The Advice and Assistance (Scotland) (Consolidation and Amendment) Regulations 1996

Regulation 7

SCHEDULE 2 S ASSESSMENT OF DISPOSABLE CAPITAL AND DISPOSABLE INCOME

1.  In this Schedule, unless the context otherwise requires– S

• “capital" means the amount or value of every resource of a capital nature;

• [F1 “dependent person” means a person wholly or substantially maintained by the person concerned]

• “income" means the total income from all sources which the person concerned received or became entitled to during or in respect of the seven days up to and including the date of his application;

• “the person concerned" means the person whose disposable capital and disposable income are to be determined.

Textual Amendments

F1 Words in Sch. 2 para. 1 inserted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 5(a) (with reg. 2)

2.  Any question arising under this Schedule shall be decided by the solicitor, and the solicitor, in deciding any such question, shall have regard to any guidance which may from time to time be given by the Board as to the application of this Schedule. S

3.  The disposable capital and disposable income of the person concerned shall be the capital and income as determined by the solicitor after making such deductions as are to be made under the provisions of this Schedule. S

4.  If it appears to the solicitor that the person concerned has, with intent to reduce his disposable capital or disposable income or maximum contribution, whether for the purpose of making himself eligible for advice and assistance, reducing his liability to pay a contribution towards advice and assistance or otherwise, directly or indirectly deprived himself of any resource or has converted any part of his resources into resources which are to be left out of account wholly or partly, the resources of which he has so deprived himself or which he has so converted shall be treated as part of his resources or as not so converted, as the case may be. S

5.  In computing the capital and income of the person concerned– S

(a) there shall be left out of account the value of the subject matter of any claim in respect of which the person concerned is applying for advice and assistance;

[F2 (b) there shall be left out of account a back to work bonus (payable under the Jobseekers Act 1995);

(ba) there shall be left out of account any payment made under the Community Care (Direct Payments) Act 1996 or under section 12B of the Social Work (Scotland) Act 1968; and]

(c) the resources of any spouse of the person concerned shall be treated as that person’s resources unless–

(i) the spouse has a contrary interest in the matter in respect of which the person concerned is applying for advice and assistance, or

(ii) the person concerned and spouse are living separate and apart, or

(iii) in all the circumstances of the case it would be inequitable or impracticable to do so.

[F3 (d) there shall be left out of account any payment made in accordance with the following:–

(a) sums payable to holders of the Victoria Cross or George Cross]

(b) tax credits under the Tax Credits Act 2002;

(c) child maintenance bonus;

(d) child support maintenance;

(e) contribution-based jobseeker’s allowance;

(f) severe disablement allowance;

(g) retirement pension;

(h) war widow’s and widower’s pension and war disablement pension;

(i) sums payable to holders of the Victoria Cross or George Cross

[F4 (j) state pension credit under the State Pension Credit Act 2002.]

Textual Amendments

F2 Sch. 2 para. 5(b)(ba) substituted for Sch. 2 para. 5(b) (1.4.1997) by The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 5(a) (with reg. 2(1))

F3 Sch. 2 para. 5(d) inserted (6.4.2003) by The Advice and Assistance (Scotland) Amendment Regulations 2003 (S.S.I. 2003/163), regs. 1, 6 (with reg. 2)

F4 Words in Sch. 2 para. 5(d) inserted (1.10.2003) by The Advice and Assistance (Scotland) Amendment (No. 2) Regulations 2003 (S.S.I. 2003/421), regs. 1, 7 (with reg. 2)

6.  In computing the capital of the person concerned– S

(a) the value of his household furniture and effects, of articles of personal clothing and of the tools and implements of his trade shall be left out of account;

(b) there shall be left out of account the value of the main or only dwelling in which he resides;

(c) where the applicant has an interest in a dwelling other than the main one in which he resides, there shall be taken into account any sum which may be obtained by borrowing money on the security thereof;

(d) where the person concerned is living with one or more of the following persons, namely, a spouse whose resources are required to be aggregated with his [F5 or a dependent person], a deduction shall be made of £335 in respect of the first person, £200 in respect of the second person and £100 in respect of each further person.

Textual Amendments

F5 Words in Sch. 2 para. 6(d) substituted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 5(b) (with reg. 2)

7.  In computing the income of the person concerned– S

(a) there shall be left out of account–

(i) any income tax paid or payable on income treated under the provisions of this Schedule as his income;

(ii) the amount estimated to have been paid by way of contributions under the 1992 Act or any scheme made under [F6 that Act] in respect of the seven days up to and including the date of the application for advice or assistance;

(b) there shall be left out of account any payment made by the Secretary of State under the Earnings Top-up Scheme 1996 M1 ;

[F7 (c) there shall be a deduction in respect of the maintenance of the spouse of the person concerned, if the spouses are living together, in respect of the maintenance of any dependent person, being a member of his or her household, at the following rates:–

(i) in the case of a spouse, at a rate equivalent to the difference, as at the date when the application for advice and assistance is made, between the income support allowance for a couple where both members are aged not less than 18 (which is specified in column (2) of paragraph 1(3)(d) of Part I of Schedule 2 to the Income Support (General) Regulations 1987), and the allowance for a single person aged not less than 25 (which is specified in column (2) of paragraph 1(1)(e) of Part I of Schedule 2 to those Regulations);

(ii) in the case of a dependent person aged under 19, at a rate equivalent to the amount specified in, column [F8 (2)] of paragraph 2(1) of Part I of Schedule 2 to the Income Support (General) Regulations 1987 appropriate to that person as at the date when the application for advice and assistance is made;

(iii) in the case of a dependent person aged 19 or over, at a rate equivalent to the amount specified in column [F9 (2)] of paragraph [F10 2(1)(b)] of Part I of Schedule 2 to the Income Support (General) Regulations 1987 [F11 as at the date when the application for advice and assistance is made];]

Textual Amendments

F6 Words in Sch. 2 para. 7(a)(ii) substituted (1.4.1997) by The Advice and Assistance (Scotland) Amendment Regulations 1997 (S.I. 1997/726), regs. 1(1), 5(b) (with reg. 2(1))

F7 Sch. 2 para. 7(c) substituted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 5(c) (with reg. 2)

F8 Word in Sch. 2 para. 7(c)(ii) substituted (7.7.2000) by The Advice and Assistance (Scotland) Amendment Regulations 2000 (S.S.I. 2000/181), regs. 1(1), 2(3)(a)

F9 Word in Sch. 2 para. 7(c)(iii) substituted (7.7.2000) by The Advice and Assistance (Scotland) Amendment Regulations 2000 (S.S.I. 2000/181), regs. 1(1), 2(3)(a)

F10 Word in Sch. 2 para. 7(c)(iii) substituted (7.7.2000) by The Advice and Assistance (Scotland) Amendment Regulations 2000 (S.S.I. 2000/181), regs. 1(1), 2(3)(b)(i)

F11 Words in Sch. 2 para. 7(c)(iii) inserted (7.7.2000) by The Advice and Assistance (Scotland) Amendment Regulations 2000 (S.S.I. 2000/181), regs. 1(1), 2(3)(b)(ii)

Marginal Citations

M1 This Scheme, which applies only in certain areas of Great Britain, is an extra-statutory Scheme introduced by the Secretary of State for Social Security having effect on 8th October 1996. Copies of the Rules of the Scheme may be obtained from the Customer Service's Manager, Earnings Top-up, Norcross, Blackpool, FY5 3TA and will be available for inspection at the Department of Social Security, 9th Floor, Adelphi, 1-11 John Adam Street, London WC2N 6H5 and Offices of the Benefits Agency and Employment Job Centres which serve the area specified in Schedule 1 to the Scheme.

8.  If the person concerned is makingbona fide payments for the maintenance of a spouse who is living apart, of a former spouse or of a child or relative who is not (in any such case) a member of the household of the person concerned, there shall be a deduction of such payment as was made during or in respect of the seven days up to and including the date of the application for advice and assistance. S

9.  Where it appears to the solicitor that there has been some error or mistake in the determination of the disposable income, disposable capital or maximum contribution of the person concerned, he may redetermine the disposable income or disposable capital or maximum contribution or, as the case may be, amend the determination, and in the latter case the amended determination shall for all purposes be substituted for the original determination. S

10.—(1) Where the person concerned is of pensionable age and his weekly disposable income (excluding any net income derived from capital) is less than the current amended figure thereof as prescribed in section 11(2)(a) of the Act there shall be disregarded the amount of capital as specified in the following table:– S

Weekly disposable income (excluding net income derived from capital)	Amount of capital disregarded
Up to £10	25,000
£11 – £22	20,000
£23 – £34	15,000
£35 – £46	10,000
£47 and above	5,000

[F12 (2) In this Schedule “pensionable age” means the age of 60]

Textual Amendments

F12 Sch. 2 para. 10(2) substituted (6.4.1998) by The Advice and Assistance (Scotland) Amendment Regulations 1998 (S.I. 1998/724), regs. 1(1), 5(d) (with reg. 2)

11.  In computing the amount of capital of the person concerned there shall be wholly disregarded any capital payment received from any source which is made in relation to the subject matter of the dispute in respect of which the person concerned is applying for advice and assistance. S