into account is to be—

(a) in a case where the payment is made at regular intervals, a period equal to the length of that interval;

(b) in a case where the payment is due to be made at regular intervals but is not so made, such number of weeks as is equal to the number (and any fraction is to be treated as a corresponding fraction of a week) obtained by dividing the amount of that payment by the weekly amount of that periodical payment as calculated in accordance with regulation 124(4) (calculation of the weekly amount of a liable relative payment);

(c) in any other case, a period equal to a week.

(2) The period under paragraph (1) is to begin on the date on which the payment is treated as paid under regulation 125 (date on which a liable relative payment is to be treated as paid).

Commencement Information

I4 Reg. 122 in operation at 27.10.2008, see reg. 1(1)

Period over which payments other than periodical payments are to be taken into account N.I.

[F11 123.— (1) The period over which a payment other than a periodical payment (a “non-periodical payment”) is to be taken account shall be determined as follows.

(2) Except in a case where paragraph (4) applies, the number of weeks over which a non-periodical payment is to be taken into account shall be equal to the number obtained by dividing that payment by the amount referred to in paragraph (3).

(3) The amount is the aggregate of £2 and—

(a) the amount of employment and support allowance that would be payable had no payment been made; and

(b) where applicable, the maximum amount of disregard that would apply to the payment under paragraph 57 of Schedule 8.

(4) This paragraph applies in a case where a liable relative makes a periodical payment and a non-periodical payment concurrently and the weekly amount of the periodical payment (as calculated in accordance with regulation 124) is less than B.

(5) In a case where paragraph (4) applies, the non-periodical payment shall, subject to paragraphs (6) and (7), be taken into account over a period of the number of weeks equal to the number obtained by applying the formula—

(6) If the liable relative ceases to make periodical payments, the balance (if any) of the non-periodical payment shall be taken into account over the number of weeks equal to the number obtained by dividing that balance by the amount referred to in paragraph (3).

(7) If the amount of any subsequent periodical payment varies, the balance (if any) of the non-periodical payment shall be taken into account over a period of the number of weeks equal to the number obtained by applying the formula—

(8) The period under paragraph (2) or (5) shall begin on the date on which the payment is treated as paid under regulation 125 (date on which a child maintenance or liable relative payment is to be treated as paid) and the period under paragraph (6) or (7) shall begin on the first day of the benefit week in which the cessation or variation of the periodical payment occurred.

(9) Any fraction which arises by applying a calculation or formula referred to in this regulation shall be treated as a corresponding fraction of a week.

(10) In paragraphs (4) to (7)—

A	=	the amount of the non-periodical payment;
B	=	the aggregate of £2 and the amount of employment and support allowance that would be payable had the periodical payment not been made and, where applicable, the maximum disregard under paragraph 57 of Schedule 8;
C	=	the weekly amount of the periodical payment;
D	=	the balance (if any) of the non-periodical payment;
E	=	the weekly amount of any subsequent periodical payment.]

Textual Amendments

F11 Reg. 123 substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(19)

Commencement Information

I5 Reg. 123 in operation at 27.10.2008, see reg. 1(1)

Calculation of the weekly amount of a [F12 child maintenance or] liable relative payment N.I.

124.—(1) Where a periodical payment is made or is due to be made at intervals of one week, the weekly amount is to be the amount of that payment.

(2) Where a periodical payment is made or is due to be made at intervals greater than one week and those intervals are monthly, the weekly amount is to be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(3) Where a periodical payment is made or is due to be made at intervals and those intervals are neither weekly nor monthly, the weekly amount is to be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(4) Where a payment is made and that payment represents a commutation of periodical payments whether in arrears or in advance, the weekly amount is to be the weekly amount of the individual periodical payments so commuted as calculated under paragraphs (1) to (3) as appropriate.

(5) The weekly amount of a payment to which regulation 123 (period over which payments other than periodical payments are to be taken into account) applies, is to be equal to the amount of the divisor used in calculating the period over which the payment or, as the case may be, the balance is to be taken into account.

Textual Amendments

F12 Words in reg. 124 heading inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(20)

Commencement Information

I6 Reg. 124 in operation at 27.10.2008, see reg. 1(1)

Date on which a [F13 child maintenance or] liable relative payment is to be treated as paid N.I.

125.—(1) A periodical payment is to be treated as paid—

(a) in the case of a payment which is due to be made before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is due to be paid unless, having regard to the manner in which an income-related allowance is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(2) Subject to paragraph (3), any other payment is to be treated as paid—

(a) in the case of a payment which is made before the first benefit week pursuant to the claim, on the day in the week in which it is paid which corresponds to the first day of the benefit week;

(b) in any other case, on the first day of the benefit week in which it is paid unless, having regard to the manner in which an income-related allowance is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(3) Any other payment paid on a date which falls within the period in respect of which a previous payment is taken into account, not being a periodical payment, is to be treated as paid on the first day following the end of that period.

Textual Amendments

F13 Words in reg. 125 heading inserted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(21)

Commencement Information

I7 Reg. 125 in operation at 27.10.2008, see reg. 1(1)

Liable relative payments to be treated as capital N.I.

F14 126.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F14 Regs. 126-130 omitted (27.10.2008) by virtue of The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(22)

(1)

Section 72 was amended by paragraph 33 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15)) and paragraph 11 of Schedule 2 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.))

(2)

Section 72A was inserted by Article 18 of the Child Support (Northern Ireland) Order 1995 (S.I. 1995/2702 (N.I. 13)) and amended by paragraph 112 of Schedule 24 to the Civil Partnership Act 2004 (c. 33) and paragraph 4(9) of Schedule 3 to the Welfare Reform Act (Northern Ireland) 2007 (c. 2 (N.I.))