The Employment and Support Allowance Regulations 2008

Calculation of income other than earnings E+W+S

104.—(1) For the purposes of regulation 91 (calculation of earnings derived from employed earner's employment and income other than earnings) F1 ... the income of a claimant which does not consist of earnings to be taken into account will, subject to paragraphs (2) to (7), be the claimant's gross income and any capital treated as income under regulation 105 (capital treated as income).

(2) There is to be disregarded from the calculation of a claimant's gross income under paragraph (1), any sum, where applicable, specified in Schedule 8.

(3) Where the payment of any benefit under the benefit Acts is subject to any deduction by way of recovery the amount to be taken into account under paragraph (1) is to be the gross amount payable.

(4) [F2 Paragraphs (5) and (5A) apply] where—

(a) a relevant payment has been made to a claimant in an academic year; and

(b) that claimant abandons, or is dismissed from, that claimant's course of study before the payment to the claimant of the final instalment of the relevant payment.

(5) [F3 Where a relevant payment is made quarterly, the] amount of a relevant payment to be taken into account for the assessment period for the purposes of paragraph (1) in respect of a claimant to whom paragraph (4) applies, is to be calculated by applying the formula—

where—

• A = the total amount of the relevant payment which that claimant would have received had that claimant remained a student until the last day of the academic term in which the person abandoned, or was dismissed from, the course, less any deduction under regulation 137(6) (treatment of student loans);

• B = the number of benefit weeks from the benefit week immediately following that which includes the first day of that academic year to the benefit week immediately before that which includes the day on which the claimant abandoned, or was dismissed from, that claimant's course;

• C = the weekly amount of the relevant payment, before the application of the £10 disregard, which would have been taken into account as income under regulation 137(3) had the claimant not abandoned or been dismissed from, the course and, in the case of a claimant who was not entitled to an income-related allowance immediately before that claimant abandoned or was dismissed from the course, had that claimant, at that time, been entitled to an income-related allowance;

• D = the number of benefit weeks in the assessment period.

[F4 (5A) Where a relevant payment is made by two or more instalments in a quarter, the amount of a relevant payment to be taken into account for the assessment period for the purposes of paragraph (1) in respect of a person to whom paragraph (4) applies, shall be calculated by applying the formula in paragraph (5) but as if—

A

=

the total amount of relevant payments which that person received, or would have received, from the first day of the academic year to the day the person abandoned the course, or was dismissed from it, less any deduction under regulation 137(6).]

(6) [F5 In this regulation]—

“academic year” and “student loan” have the same meanings as for the purposes of Chapter 10 of this Part;

[F6 “assessment period” means—

(a)

in a case where a relevant payment is made quarterly, the period beginning with the benefit week which includes the day on which the claimant abandoned, or was dismissed from, the course and ending with the benefit week which includes the last day of the last quarter for which an instalment of the relevant payment was payable to that claimant;

(b)

in a case where the relevant payment is made by two or more instalments in a quarter, the period beginning with the benefit week which includes the day on which the claimant abandoned, or was dismissed from, the course and ending with the benefit week which includes—

(i)

the day immediately before the day on which the next instalment of the relevant payment would have been due had the payments continued; or

(ii)

the last day of the last quarter for which an instalment of the relevant payment was payable to that claimant,

whichever of those dates is earlier;]

“quarter” for the purposes of the definition of “assessment period” in relation to an academic year means a period in that year—

(a)

beginning on 1st January and ending on 31st March;

(b)

beginning on 1st April and ending on 30th June;

(c)

beginning on 1st July and ending on 31st August; or

(d)

beginning on 1st September and ending on 31st December;

“relevant payment” means either a student loan or an amount intended for the maintenance of dependants referred to in regulation 132(6) (calculation of grant income) or both.

(7) In the case of income to which regulation 91(4) (calculation of income of former students) applies, the amount of income to be taken into account for the purposes of paragraph (1) is to be the amount of that income calculated in accordance with regulation 94(7) (calculation of weekly amount of income) and on the basis that none of that income has been repaid.

(8) Subject to paragraph (9), for the avoidance of doubt there is to be included as income to be taken into account under paragraph (1)—

(a) any payment to which regulation 95(2) or 97(2) (payments not earnings) applies; or

(b) in the case of a claimant who is receiving support provided under section 95 or 98 of the Immigration and Asylum Act F7 including support provided by virtue of regulations made under Schedule 9 to that Act, the amount of such support provided in respect of essential living needs of the claimant and the claimant's partner (if any) as is specified in regulations made under paragraph 3 of Schedule 8 to that Act.

(9) In the case of a claimant who is the partner of a person subject to immigration control and whose partner is receiving support provided under section 95 or 98 of the Immigration and Asylum Act including support provided by virtue of regulations made under Schedule 9 to that Act, there is not to be included as income to be taken into account under paragraph (1) the amount of support provided in respect of essential living needs of the partner of the claimant and the claimant's dependants (if any) as is specified in regulations made under paragraph 3 of Schedule 8 to the Immigration and Asylum Act.

[F8 (10) Where a claimant is a member of a couple and the claimant’s partner is receiving a contributory allowance, and that benefit has been reduced under regulation 63 or section 11J of the Act, the amount of the benefit to be taken into account is the amount as if it had not been so reduced.

(11) Where a claimant is a husband or wife by virtue of a polygamous marriage and the other party to the marriage or any spouse additional to the marriage is receiving a contributory allowance, and that benefit has been reduced under regulation 63 or section 11J of the Act, the amount of the benefit to be taken into account is the amount as if it had not been so reduced.]

Textual Amendments

F1 Words in reg. 104(1) omitted (11.4.2011) by virtue of The Social Security (Miscellaneous Amendments) Regulations 2011 (S.I. 2011/674), regs. 1(4), 16(8)

F2 Words in reg. 104(4) substituted (27.10.2008) by The Social Security (Students and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1599), regs. 1(5), 7(2)(a)

F3 Words in reg. 104(5) substituted (27.10.2008) by The Social Security (Students and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1599), regs. 1(5), 7(2)(b)

F4 Words in reg. 104(5A) substituted (27.10.2008) by The Social Security (Students and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1599), regs. 1(5), 7(2)(c)

F5 Words in reg. 104(6) substituted (27.10.2008) by The Social Security (Students and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1599), regs. 1(5), 7(2)(d)(i)

F6 Words in reg. 104(6) substituted (27.10.2008) by The Social Security (Students and Miscellaneous Amendments) Regulations 2008 (S.I. 2008/1599), regs. 1(5), 7(2)(d)(ii)

F7 Sections 95 and 98 and Schedule 9 were amended by the Nationality, Immigration and Asylum Act 2002 (c. 41), sections 44(1) and (6), 45(4)(a) and (b) and 50(1) and (2).

F8 Reg. 104(10)(11) inserted (29.10.2013) by The Social Security (Miscellaneous Amendments) (No. 3) Regulations 2013 (S.I. 2013/2536), regs. 1(1), 13(27)