The Employment and Support Allowance Regulations 2008

Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work

43.—(1) A claimant’s partner is not to be treated as engaged in remunerative work in so far as—

(a) the partner is engaged in child minding in the partner’s home;

(b) the partner is engaged by a charity or voluntary organisation, or is a volunteer, where the only payment received by the partner or due to be paid to the partner, is a payment which is to be disregarded under regulation 104(2) (calculation of income other than earnings) and paragraph 2 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings);

(c) the partner is engaged on a scheme for which a training allowance is being paid;

(d) the partner is receiving assistance under the self-employment route;

(e) the partner is engaged in employment as any one of the following—

(i) a part-time fireman in a fire brigade maintained in pursuance of the Fire and Rescue Services Act 2004(1);

(ii) a part-time fire-fighter employed by a fire and rescue authority;

(iii) a part-time fire-fighter employed by a fire and rescue authority (as defined in section 1 of the Fire (Scotland) Act 2005(2) or a joint fire and rescue board constituted by an amalgamation scheme made under section 2(1) of that Act;

(iv) an auxiliary coastguard in respect of coast rescue activities;

(v) a person engaged part-time in the manning or launching of a life boat;

(vi) a member of any territorial or reserve force prescribed in Part 1 of Schedule 6 to the Social Security (Contributions) Regulations 2001(3); or

(f) the partner is undertaking work as a councillor;

(g) the partner is engaged in caring for a person who is accommodated with the partner by virtue of arrangements made under any of the provisions referred to in paragraphs 28 or 29 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) and the partner is in receipt of any payment specified in those paragraphs;

(h) the partner is engaged in an activity in respect of which—

(i) a sports award has been made, or is to be made, to the partner; and

(ii) no other payment is made or is expected to be made to the partner.

(2) A claimant’s partner is not to be treated as engaged in remunerative work, where the partner is—

(a) a person who is mentally or physically disabled and by reason of that disability—

(i) the person’s earnings are reduced to 75% or less of what a person without that disability and working the same number of hours would reasonably be expected to earn in that employment or in comparable employment in the area; or

(ii) the person’s number of hours are 75% or less of what a person without that disability would reasonably be expected to undertake in that employment or in comparable employment in the area;

(b) subject to regulation 42(4) (partners treated as engaged in remunerative work), a person who would otherwise have satisfied section 126(1) of the Contributions and Benefits Act (trade disputes)(4) or in respect of whom section 124(1) of that Act (conditions of entitlement to income support)(5) would otherwise have had effect as modified by section 127(b) of that Act (effect of return to work)(6);

(c) a person who would otherwise satisfy the conditions set out in paragraph 4 of Schedule 1B to the Income Support Regulations(7);

(d) a person who—

(i) is in employment;

(ii) lives in, or is temporarily absent from, a care home, an Abbeyfield Home or an independent hospital; and

(iii) requires personal care by reason of old age, disablement, past or present dependence on alcohol or drugs, past or present mental disorder or a terminal illness.

(3) The claimant’s partner is not to be treated as engaged in remunerative work on any day on which that partner is on maternity leave, paternity leave or adoption leave or is absent from work because the partner is ill.

(4) In this regulation—

“work as a councillor” has the same meaning as in regulation 40;

“volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection with that work.

(1)

2004 c. 21.

(2)

2005 asp. 5.

(3)

S.I. 2001/1004.

(4)

Section 126(1) was amended by paragraph 31 of Schedule 1 to the Incapacity Act 1994 (c. 18) and paragraph 31(a) and (b) of Schedule 2 to the Jobseekers Act 1995 (c. 18).

(5)

Section 124(1) was amended by paragraph 30(2) to (5) of Schedule 2 to the Jobseekers Act 1995 and by section 14 of and paragraphs 1, 2(1) and (2) of Part 1 of Schedule 2 to the State Pension Credit Act 2002 (c. 16).

(6)

Section 127(b) was amended by paragraph 44 of Schedule 24 to the Civil Partnership Act 2004 (c. 33).

(7)

Schedule 1B to the Income Support Regulations was inserted by regulation 22 of and Schedule 1 to the Income Support (Jobseeker’s Allowance Consequential Amendments) Regulations 1996 (S.I. 1996/206). Paragraph 4 was amended by regulation 33 of the Jobseekers Allowance and Income Support (General) (Amendment) Regulations 1996 (S.I. 1996/1517), by paragraph 2 of Schedule 2 to the Social Security Amendment (Carer’s Allowance) Regulations 2002 (S.I. 2002/2497) and by regulation 4(1) of the Social Security (Loss of Benefit) (Consequential Amendments) Regulations 2002 (S.I. 2002/490).