The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006

Diminishing notional capital rule

48.—(1) Where a claimant is treated as possessing capital under regulation 47(1) (notional capital), the amount which he is treated as possessing—

(a) in the case of a week that is subsequent to—

(i) the relevant week in respect of which the conditions set out in paragraph (2) are satisfied; or

(ii) a week which follows that relevant week and which satisfies those conditions,

shall be reduced by an amount determined under paragraph (3);

(b) in the case of a week in respect of which paragraph (1)(a) does not apply but where—

(i) that week is a week subsequent to the relevant week; and

(ii) that relevant week is a week in which the condition in paragraph (4) is satisfied,

shall be reduced by the amount determined under paragraph (4).

(2) This paragraph applies to a benefit week where the claimant satisfies the conditions that—

(a) he is in receipt of housing benefit; and

(b) but for regulation 47(1), he would have received an additional amount of housing benefit in that week.

(3) In a case to which paragraph (2) applies, the amount of the reduction for the purposes of paragraph (1)(a) shall be equal to the aggregate of—

(a) the additional amount to which paragraph (2)(b) refers;

(b) where the claimant has also claimed state pension credit, the amount of any state pension credit or any additional amount of state pension credit to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 21(1) of the State Pension Credit Regulations 2002 F1 (notional capital);

(c) where the claimant has also claimed council tax benefit, the amount of any council tax benefit or any additional amount of council tax benefit to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 39(1) of the Council Tax Benefit Regulations 2006 or regulation 37(1) (notional capital)of the Council Tax Benefit (Persons who have obtained the qualifying age for state pensions credit) Regulations 2006;

(d) where the claimant has also claimed a jobseeker's allowance, the amount of an income-based jobseeker's allowance to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 113 of the Jobseeker's Allowance Regulations F2 (notional capital)[F3 ; [F4 and]

(e) where the claimant has also claimed an employment and support allowance, the amount of an income-related employment and support allowance to which he would have been entitled in respect of the benefit week to which paragraph (2) refers but for the application of regulation 115 of the Employment and Support Allowance Regulations (notional capital).]

(4) Subject to paragraph (5), for the purposes of paragraph (1)(b) the condition is that the claimant would have been entitled to housing benefit in the relevant week but for regulation 47(1), and in such a case the amount of the reduction shall be equal to the aggregate of—

(a) the amount of housing benefit to which the claimant would have been entitled in the relevant week but for regulation 47(1) and, for the purposes of this sub-paragraph, if the relevant week is a week to which [F5 regulation 61(3)(a)] refers (calculation of weekly amounts), that amount shall be determined by dividing the amount of housing benefit to which he would have been so entitled by the number of days in that week for which he was liable to make payments in respect of the dwelling he occupies as his home and multiplying the quotient so obtained by 7;

(b) if the claimant would, but for regulation 21 of the State Pension Credit Regulations 2002, have been entitled to state pension credit in respect of the benefit week, within the meaning of regulation 1(2) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled and, for the purposes of this sub-paragraph, if the amount is in respect of a part-week, that amount shall be determined by dividing the amount of the state pension credit to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient so obtained by 7;

(c) if the claimant would, but for regulation 37(1) of the Council Tax Benefit (Persons who have attained the qualifying age for state pension credit) Regulations 2006, have been entitled to council tax benefit or to an additional amount of council tax benefit in respect of the benefit week which includes the last day of the relevant week, the amount which is equal to—

(i) in a case where no council tax benefit is payable, the amount to which he would have been entitled; or

(ii) in any other case, the amount equal to the additional amount of council tax benefit to which he would have been entitled;

and, for the purposes of this sub-paragraph, if the amount is in respect of a part-week, that amount shall be determined by dividing the amount of the council tax benefit to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient so obtained by 7;

(d) if the claimant would, but for regulation 113 of the Jobseeker's Allowance Regulations, have been entitled to an income-based jobseeker's allowance in respect of the benefit week, within the meaning of regulation 1(3) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled and, for the purposes of this sub-paragraph, if the amount is in respect of a part-week, that amount shall be determined by dividing the amount of the income-based jobseeker's allowance to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient so obtained by 7.

[F6 (e) if the claimant would, but for regulation 115 of the Employment and Support Allowance Regulations, have been entitled to an income-related employment and support allowance in respect of the benefit week, within the meaning of regulation 2(1) of those Regulations (interpretation), which includes the last day of the relevant week, the amount to which he would have been entitled and, for the purposes of this sub-paragraph, if the amount is in respect of a part-week, that amount must be determined by dividing the amount of the income-related employment and support allowance to which he would have been so entitled by the number equal to the number of days in that part-week and multiplying the quotient so obtained by 7.]

(5) The amount determined under paragraph (4) shall be redetermined under that paragraph if the claimant makes a further claim for housing benefit and the conditions in paragraph (6) are satisfied, and in such a case—

(a) sub-paragraphs (a) to (d) of paragraph (4) shall apply as if for the words “relevant week” there were substituted the words “ relevant subsequent week ”; and

(b) subject to paragraph (7), the amount as redetermined shall have effect from the first week following the relevant subsequent week in question.

(6) The conditions are that—

(a) a further claim is made 26 or more weeks after—

(i) the date on which the claimant made a claim for housing benefit in respect of which he was first treated as possessing the capital in question under regulation 47(1);

(ii) in a case where there has been at least one redetermination in accordance with paragraph (5), the date on which he last made a claim for housing benefit which resulted in the weekly amount being redetermined; or

(iii) the date on which he last ceased to be entitled to housing benefit,

whichever last occurred; and

(b) the claimant would have been entitled to housing benefit but for regulation 47(1) of these Regulations or regulation 49(1) of the Housing Benefit Regulations 2006.

(7) The amount as re-determined pursuant to paragraph (5) shall not have effect if it is less than the amount which applied in that case immediately before the redetermination and in such a case the higher amount shall continue to have effect.

(8) For the purposes of this regulation—

(a) “part-week” in paragraph (4)(b)[F7 , (d) and (e)] means—

(i) a period of less than a week which is the whole period for which state pension credit [F8 , an income-related employment and support allowance], or, as the case may be, an income-based jobseeker's allowance, is payable; and

(ii) any other period of less than a week for which either of those benefits is payable;

(b) “part-week” in paragraph (4)(c) means a period of less than a week for which council tax benefit is allowed;

(c) “relevant week” means the benefit week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 47(1)—

(i) was first taken into account for the purpose of determining his entitlement to housing benefit; or

(ii) was taken into account on a subsequent occasion for the purpose of determining or redetermining his entitlement to housing benefit on that subsequent occasion and that determination or redetermination resulted in his beginning to receive, or ceasing to receive, housing benefit,

and where more than one benefit week is identified by reference to heads (i) and (ii) of this sub-paragraph, means the later or latest such benefit week;

(d) “relevant subsequent week” means the benefit week which includes the day on which the further claim or, if more than one further claim has been made, the last such claim was made.

Textual Amendments

F1 S.I. 2002/1792; paragraph (1) was substituted by S.I. 2002/3197, regulation 2, Schedule, paragraph 6.

F2 Relevant amending instruments are S.I. 1998/2117, 1999/2640, 2000/1978, 2001/3767 and 2002/841.

F3 Reg. 48(3)(e) added (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 35(a)

F4 Word in reg. 48(3) inserted by SI 2008/1082 reg. 35(a) (as amended) (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations 2008 (S.I. 2008/2428), regs. 1(2), 35

F5 Words in reg. 48(4)(a) substituted (with application in accordance with reg. 1(5)(6)(7) of the amending S.I.) by Housing Benefit (State Pension Credit) (Local Housing Allowance and Information Sharing) Amendment Regulations 2007 (S.I. 2007/2869), regs. 1(3), 11

F6 Reg. 48(4)(e) added (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 35(b)

F7 Words in reg. 48(8)(a) substituted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 35(c)(i)

F8 Words in reg. 48(8)(a)(i) inserted (27.10.2008) by Employment and Support Allowance (Consequential Provisions) Regulations 2008 (S.I. 2008/1082), regs. 1, 35(c)(ii)