The Employment and Support Allowance Regulations (Northern Ireland) 2008

Notional income – income due to be paid or income paid to or in respect of a third party N.I.

107.—(1) Except in the case of a discretionary trust, or a trust derived from a payment made in consequence of a personal injury, any income which is due to be paid to the claimant but—

(a) has not been paid to the claimant;

(b) is not a payment prescribed in regulation 8 or 9 of the Social Security (Payments on Account, Overpayment and Recovery) Regulations (Northern Ireland) 1988(1) (duplication and prescribed payments or maintenance payments) and not made on or before the date prescribed in relation to it,

is, except for any amount to which paragraph (2) applies, to be treated as possessed by the claimant.

(2) This paragraph applies to—

(a) an amount which is due to be paid to the claimant under an occupational pension scheme but which is not paid because the trustees or managers of the scheme have suspended or ceased payments due to an insufficiency of resources;

(b) any amount by which a payment made to the claimant from an occupational pension scheme falls short of the payment to which the claimant was due under the scheme where the shortfall arises because the trustees or managers of the scheme have insufficient resources available to them to meet in full the scheme’s liabilities; or

(c) any earnings which are due to an employed earner on the termination of that employed earner’s employment by reason of redundancy but which have not been paid to that employed earner.

(3) Any payment of income, other than a payment of income specified in paragraph (5), made to a third party in respect of a single claimant or the claimant’s partner (but not a member of the third party’s family) is to be treated—

(a) in a case where that payment is derived from—

(i) a payment of any benefit under the benefit Acts,

(ii) a payment from the Armed Forces and Reserve Forces Compensation Scheme,

(iii) a war disablement pension, war widow’s pension or war widower’s pension, or

(iv) a pension payable to a person as a widow, widower or surviving civil partner under any power of Her Majesty otherwise than under a statutory provision to make provision about pensions for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown,

as possessed by that single claimant, if it is paid to the claimant or by the claimant’s partner, if it is paid to the claimant’s partner;

(b) in a case where that payment is a payment of an occupational pension, a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund, as possessed by that single claimant or, as the case may be, by the claimant’s partner;

(c) in any other case, as possessed by that single claimant or the claimant’s partner to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable, or any housing costs to the extent that they are met under regulation 67(1)(c) or 68(1)(d) (housing costs), of that single claimant or, as the case may be, of the claimant’s partner, or is used for any water charges for which that claimant or that partner is liable,

but, except where sub-paragraph (a) applies, this paragraph does not apply to any payment in kind to the third party.

(4) Any payment of income, other than a payment of income specified in paragraph (5), made to a single claimant or the claimant’s partner in respect of a third party (but not in respect of another member of the claimant’s family) is to be treated as possessed by that single claimant or, as the case may be, the claimant’s partner, to the extent that it is kept or used by that claimant or used by or on behalf of the claimant’s partner but, except where paragraph (3)(a) applies, this paragraph does not apply to any payment in kind to the third party.

(5) Paragraphs (3) and (4) do not apply in respect of a payment of income made—

(a) under the Macfarlane Trust, the Macfarlane (Special Payments) Trust, the Macfarlane (Special Payments) (No. 2) Trust, the Fund, the Eileen Trust or the Independent Living Fund (2006);

(b) pursuant to section 19(1)(a) of the Coal Industry Act 1994(2) (concessionary coal);

(c) pursuant to section 1 of the Employment and Training Act in respect of a person’s participation—

(i) in an employment programme specified in regulation 75(1)(a) of the Jobseeker’s Allowance Regulations(3),

(ii) in a training scheme specified in regulation 75(1)(b)(ii) of those Regulations(4),

(iii) in a qualifying course within the meaning of regulation 17A(7) of those Regulations(5); or

(d) under an occupational pension scheme, in respect of a pension or other periodical payment made under a personal pension scheme or a payment made by the Board of the Pension Protection Fund where—

(i) a bankruptcy order has been made in respect of the person in respect of whom the payment has been made or, in Scotland, the estate of that person is subject to sequestration or a judicial factor has been appointed on that person’s estate under section 41 of the Solicitors (Scotland) Act 1980(6),

(ii) the payment is made to the trustee in bankruptcy or any other person acting on behalf of the creditors, and

(iii) the person referred to in head (i) and that person’s partner (if any) does not possess, or is not treated as possessing, any other income apart from that payment.

(6) Where the claimant resides in a residential care home, a nursing home, an Abbeyfield Home or an independent hospital, or is temporarily absent from such a home or hospital, any payment made by a person other than the claimant or a member of the claimant’s family in respect of some or all of the cost of maintaining the claimant or the claimant’s partner in that home or hospital is to be treated as possessed by the claimant or the claimant’s partner.

(7) In paragraph (2)(a) and (b) “resources” has the meaning given by section 176(1) of the Pension Schemes (Northern Ireland) Act 1993.

Commencement Information

I1 Reg. 107 in operation at 27.10.2008, see reg. 1(1)

(1)

S.R. 1988 No. 142; regulation 8 was amended by regulation 14(4) of S.R. 1992 No. 6, regulation 15(3) of S.R. 1996 No. 289, Article 11(5) of S.R. 1999 No. 472 (C. 36), regulation 11(3) of S.R. 2001 No. 108, regulation 26(5) of S.R. 2003 No. 191, regulation 6(3) of S.R. 2005 No. 46 and regulation 2 of S.R. 2005 No. 582

(2)

1994 c. 21

(3)

Regulation 75(1) was substituted by regulation 8 of S.R. 1997 No. 541 and amended by paragraph 32(a) and (b) of Schedule 2 to S.R. 2000 No. 350 and sub-paragraph (a) was amended by regulation 2(4) of S.R. 2000 No. 197, regulation 5(a) of S.R. 2001 No. 151 and regulation 2(4) of S.R. 2002 No. 275

(4)

Regulation 75(1)(b)(ii) was amended by regulation 8(b) of S.R. 1998 No. 198

(5)

Regulation 17A was inserted by regulation 4 of S.R. 1998 No. 198

(6)

1980 c. 46