The Employment and Support Allowance Regulations (Northern Ireland) 2008

Circumstances in which a person is to be treated as being or not being a member of the household

156.—(1) Subject to the following provisions of this regulation—

(a) the claimant and the claimant’s partner; and

(b) where the claimant or the claimant’s partner is responsible for a child or young person, that child or young person and any child of that child or young person,

are to be treated as being members of the same household.

(2) Paragraph (1) applies even where any of them is temporarily living away from the other members of the family.

(3) Paragraph (1) does not apply to a person who is living away from the other members of the family where—

(a) that person does not intend to resume living with the other members of the family; or

(b) that person’s absence from the other members of the family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example where the person is in hospital or otherwise has no control over the length of absence) and the absence is unlikely to be substantially more than 52 weeks.

(4) Paragraph (1) does not apply in respect of any member of a couple or of a polygamous marriage where—

(a) one, both or all of them are patients detained in accommodation provided under Article 110 of the Mental Health Order;

(b) one, both or all of them are—

(i) detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court, or

(ii) on temporary release in accordance with the provisions of the Prison Act (Northern Ireland) 1953(1);

(c) the claimant is abroad and does not satisfy the conditions of Chapter 3 (temporary absence from Northern Ireland); or

(d) any one of them is permanently residing in a residential care home, a nursing home, an Abbeyfield Home or an independent hospital.

(5) A child or young person is not to be treated as a member of the claimant’s household where that child or young person is—

(a) placed with the claimant or the claimant’s partner by an authority under Article 27(2)(a) of the Children Order or by a voluntary organisation under Article 75(1)(a) of that Order;

(b) placed with the claimant or the claimant’s partner prior to adoption; or

(c) placed for adoption with the claimant or the claimant’s partner pursuant to a decision under the Adoption Agencies Regulations (Northern Ireland) 1989(2).

(6) Subject to paragraphs (7) and (8), paragraph (1) does not apply to a child or young person who is not living with the claimant and who—

(a) in a case which does not fall within sub-paragraph (b), has been continuously absent from Northern Ireland for a period of more than 4 weeks commencing—

(i) where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim,

(ii) in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(b) where regulation 153 (absence to receive medical treatment) applies, has been continuously absent from Northern Ireland for a period of more than 26 weeks, that period commencing––

(i) where that child or young person went abroad before the date of the claim for an employment and support allowance, on the date of that claim,

(ii) in any other case, on the day which immediately follows the day on which that child or young person went abroad;

(c) has been an in-patient or in accommodation for a continuous period of more than 12 weeks commencing—

(i) where that child or young person became an in-patient or, as the case may be, entered that accommodation, before the date of the claim for an employment and support allowance, with that date, or

(ii) in any other case, with the date on which that child or young person became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant’s household;

(d) is being looked after by an authority under a relevant enactment;

(e) has been placed with a person other than the claimant prior to adoption;

(f) has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations (Northern Ireland) 1989; or

(g) is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

(7) Paragraph (6)(a)(i), (b)(i) and (c)(i) does not apply in a case where immediately before the date of claim for an employment and support allowance the claimant was entitled to an income-based jobseeker’s allowance or income support.

(8) A child or young person to whom any of the circumstances mentioned in paragraph (6)(d) or (h) applies is to be treated as being a member of the claimant’s household only for that part of any benefit week where that child or young person lives with the claimant.

(9) In this regulation—

“accommodation” means accommodation provided or arranged by the Department of Health, Social Services and Public Safety under Article 15 or 36 of the Health and Personal Social Services Order in a home owned or managed by a Health and Social Services Board or a Health and Social Services trust where the accommodation is provided for a person whose stay in that accommodation has become other than temporary;

“authority” has the meaning given by Article 2 of the Children Order;

“relevant enactment” means the Army Act 1955(3), the Air Force Act 1955(4), the Naval Discipline Act 1957(5), the Children and Young Persons Act (Northern Ireland) 1968(6), the Health and Personal Social Services Order, the Family Law Reform (Northern Ireland) Order 1977(7), the Matrimonial Causes (Northern Ireland) Order 1978(8), the Domestic Proceedings (Northern Ireland) Order 1980(9), the Adoption (Northern Ireland) Order 1987(10) and the Children Order.

(10) For the purposes of these Regulations a person is responsible for a child or young person if that child or young person usually lives with that person.

(1)

1953 c. 18 (N.I.)

(2)

S.R. 1989 No. 253

(3)

1955 c. 18

(4)

1955 c. 19

(5)

1957 c. 53

(6)

1968 c. 34 (N.I.)

(7)

S.I. 1977/1250 (N.I. 17)

(8)

S.I. 1978/1045 (N.I. 15)

(9)

S.I. 1980/563 (N.I. 5)

(10)

S.I. 1987/2203 (N.I. 22)