The Social Security (Overlapping Benefits) Regulations 1979

Citation and commencement

1.  These regulations may be cited as the Social Security (Overlapping Benefits) Regulations 1979 and shall come into operation on 29th June 1979.

Interpretation

2.—(1) In these regulations, unless the context otherwise requires—

“the Act” means the Social Security Act 1975;

“the Pensions Act” means the Social Security Pensions Act 1975;

“benefit under Chapters I and II of Part II of the Act” includes benefit treated as included in Chapter I of Part II of the Act by virtue of section 66(2)(b) of the Pensions Act;

“the Child Benefit Act” means the Child Benefit Act 1975;

“child benefit” means benefit under Part I of the Child Benefit Act;

“death benefit” means any benefit, pension or allowance which, apart from these regulations, is payable (whether under the Act or otherwise) in respect of the death of any person;

“the deceased” means , in relation to any death benefit, the person in respect of whose death that benefit, apart from these regulations, is payable;

“dependency benefit” means that benefit, pension or allowance which, apart from these regulations, is payable (whether under the Act or otherwise) to a person in respect of another person who is a child or an adult dependant; it includes child's special allowance and any personal benefit by way of pension payable to a child under any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme but does not include benefit under section 73 of the Act (allowances to a woman who has care of children of person who died as a result of an industrial accident);

“disablement pension” includes a disablement payment on a pension basis and retired pay or pension in respect of any disablement, wound, injury or disease;

“personal benefit” means any benefit, pension or allowance which is not a dependency benefit and which is payable to any person;

“Personal Injuries Scheme” means any scheme made under the Personal Injuries (Emergency Provisions) Act 1939 or under the Pensions (Navy, Army, Air Force and Mercantile Marine) Act 1939;

“Pneumoconiosis and Byssinosis Benefit Scheme” means any scheme made under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975;

“Service Pensions Instrument” means those provisions and only those provisions of any Royal Warrant, Order in Council or other instrument (not being a 1914-1918 War Injuries Scheme) under which a death or a disablement pension (not including a pension calculated or determined by reference to length of service) and allowances for dependants payable with either such pension may be paid out of public funds in respect of any death or disablement, wound, injury or disease due to service in the naval, military or air forces of the Crown or in any nursing service or other auxiliary service of any of the said forces or in the Home Guard or in any other organisation established under the control of the Defence Council or formerly established under the control of the Admiralty, the Army Council or the Air Council;

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable out of public funds by a Government department or by or on behalf of the Manpower Services Commission to a person for his maintenance, or in respect of any dependant of his, for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of the said Commission; but it does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that he is following a course of full-time education or is training as a teacher;

“treatment allowance” means an allowance payable under a Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme only to a person undergoing a course of medical, surgical or rehabilitative treatment in consequence of a disablement in respect of which a pension may be or has been paid, or an allowance payable to any such person pending the determination of the question whether he is entitled to receive such a pension;

“unemployability supplement” includes an increase on account of unemployability under—

(a)

any Pneumoconiosis and Byssinosis Benefit Scheme; and

(b)

any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme;

“war pension death benefit” means a death benefit by way of pension or allowance under any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme, but does not include a rent allowance or a grant payable by reason of the beneficiary being in receipt of a pension and being a specific age which is not less than 65 or a pension or an allowance calculated by reference to the necessities of the beneficiary;

“1914-1918 War Injuries Scheme” means any scheme made under the Injuries in War (Compensation) Act 1914 or under the Injuries in War Compensation Act 1914 (Session 2) or any Government scheme for compensation in respect of persons injured in any merchant ship or fishing vessel as the result of hostilities during the 1914-1918 War.

(2) For the purposes of these regulations, unless otherwise specified, additional component payable by virtue of the Act or the Pensions Act shall be deemed to include any increase so far as attributable to any additional component or to any increase by virtue of section 126A of the Act or paragraph 4A of Schedule 1 to the Pensions Act or to any increase of graduated retirement benefit and shall be treated as a separate personal benefit included in Chapter I of Part II of the Act.

Special provisions for widow's benefit and invalidity pension

3.—(1) This regulation applies where, apart from these regulations, there is payable for the same period to a person under pensionable age both—

(a) an invalidity pension; and

(b) a widowed mother's allowance or widow's pension (hereafter referred to in this regulation as “the widow's benefit”).

(2) The total amount payable in respect of these benefits under this regulation shall be—

(a) the sum of the two basic components up to and not exceeding the rate specified in section 6(1)(a) of the Pensions Act; and

(b) the sum of the two additional components up to and not exceeding the maximum for the time being prescribed under section 9(3) of the Pensions Act.

(3) Subject to paragraph (4)—

(a) where the beneficiary has made application, before the payment is made, that the total amount payable should be treated as being made up of the rate of the invalidity pension, any balance being the widow's benefit, it shall be so treated;

(b) in any other case, that amount shall be treated as being made up of the rate of the widow's benefit, any balance being the invalidity pension.

(4) For the purposes of the remainder of these regulations (other than regulation 6(5)), which shall apply after adjustment has been made under this regulation, the total amount payable under this regulation shall be treated as a single long-term benefit payable on a weekly basis.

Adjustment of personal benefit under Chapters I and II of Part II of the Act where other personal benefit under those Chapter is payable

4.—(1) Subject to paragraphs (2), (3) and (4) and regulation 12, where 2 or more personal benefits (whether of the same or a different description) are, or but for this regulation would be, payable under Chapters I and II of Part II of the Act (which relate to benefits other than industrial injuries benefits) for any period, an adjustment shall be made in accordance with paragraph (5).

(2) Paragraph (1) shall not require the adjustment of, or by reference to—

(a) a death grant;

(b) a maternity grant;

(c) any other sum paid otherwise than in respect of a period;

(d) an earnings-related supplement or earnings-related addition to any benefit (except as provided by regulation 5 and in the case of non-contributory invalidity pension or invalid care allowance);

(e) an attendance allowance;

(f) additional component or graduated retirement benefit (except as provided by paragraph (4));

(g) mobility allowance.

(3) Paragraph (1) shall require an adjustment of age addition only by reference to another age addition.

(4) Where there are payable 2 or more personal benefits to which this regulation applies with which additional component or graduated retirement benefit is payable as part of the rate of benefit or as an increase of benefit, or, in a case where the person entitled to receive the benefits is over pensionable age and one or more of the benefits includes either additional component or graduated retirement benefit while another of the benefits is payable at the rate referred to in section 14(6) or 15(4) of the Act, then the following provisions shall apply—

(a) for the purposes of adjustment falling to be made under paragraph (5) that additional component or graduated retirement benefit shall be treated as part of the personal benefit with which it is so payable;

(b) the provisions of sub-paragraph (a) shall apply before any further adjustment under these regulations; and

(c) for the purpose of any such further adjustment, the beneficiary shall be treated as having a single long-term benefit inclusive of whichever before adjustment under sub-paragraph (a) is the highest of the following amounts—

(i) the highest additional component payable, or

(ii) the highest graduated retirement benefit payable, or

(iii) the highest total of additional component and graduated retirement benefit payable together as part of the rate of and as an increase of any of those personal benefits.

(5) Where an adjustment falls to be made in accordance with this paragraph and—

(a) one of the benefits is a contributory benefit and one is a non-contributory benefit, the non-contributory benefit shall be adjusted by deducting from it the amount of the contributory benefit and only the balance, if any, shall be payable.

(b) sub-paragraph (a) above does not apply, if one of the benefits is payable on a weekly basis—

(i) where the beneficiary has made application, before the payment is made, to have the benefit payable on a weekly basis adjusted, it shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable,

(ii) in any other case, the benefit not payable on a weekly basis shall be adjusted by deducting from it the amount of the other benefit and only the balance of it, if any, shall be payable;

(c) sub-paragraphs (a) and (b) above do not apply, the amount payable in respect of the benefits in question shall be an amount equal to that which would but for this provision be payable in respect of—

(i) one of them, if they would have been payable at the same rate, or

(ii) the higher or highest of them, if they would have been payable at different rates,

so however that in a case where more than 2 benefits would be payable then the total amount payable shall not exceed the amount which would be ascertained under sub-paragraph (c).

Special provisions for earnings-related supplements and earnings-related addition to widow's allowance

5.—(1) Where 2 or more earnings-related supplements to any benefits under the Act would apart from this regulation be payable for the same period, for the purposes of regulation 4(1) each such supplement shall be treated as part of the benefit it supplements.

(2) Where an earnings-related addition to widow's allowance would apart from this regulation be payable for the same period as any other benefit under the Act which is calculated whether wholly or in part by reference to the contributions of a husband who has died, that other benefit shall be adjusted by deducting from it the amount of the earnings-related addition, provided that where the widow is also entitled for the same period to graduated retirement benefit or additional component, or both of them, by virtue of her own contributions and the contributions of the husband who has died, the graduated retirement benefit or additional component to be adjusted shall be only that part which is payable by virtue of the contributions of the husband who has died.

(3) Paragraph (1) shall not apply where apart from this regulation a widow's allowance would be payable for the same period as 2 or more other benefits under the Act; in such a case the earnings-related supplement to any of those other benefits shall be adjusted so that only the higher or highest of them is payable.

(4) For the purposes of paragraph (2), additional component or graduated retirement benefit, where it is, or but for this regulation would be, payable as part of the rate of or as an increase of another personal benefit, shall be treated as part of the personal benefit with which it is so payable.

Adjustments of personal benefit under Chapters I and II of Part II of the Act by reference to industrial injuries benefits and benefits not under the Act, and adjustments of industrial injuries benefits

6.—(1) Subject to paragraph (5) and regulation 12, where a personal benefit which is specified in column (1) of Schedule 1 to these regulations (“the column (1) benefit”) is, or but for this regulation would be payable to a person for the same period as a personal benefit which is specified in the corresponding paragraph of column (2) of that Schedule (“the column (2) benefit”) the column (1) benefit shall be adjusted by deducting from it the amount of the column (2) benefit and, subject to any further adjustment under regulation 4, only the balance, if any, shall be payable.

(2) Any reference in paragraph (1), or in Schedule 1 to these regulations, to a benefit, other than a training allowance, does not include an earnings-related supplement or earnings-related addition to it.

(3) Paragraph (1) and Schedule 1 to these regulations shall have effect in relation to an attendance allowance, and to any benefit by reference to which it is to be adjusted, as requiring adjustment where both that allowance and the benefit are payable in respect of the same person (whether or not one or both of them are payable to him).

(4) Paragraph (1) and Schedule 1 to these regulations shall not require the adjustment of, or by reference to, additional component or graduated retirement benefit.

(5) Where—

(a) the column (2) benefit is industrial death benefit or war pension death benefit in either case payable to the beneficiary as the surviving spouse,

and

(b) the column (1) benefit is Category A retirement pension or invalidity benefit which—

(i) is not calculated by reference to the rate specified in section 15(3)(b) or 16(3)(b) of the Pensions Act, or

(ii) has a basic component by virtue of the beneficiary's own contributions (but not by virtue of those of a former spouse) which consists of either the rate specified in section 6(1)(a) of the Pensions Act or some percentage of that rate prescribed by regulations made under section 33(2) of the Act,

the adjustment under paragraph (1) shall not reduce that Column (1) benefit to less than the appropriate rate in sub-paragraph (b)(ii), together with, if any, increments payable under paragraph 2 of Schedule 1 to the Pensions Act and increase under section 28(7) of the Act.

Adjustment of dependency benefit in respect of a child where other dependency benefit is payable for that child

7.—(1) Subject to regulation 12, where dependency benefit under the Act is payable, or but for this regulation would be payable, to any person in respect of a child and any other dependency benefit specified in paragraph (2) is payable to that or any other person in respect of that child for the same period, an adjustment shall be made in accordance with regulation 4(5) so however that where one of the dependency benefits is death benefit under section 70 by way of an allowance, or is a guardian's allowance under section 38 (the other dependency benefit not being benefit under either the said section 38 or 70) the adjustment shall be made in accordance with paragraph (4) of this regulation.

(2) Subject to paragraph (3), the other dependency benefit referred to in paragraph (1) is any dependency benefit under—

(a) the Act;

(b) any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme;

(c) any Pneumoconiosis and Byssinosis Benefit Scheme;

(d) any scheme, being a benefit by way of training allowance.

(3) Sub-paragraph (b) of paragraph (2) does not include an allowance payable for the purpose of the child's education and for the purposes of that sub-paragraph—

(a) any personal benefit by way of a pension payable to a child shall be treated as a dependency benefit payable to another person in respect of that child;

(b) any dependency benefit payable as part of a disablement pension shall be disregarded unless it is payable as an increase of an unemployability supplement.

(4) Where one of the dependency benefits is death benefit under section 70 by way of an allowance or is a guardian's allowance, except in a case to which paragraph (5) applies, the other dependency benefit shall be adjusted by deducting from it the amount of that death benefit or, as the case may be, guardian's allowance, and only the balance, if any, shall be payable.

(5) Where a death benefit by way of an allowance under section 70 or a guardian's allowance is payable to a person in respect of a child and any other dependency benefit specified in sub-paragraph (b) or (d) of paragraph (2) is payable to that or any other person in respect of that child for the same period, the death benefit or, as the case may be, the guardian's allowance shall be adjusted by deducting from it the other benefit and only the balance, if any, shall be payable.

Child benefit

8.  Benefit under the Act shall not be required to be adjusted by reference to child benefit other than where an increase of child benefit is payable to a person who—

(a) either has no spouse or is not residing with his spouse; and

(b) is not living with any other person as his spouse,

and for the same period, in respect of the same child, any benefit or allowance or increase of a benefit or allowance under the Act is or, but for this regulation, would be payable to a beneficiary, the weekly rate of that benefit or allowance or increase thereof shall be reduced by the amount of the said increase of child benefit.

Adjustment of dependency benefit in respect of an adult dependant where other dependency benefit is payable

9.—(1) Subject to paragraph (3) and regulation 12, where for any period any dependency benefit under the Act is, or but for this regulation would be, payable to any person in respect of an adult dependant and any other dependency benefit specified in paragraph (2) is payable for that period to—

(a) that person in respect of that or any other adult dependant; or

(b) any other person in respect of that dependant,

an adjustment shall be made in accordance with regulation 4(5).

(2) The other dependency benefit referred to in paragraph (1) is any dependency benefit under—

(a) the Act;

(b) any Personal Injuries Scheme, Service Pensions Instrument or 1914-1918 War Injuries Scheme;

(c) any Pneumoconiosis and Byssinosis Benefit Scheme;

(d) any scheme being a benefit by way of training allowance.

(3) Paragraph (1) shall not require an adjustment to be made where one of the dependency benefits in question is an increase of benefit under section 44(3)(c), 46(2) or 66(1)(d) in respect of a person who is employed by the beneficiary but is not residing with him and the other such benefit is payable to a person other than the beneficiary.

(4) For the purposes of paragraph (2)(b) any dependency benefit which is payable with a disablement pension shall be disregarded unless it is payable as an increase of an unemployability supplement.

Adjustment of dependency benefit where certain personal benefit is payable

10.—(1) Subject to the following provisions of this regulation, where a dependency benefit under the Act is payable for the same period as one or more of the following personal benefits is, or but for the provisions of these regulations would be, payable to the dependant—

(a) a personal benefit under Chapter I or II of Part II of the Act (other than a benefit specified in regulation 4(2)(a)(b)(c)(e) or (g);

(b) an unemployability supplement;

(c) injury benefit;

(d) industrial death benefit;

(e) war pension death benefit;

(f) a training allowance,

the dependency benefit shall be adjusted in accordance with paragraph (2).

(2) Where the weekly rate of the personal benefit (or, if more than one, the aggregate weekly rate payable after any adjustment made by virtue of regulations 4(1) or 6(1)—

(a) is equal to or exceeds the weekly rate of the dependency benefit, the dependency benefit shall not be paid;

(b) in any other case, the weekly rate of the dependency benefit payable shall be adjusted, if necessary, so that it does not exceed the difference between the weekly rate of the personal benefit and that of the unadjusted dependency benefit.

(3) Paragraph (1) does not apply to an increase of benefit under section 44(3)(c), 46(2) or 66(1)(d) in respect of a person who is employed by, but is not residing with, the beneficiary.

(4) Where the personal benefit to which paragraph (1) applies is sickness benefit payable to a married woman which falls to be adjusted by virtue of regulations under section 85(1)(b) (hospital in-patients) and the dependency benefit would be payable to her husband, the rate of sickness benefit to be taken into account for the purposes of paragraph (1) shall be the rate after it has been so adjusted.

Dependency benefit under the Act not to be payable if a training allowance is payable

11.  Dependency benefit under the Act shall not be payable to any person for any period in respect of which any personal benefit by way of training allowance is payable to him so however that this regulation shall not apply where such personal benefit has itself been adjusted by reference to any benefit under the Act.

Special provision relating to the adjustment of non-contributory invalidity pension and invalid care allowance

12.  In any case where personal benefit or dependency benefit by way of a non-contributory invalidity pension or an invalid care allowance would, in accordance with the provisions of regulations 4, 6, 7 or 9, fall to be adjusted by reference to any other personal benefit (other than additional component or graduated retirement benefit) or dependency benefit, it shall be reduced by the amount which is, or but for these regulations would be, payable by way of that other benefit both as personal benefit and as dependency benefit, so however that the amount payable by way of a non-contributory invalidity pension or an invalid care allowance and that other benefit shall in no case be less than the sum of the amounts which, but for any adjustment, would have been payable by way of a non-contributory invalidity pension or an invalid care allowance as personal benefit and dependency benefit.

Increases in respect of more than one dependant to be treated as separate dependency benefits

13.  For the purposes of these regulations, where dependency benefit by way of an increase is payable in respect of more than one person (whether a child or adult dependant), each such increase shall be treated as a separate dependency benefit.

Provisions for adjusting benefit for part of a week

14.—(1) Where an adjustment falls to be made under these regulations for a part of a week, any benefit (whether under the Act or otherwise) which is not payable for that week at a daily rate equal to one-sixth of the appropriate weekly rate for each day of the week except Sunday, shall be deemed to be so payable.

(2) Where the benefit in question is unemployment benefit, sickness benefit, invalidity benefit or non-contributory invalidity pension and the beneficiary is a person in whose case the day to be disregarded in accordance with regulations made under section 17(1)(e) is a day other than Sunday, the reference in paragraph (1) to Sunday shall be construed as a reference to that other day.

(3) In paragraph (1) “appropriate weekly rate” means the weekly rate at which the benefit in question would be payable but for these regulations.

Priority between persons entitled to increase of benefit

15.—(1) Subject to paragraphs (5) and (6), the following provisions shall apply for the purpose of determining priority as between two persons entitled to an increase of benefit under the Act in respect of a third person.

(2) Where, but for the provisions of this paragraph, a man and his wife would both be entitled to an increase of retirement pension (being an increase of Category A or Category C retirement pension in his case and a Category B or Category C retirement pension in hers) in respect of the same child or children, that man shall, and his wife shall not, be entitled to the increase; and he shall be treated as so entitled for the purposes of this paragraph during any period for which he would be entitled but for the operation of any provision of the Act, with the exception of section 82(5)(b) (disqualification while undergoing imprisonment or detention), disqualifying him for the receipt of benefit.

(3) Subject to paragraphs (2), (5) and (6), where, but for the provisions of this paragraph, more than one person would be entitled to an increase of benefit in respect of the same child for the same period—

(a) in a case where one of those persons has been awarded child benefit in respect of the child for that period, that one of them shall be entitled to the said increase;

(b) in the case where sub-paragraph (a) does not apply but where one of those persons is entitled otherwise than by virtue of regulations made under Schedule 20 to the Act to child benefit in respect of the child for that period, that one of them shall be entitled to the said increase;

(c) in a case where neither sub-paragraph (a) nor sub-paragraph (b) applies but where the child is living with one and no other of those persons for that period, that one of them with whom the child is living shall be entitled to the said increase;

(d) in a case where none of the preceding sub-paragraphs applies but where one of those persons is a parent of the child, that one of them shall be entitled to the said increase.

(4) Subject to paragraphs (5) and (6), where, but for the provisions of this paragraph, more than one person would be entitled to an increase of benefit in respect of an adult dependant for the same period—

(a) in a case where one of those persons is the spouse of the adult dependant that one of them shall be entitled to the said increase;

(b) in a case where sub-paragraph (a) above does not apply that one of them with whom the adult dependant is residing shall be entitled to the said increase.

(5) Nothing in paragraphs (3) and (4) shall prevent a written notice signed by one or, as the case may be, a majority of the said persons designating another of them as the person to be entitled to the increase, being sent to the Secretary of State; so however that such notice shall not be effective to confer entitlement to an increase in respect of any period for which such increase has already been paid to someone other than the person so designated.

(6) Nothing in paragraphs (3) and (4) shall prevent a person who, in accordance with any of those paragraphs, is not entitled to an increase from being paid an amount equivalent to the amount, if any, by which the increase which would otherwise have been paid to such person exceeds the increase payable to the person entitled by virtue of any of the said paragraphs.

Persons to be treated as entitled to benefit for certain purposes

16.  Any person who would be entitled to any benefit under the Act but for these regulations shall be treated as if he were entitled thereto for the purpose of any rights or obligations under the Act and the regulations made under it (whether of himself or some other person) which depend on his being so entitled, other than for the purposes of the right to payment of that benefit.

Prevention of double adjustments

17.  No adjustment shall be made under regulations 6 to 10 to any benefit under the Act by reference to any other benefit, whether under the Act or otherwise, where the latter benefit has itself been adjusted by reference to the former benefit.

Revocations

18.  The regulations specified in column (1) of Schedule 2 to these regulations are hereby revoked to the extent stated in Column (3) of that Schedule.

Patrick Jenkin

Secretary of State for Social Services

29th May 1979