PART 7EFFECT OF WORK ON ENTITLEMENT TO AN EMPLOYMENT AND SUPPORT ALLOWANCE
A claimant who works to be treated as not entitled to an employment and support allowance40.
(1)
Subject to the following paragraphs, a claimant is to be treated as not entitled to an employment and support allowance in any week in which that claimant does work.
(2)
Paragraph (1) does not apply to—
(a)
work as a councillor;
(b)
duties undertaken on either one full day or 2 half-days a week as—
(i)
a member of the Disability Living Allowance Advisory Board, or
(ii)
a panel member with a disability qualification, as defined in regulation 1(2) of the Decisions and Appeals Regulations, acting as a member of an appeal tribunal constituted under Chapter 1 of Part 2 of the 1998 Order;
(c)
domestic tasks carried out in the claimant’s own home or the care of a relative;
(d)
duties undertaken in caring for another person who is accommodated with the claimant by virtue of arrangements made under any of the provisions referred to in paragraph 27 or 28 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) F1or where the claimant is in receipt of any payment specified in those paragraphs;
(e)
any activity the claimant undertakes during an emergency to protect another person or to prevent serious damage to property or livestock; or
(f)
any of the categories of work set out in regulation 45 (exempt work).
(3)
This regulation is subject to regulation 46 (effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment).
(4)
A claimant who does work to which this regulation applies in a week which is—
(a)
the week in which the claimant first becomes entitled to a benefit, allowance or advantage on account of the claimant’s limited capability for work in any period; or
(b)
the last week in any period in which the claimant has limited capability for work or is treated as having limited capability for work,
is to be treated as not entitled to an employment and support allowance by virtue of paragraph (1) only on the actual day or days in that week on which the claimant does that work.
(5)
Regulation 145 (linking rules) does not apply for the purposes of calculating the beginning or end of any period of limited capability for work under paragraph (4).
(6)
The day or days in a week on which a night worker works, for the purposes of paragraph (4), are to be calculated by reference to regulation 28 (night workers).
(7)
In this regulation—
“week” means a week in respect of which a claimant is entitled to an employment and support allowance;
“work” means any work which a claimant does, whether or not that claimant undertakes it in expectation of payment;
“work as a councillor” is to be taken to include any work which a claimant undertakes as a member of a district council or any body of which the claimant is a member by reason of being a councillor.
Meaning of “remunerative work” for the purposes of paragraph 6(1)(e) of Schedule 1 to the Act41.
(1)
For the purposes of paragraph 6(1)(e) of Schedule 1 to the Act (conditions of entitlement to an income-related allowance), “remunerative work” means any work which a claimant does for which payment is made or which is done in expectation of payment, other than work listed in regulation 40(2).
(2)
Subject to paragraph (3), a claimant who was, or who was being treated as—
(a)
engaged in remunerative work; and
(b)
in respect of that work earnings to which regulation 95(1)(b) and (d) applies are paid,
is to be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part 10.
(3)
Paragraph (2) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).
Meaning of “remunerative work” for the purposes of paragraph 6(1)(f) of Schedule 1 to the Act42.
(1)
For the purposes of paragraph 6(1)(f) of Schedule 1 to the Act, (conditions of entitlement to an income-related allowance where a claimant must not be a member of a couple the other member of which is engaged in remunerative work), “remunerative work” means work in which the claimant’s partner is engaged or, where the partner’s hours of work fluctuate, the partner is engaged on average, for not less than 24 hours a week, being work for which payment is made or which is done in expectation of payment.
(2)
In calculating the number of hours for which a claimant’s partner is engaged in work so as to determine whether that partner is engaged in remunerative work, the number of hours are to be determined in accordance with paragraphs (8) and (9) of regulation 45 and those paragraphs are to be read as though they referred to the claimant’s partner.
(3)
The claimant’s partner is to be treated as engaged in remunerative work during any period for which that partner is absent from work referred to in paragraph (1) if the absence is either without good cause or by reason of a recognised, customary or other holiday.
(4)
Subject to paragraph (5), a claimant’s partner who was, or who was being treated as—
(a)
engaged in remunerative work; and
(b)
in respect of that work earnings to which regulation 95(1)(b) and (d) applies are paid,
is to be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part 10.
(5)
Paragraph (4) does not apply to earnings disregarded under paragraph 1 of Schedule 7 (sums to be disregarded in the calculation of earnings).
(6)
For the purposes of this regulation, in determining the number of hours in which a claimant’s partner is engaged or treated as engaged in remunerative work, no account is to be taken of any hours in which the claimant’s partner is engaged in an employment or a scheme to which regulation 43(1) or (2) applies.
Circumstances under which partners of claimants entitled to an income-related allowance are not to be treated as engaged in remunerative work43.
(1)
A claimant’s partner is not to be treated as engaged in remunerative work in so far as—
(a)
the partner is engaged in child minding in the partner’s home;
(b)
the partner is engaged by a charity or voluntary organisation, or is a volunteer, where the only payment received by the partner or due to be paid to the partner, is a payment which is to be disregarded under regulation 104(2) (calculation of income other than earnings) and paragraph 2 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings);
(c)
the partner is engaged on a scheme for which a training allowance is being paid;
(d)
the partner is receiving assistance under the self-employment route;
(e)
the partner is engaged in employment as any one of the following—
(i)
(ii)
an auxiliary coastguard in respect of coast rescue activities,
(iii)
a person engaged part-time in the manning or launching of a lifeboat,
(iv)
a member of any F2...reserve force prescribed in Part 1 of Schedule 1;
(f)
the partner is undertaking work as a councillor;
(g)
the partner is engaged in caring for a person who is accommodated with the partner by virtue of arrangements made under any of the provisions referred to in paragraph 27 or 28 of Schedule 8 (sums to be disregarded in the calculation of income other than earnings) and the partner is in receipt of any payment specified in that paragraph; or
(h)
the partner is engaged in an activity in respect of which—
(i)
a sports award has been made, or is to be made, to the partner, and
(ii)
no other payment is made or is expected to be made to the partner.
(2)
A claimant’s partner is not to be treated as engaged in remunerative work, where the partner is—
(a)
a person who is mentally or physically disabled and by reason of that disability—
(i)
the person’s earnings are reduced to 75 per cent. or less of what a person without that disability and working the same number of hours would reasonably be expected to earn in that employment or in comparable employment in the area, or
(ii)
the person’s number of hours are 75 per cent. or less of what a person without that disability would reasonably be expected to undertake in that employment or in comparable employment in the area;
(b)
(c)
(d)
a person who—
(i)
is in employment,
(ii)
lives in, or is temporarily absent from, a residential care home, a nursing home, an Abbeyfield Home or an independent hospital, and
(iii)
requires personal care by reason of old age, disablement, past or present dependence on alcohol or drugs, past or present mental disorder or a terminal illness.
(3)
The claimant’s partner is not to be treated as engaged in remunerative work on any day on which that partner is on maternity leave, paternity leave F3, shared parental leave or adoption leave or is absent from work because the partner is ill.
(4)
In this regulation—
“work as a councillor” has the meaning given by regulation 40;
“volunteer” means a person who is engaged in voluntary work otherwise than for a relative, where the only payment received or due to be paid to the person by virtue of being so engaged is in respect of any expenses reasonably incurred by the person in connection with that work.
Claimants who are treated as not entitled to any allowance at all by reason of regulation 40(1) are to be treated as not having limited capability for work44.
(1)
Where a claimant is treated as not entitled to an employment and support allowance by reason of regulation 40(1), subject to paragraph (2), the claimant is to be treated as not having limited capability for work.
F4(2)
Paragraph (1) does not apply where the claimant remains entitled to a contributory allowance, but is not entitled to an income-related allowance by reason of regulation 40(1).
F5(2)
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3)
Paragraph (1) applies even if—
(a)
it has been determined that the claimant has, or is to be treated as having, limited capability for work in accordance with regulation 20, 25, 26 or 29; or
(b)
the claimant meets the conditions set out in regulation 30(2) for being treated as having limited capability for work until a determination is made in accordance with the limited capability for work assessment.
Exempt work45.
(1)
The categories of work referred to in regulation 40(2)(f) are set out in the following paragraphs.
(2)
Work for which the earnings in any week do not exceed £20∙00.
(3)
Work for which the earnings in any week do not exceed F6subject to paragraph (9A), 16 times the national minimum wage and which—
(a)
is part of the claimant’s treatment programme and is done under medical supervision while the claimant is an in-patient, or is regularly attending as an out-patient, of a hospital or similar institution; or
(b)
is supervised by a person employed by a public authority or F7by a voluntary organisation or community interest company engaged in the provision or procurement of work for persons who have disabilities.
(4)
Work which is done for less than 16 hours a week, for which earnings in any week do not exceed F8subject to paragraph (9A), 16 times the national minimum wage F9...
F9
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F9
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F10(4A)
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(5)
(6)
Work done where the claimant receives no payment of earnings and where the claimant—
(a)
is engaged by a charity or voluntary organisation; or
(b)
is a volunteer,
where the Department is satisfied in any of those cases that it is reasonable for the claimant to provide the service free of charge.
(7)
Work done in the course of participating in a work placement approved in writing by the Department for Employment and Learning (or a person providing services to that Department) before the placement starts.
(8)
The number of hours for which a claimant is engaged in work is to be determined—
(a)
where no recognisable cycle has been established in respect of a claimant’s work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which the claimant is expected to work in a week;
(b)
where the number of hours for which the claimant is engaged fluctuate, by reference to the average of hours worked over—
(i)
if there is a recognisable cycle of work, the period of one complete cycle (including, where the cycle involves periods in which the claimant does no work, those periods but disregarding any other absences),
(ii)
(9)
For the purposes of determining the number of hours for which a claimant is engaged in work, that number is to include any time allowed to that claimant by the claimant’s employer for a meal or for refreshment, but only where that claimant is, or expects to be, paid earnings in respect of that time.
F11(9A)
Where the amount determined by the calculation in paragraphs (3) and (4) would, but for this paragraph, include an amount of—
(a)
less than 50p, that amount shall be rounded up to the nearest 50p; or
(b)
less than £1 but more than 50p, that amount shall be rounded up to the nearest £1.
(10)
In this regulation—
F12...
“volunteer” has the meaning given by regulation 43;
“work placement” means practical work experience with an employer, which is neither paid nor undertaken in expectation of payment.
F13(11)
For the purposes of this regulation, a period of specified work begins on the first day on which any specified work is undertaken and continues for a period of 52 weeks, whether or not any further specified work is undertaken during that period.
Effect of work on entitlement to contributory allowance where claimant is receiving certain regular treatment46.
Where a claimant who is entitled to a contributory allowance and is treated as having limited capability for work in accordance with regulation 26 works on any day during a week when the claimant is, in accordance with that regulation, receiving certain regular treatment or recovering from that treatment, that work is to have no effect on the claimant’s entitlement to the contributory allowance.