40.—(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) 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.
41.—(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).
42.—(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.
43.—(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)a part-time fire and rescue officer employed by the Northern Ireland Fire and Rescue Service Board established under Article 3 of the Fire and Rescue Services (Northern Ireland) Order 2006(1),
(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 territorial or 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)subject to regulation 42(4) (partners treated as engaged in remunerative work), a person who would otherwise have satisfied section 125(1) of the Contributions and Benefits Act(2) (trade disputes) or in respect of whom section 123(1) of that Act(3) (conditions of entitlement to income support) would otherwise have had effect as modified by section 126(b) of that Act(4) (effect of return to work);
(c)a person who would otherwise satisfy the conditions set out in paragraph 4 of Schedule 1B to the Income Support Regulations(5);
(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 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.
44.—(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.
(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).
(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.
45.—(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 [F1£92∙00 ]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 voluntary organisation 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 [F2£92∙00 ]and which—
(a)is done during a 52 week period beginning on the first day on which the work is done, provided that—
(i)the claimant has not previously done specified work,
(ii)since the beginning of the last period of specified work, the claimant has ceased to be entitled to a relevant benefit for a continuous period exceeding 12 weeks,
(iii)not less than 52 weeks have elapsed since the claimant previously did the specified work; or
(b)is done by a claimant who has or is treated as having limited capability for work-related activity.
(5) Work done in the course of receiving assistance in pursuing self-employed earner’s employment whilst participating in a programme provided or other arrangements made under section 1 of the Employment and Training Act(6).
(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)in any other case, the period of 5 weeks immediately before the date of claim or the date on which a superseding decision is made under Article 11 of the 1998 Order(7) (decisions superseding earlier decisions), or such other length of time as may, in the particular case, enable the claimant’s average hours of work to be determined more accurately.
(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.
(10) In this regulation—
“relevant benefit” means—
an employment and support allowance; or
credits under regulations made under section 22(5) of the Contributions and Benefits Act(8),
in respect of which the question of the claimant’s limited capability for work arises under the Act;
“specified work” means work done in accordance with paragraph (4);
“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.
Textual Amendments
F1Sum in Reg. 45(3) substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(6)
F2Sum in Reg. 45(4) substituted (27.10.2008) by The Employment and Support Allowance (Miscellaneous Amendments) Regulations (Northern Ireland) 2008 (S.R. 2008/413), regs. 1(1), 3(6)
Commencement Information
46. 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.
Section 125(1) was amended by paragraph 31 of Schedule 1 to the Social Security (Incapacity for Work) (Northern Ireland) Order 1994 (S.I. 1994/1898 (N.I.12)) and paragraph 14 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 (S.I. 1995/2705 (N.I. 15))
Section 123(1) was amended by paragraph 13 of Schedule 2 and Schedule 3 to the Jobseekers (Northern Ireland) Order 1995, paragraph 2 of Schedule 2 to the State Pension Credit Act (Northern Ireland) 2002 (c. 14 (N.I.)) and paragraph 96 of Schedule 24 to the Civil Partnership Act 2004 (c. 33)
Section 126 was amended by paragraph 15 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995 and paragraph 98 of Schedule 24 to the Civil Partnership Act 2004
Schedule 1B was inserted by regulation 22 of S.R. 1996 No. 199 and paragraph 4 was amended by regulation 33 of S.R. 1996 No. 358, regulation 4(1) of S.R. 2000 No. 74, regulation 3(3) of S.R. 2002 No. 80 and paragraph 1(g) of the Schedule to, S.R. 2002 No. 323 and regulation 3(3) of S.R. 2002 No. 80
Section 1 was amended by Article 3 of the Employment and Training (Amendment) (Northern Ireland) Order 1988 (S.I. 1988/1087 (N.I. 10)) and Article 5 of the Industrial Training (Northern Ireland) Order 1990 (S.I. 1990/1200 (N.I. 8))
Article 11 was amended by paragraph 17 of Schedule 6 and Schedule 9 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671)
Section 22(5) was amended by paragraph 5 of Schedule 2 to the Jobseekers (Northern Ireland) Order 1995