PART VIN.I.Assessment of income and capital

Modifications etc. (not altering text)

SECTION 5N.I.Other income

Notional incomeN.I.

39.—(1) A claimant shall be treated as possessing—

(a)subject to paragraph (2) the amount of any retirement pension income—

(i)for which no claim has been made, and

(ii)to which he might expect to be entitled if a claim for it were made;

(b)income from an occupational pension scheme which the claimant elected to defer.

(2) Paragraph (1)(a) shall not apply to the following where entitlement has been deferred—

(a)a Category A or Category B retirement pension payable under sections 43 to 55 of the Act;

(b)a shared additional pension payable under section 55A of the Act(1); and

(c)graduated retirement benefit payable under sections 35 or 36 of the National Insurance Act (Northern Ireland) 1966(2).

(3) For the purposes of paragraph (2) entitlement has been deferred—

(a)in the case of Category A or Category B pension, in the circumstances specified in section 55(3) of the Act(3);

(b)in the case of a shared additional pension, in the circumstances specified in section 55C(3) of the Act(4);

(c)in the case of graduated retirement benefit, in the circumstances specified in section 35(4) and (4A) of the National Insurance Act (Northern Ireland) 1966(5).

[F1(4) This paragraph applies where a person aged not less than 60—

(a)is entitled to money purchase benefits under an occupational pension scheme or a personal pension scheme;

(b)fails to purchase an annuity with the funds available in that scheme; and

(c)either—

(i)defers in whole or in part the payment of any income which would have been payable to him by his pension fund holder;

(ii)fails to take any necessary action to secure that the whole of any income which would be payable to him by his pension fund holder upon his applying for it, is so paid, or

(iii)income withdrawal is not available to him under that scheme.

(4A) Where paragraph (4) applies, the amount of any income foregone shall be treated as possessed by that person, but only from the date on which it could be expected to be acquired were an application for it to be made.]

(5) The amount of any income foregone in a case [F2where paragraph (4)(c)(i) or (ii)] applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the relevant authority which shall take account of information provided by the pension fund holder in accordance with regulation 63(6).

(6) The amount of any income foregone in a case [F3where paragraph (4)(c)(iii)] applies shall be the income that the claimant could have received without purchasing an annuity had the funds held under the relevant scheme F4... been held under a personal pension scheme or occupational pension scheme where income withdrawal was available and shall be determined in the manner specified in paragraph (5).

(7) In paragraph (4), “money purchase benefits” has the meaning it has in the Pension Schemes (Northern Ireland) Act 1993(6).

(8) Subject to paragraph (9), a person shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to housing benefit or increasing the amount of that benefit.

(9) Paragraph (8) shall not apply in respect of the amount of an increase of pension or benefit where a person, having made an election in favour of that increase of pension or benefit under Schedule 5 or 5A to the Act(7) or under Schedule 1 to the Graduated Retirement Benefit Regulations, changes that election in accordance with regulations made under Schedule 5 or 5A to that Act in favour of a lump sum.

(10) In paragraph (9), “lump sum” means a lump sum under Schedule 5 or 5A to the Act or under Schedule 1 to the Graduated Retirement Benefit Regulations.

(11) Where a claimant is in receipt of any benefit (other than housing benefit) under the benefit Acts and the rate of that benefit is altered with effect from a date on or after 1st April in any year but not more than 14 days thereafter, the relevant authority shall treat the claimant as possessing such benefit at the altered rate—

(a)in a case in which the claimant’s weekly amount of eligible rent or, as the case may be, rates falls to be calculated in accordance with regulation 59(2)(b) or (c) or, as the case may be, (3)(b) or (c), from 1st April in that year;

(b)in any other case, from the first Monday in April in that year,

to the date on which the altered rate is to take effect.

(12) In the case of a claimant who has, or whose partner has, an award of state pension credit comprising only the savings credit, where a relevant authority treats the claimant as possessing any benefit (other than housing benefit) at the altered rate in accordance with paragraph (11), that authority shall—

(a)determine the income and capital of that claimant in accordance with regulation 25(1), where the calculation or estimate of that income and capital is altered with effect from a date on or after 1st Aril in any year but not more than 14 days thereafter; and

(b)treat that claimant as possessing such income and capital at the altered rate by reference to the period referred to in paragraph (11)(a) or (b), as the case may be.

(13) For the purposes of paragraph (8), a person is not to be regarded as depriving himself of income where—

(a)his rights to benefits under a registered pension scheme are extinguished and in consequence of this he receives a payment from the scheme; and

(b)that payment is a trivial commutation lump sum within the meaning given by paragraph 7 of Schedule 29 to the Finance Act 2004(8).

(14) In paragraph (13) “registered pension scheme” has the meaning given in section 150(2) of the Finance Act 2004.

Textual Amendments

Commencement Information

I1Reg. 39 in operation at 20.11.2006, see reg. 1(1)

(1)

Section 55A was inserted by paragraph 3 of Schedule 6 to the Welfare Reform and Pensions (Northern Ireland) Order 1999 (S.I. 1999/3147(N.I. 11)) and amended by section 37(3) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000

(2)

1966 c. 6 (N.I.); sections 35 and 36 continue in force by virtue of Schedules 1 and 2 to S.R. 1978 No. 105, relevant amending Rules are S.R. 1989 No. 373, S.R. 1995 No. 483, S.R. 1996 No. 289, S.R. 1999 No. 371 (C. 28), S.R. 2005 Nos. 121 and 541 and S.R. 2006 No. 109

(3)

Section 55 was substituted by Article 273(1) of the Pensions (Northern Ireland) Order 2005 (S.I. 2005/255 (N.I. 1))

(4)

Section 55C was substituted by Article 273(2) of the Pensions (Northern Ireland) Order 2005

(5)

Sub-sections (4) and (4A) were substituted by regulation 2(2)(a) of S.R. 2005 No. 121

(6)

1993 c. 49; see section 176(1)

(7)

Schedule 5 was amended by paragraph 36 of Schedule 7 to the Pension Schemes (Northern Ireland) Act 1993, paragraph 40 of Schedule 1 to the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I. 12)), paragraphs 6(2) to (4) and 18(15) and (18) of Schedule 2 to the Pensions (Northern Ireland) Order 1995 (S.I. 1995/3213 (N.I. 22)), section 35(1) of the Child Support, Pensions and Social Security Act (Northern Ireland) 2000 (c. 4 (N.I.)), paragraphs 2 to 13 of Schedule 9 to the Pensions (Northern Ireland) Order 2005 and paragraph 6 of the Schedule to S.R. 2005 No. 434 and Schedule 5A was inserted by paragraph 14 of Schedule 9 to the Pensions (Northern Ireland) Order 2005