The Social Security (Payments on Account of Benefit) Regulations (Northern Ireland) 2016

Statutory Rules of Northern Ireland

2016 No. 223

Social Security

The Social Security (Payments on Account of Benefit) Regulations (Northern Ireland) 2016

Made

3rd May 2016

Laid before Parliament

10th May 2016

Coming into operation in accordance with regulation 1(2) and (3)

The Secretary of State for Work and Pensions makes the following Regulations in exercise of the powers conferred by sections 5(1)(s), 165(1), (4) to (6) and 167(1) of the Social Security Administration (Northern Ireland) Act 1992(1) and Articles 2(2) and 74(1) and (5) of, and paragraph 9 of Schedule 2 to, the Social Security (Northern Ireland) Order 1998(2).

Those powers are exercisable by the Secretary of State by virtue of Article 4(1)(b) of the Welfare Reform (Northern Ireland) Order 2015(3).

PART 1 General

Citation and commencement

1.—(1) These Regulations may be cited as the Social Security (Payments on Account of Benefit) Regulations (Northern Ireland) 2016.

(2) The following provisions come into operation on the day appointed for the coming into force of Article 76(1) of the 2015 Order—

(a) this Part (except the provisions specified in paragraph (3)(a) and (b));

(b) Part 2 (except the provisions specified in paragraph (3)(c) to (g));

(c) Part 4.

(3) The following provisions come into operation immediately after the coming into operation of the Universal Credit Regulations—

(a) in regulation 2(1)—

(i) paragraph (a) of the definition of “couple”, and

(ii) the definitions of “the UC etc. Claims and Payments Regulations”, “universal credit” and “the Universal Credit Regulations”;

(b) regulation 2(2) and (3)(b);

(c) regulation 3(1)(a);

(d) in regulation 3(2)—

(i) paragraph (a) of the definition of “employment and support allowance”, and

(ii) paragraph (a) of the definition of “jobseeker’s allowance”;

(e) regulation 5(3)(b);

(f) regulation 7(2);

(g) regulation 8(2); and

(h) Part 3.

Interpretation

2.—(1) In these Regulations—

“the 2007 Act” means the Welfare Reform (Northern Ireland) Act 2007(4);

“the 2015 Order” means the Welfare Reform (Northern Ireland) Order 2015;

“the Claims and Payments Regulations” means the Social Security (Claims and Payments) Regulations (Northern Ireland) 1987(5);

“couple”—

(a)

where these Regulations apply in relation to universal credit, has the same meaning as in Article 45 of the 2015 Order;

(b)

where these Regulations apply in relation to the benefits specified in regulation 3(1)(b) to (f), has the same meaning as in section 133(1) of the Contributions and Benefits Act(6);

“the Jobseekers Order” means the Jobseekers (Northern Ireland) Order 1995(7);

“partner” means, where the person being referred to is a member of a couple, the other member of the couple;

“the UC etc. Claims and Payments Regulations” means the Universal Credit, Personal Independence Payment, Jobseeker’s Allowance and Employment and Support Allowance (Claims and Payments) Regulations (Northern Ireland) 2016(8);

“universal credit” means the benefit under Part 2 of the 2015 Order;

“the Universal Credit Regulations” means the Universal Credit Regulations (Northern Ireland) 2016(9).

(2) Where these Regulations apply in relation to universal credit “child” and “qualifying young person” have the same meaning as in Article 46 of the 2015 Order and whether or not a person is responsible for a child or qualifying young person is to be determined in accordance with regulation 4 of the Universal Credit Regulations.

(3) In these Regulations “writing” includes writing produced by means of electronic communications and where such communications are used by the Department—

(a) Schedule 8D to the Claims and Payments Regulations(10); or

(b) Schedule 1 to the UC etc. Claims and Payments Regulations,

as the case may be, has effect in connection with notices required to be given or sent under regulations 8 and 17 as it has effect in connection with claims for, and awards of, any benefit to which those Regulations apply.

(4) The Interpretation Act (Northern Ireland) 1954(11) shall apply to these Regulations as it applies to an Act of the Northern Ireland Assembly.

PART 2 Payments on account of benefit

Definition of “benefit”

3.—(1) In this Part “benefit” means any of the following—

(a) universal credit;

(b) employment and support allowance;

(c) income support;

(d) jobseeker’s allowance;

(e) state pension credit;

(f) benefit under Parts II to V of the Contributions and Benefits Act except attendance allowance, disability living allowance and guardian’s allowance;

(g) a state pension under Part 1 of the Pensions Act (Northern Ireland) 2015(12).

(2) For the purpose of paragraph (1)—

“employment and support allowance” means an allowance under—

(a)

Part 1 of the 2007 Act as amended by Schedule 3 and Part 1 of Schedule 12 to the 2015 Order (to remove references to an income-related allowance); and

(b)

Part 1 of the 2007 Act as it has effect apart from the amendments made by Schedule 3 and Part 1 of Schedule 12 to the 2015 Order;

“jobseeker’s allowance” means an allowance under—

(c)

the Jobseekers Order as amended by Part 1 of Schedule 12 to the 2015 Order (to remove references to an income-based allowance); and

(d)

the Jobseekers Order as it has effect apart from the amendments made by Part 1 of Schedule 12 to the 2015 Order.

Payments on account of benefit

4.—(1) The Department may, subject to paragraph (2), make a payment on account of benefit to a person (“A”) in accordance with this Part.

(2) Paragraph (1) does not apply pending the determination of an appeal relating to the benefit on account of which the payment would otherwise have been made.

Payment on account of benefit where there is no award of benefit

5.—(1) The Department may make a payment on account of benefit to A if—

(a) either paragraph (2) or (3) applies;

(b) it appears to the Department likely that the conditions of entitlement for benefit are satisfied (or will be satisfied during the period in respect of which the payment is to be made); and

(c) it is satisfied that A is in financial need.

(2) This paragraph applies where A has made a claim for benefit but the claim has not yet been determined.

(3) This paragraph applies where A is not required to make a claim for benefit by virtue of—

(a) regulation 3 of the Claims and Payments Regulations(13) (claims not required for entitlement to benefit in certain cases); or

(b) regulation 6 of the UC etc. Claims and Payments Regulations (claims not required for entitlement to employment and support allowance in certain cases),

as the case may be, but an award of benefit has not yet been made.

Payment on account of benefit where there is an award of benefit

6.—(1) The Department may make a payment on account of benefit to A if—

(a) an award of benefit has been made to A;

(b) any of paragraphs (2) to (5) applies; and

(c) it is satisfied that A is in financial need.

(2) This paragraph applies where—

(a) A currently satisfies the conditions of entitlement to that benefit; and

(b) the date on which the first payment of that benefit to A is due to be made in accordance with the award has not yet been reached.

(3) This paragraph applies where—

(a) the first payment of that benefit has been made to A in accordance with the award;

(b) the period in respect of which that payment was made is shorter than the period in respect of which subsequent payments of that benefit are to be made in accordance with that award should entitlement continue; and

(c) the date on which a subsequent payment of that benefit is due to be made to A has not yet been reached.

(4) This paragraph applies where there has been a change of circumstances which would increase the amount of benefit payable under the award and—

(a) the award has not yet been revised or superseded to reflect that change; or

(b) the award has been revised or superseded to reflect that change but the date on which the payment of benefit is due to be made in accordance with the revised or superseded award has not yet been reached.

(5) This paragraph applies where—

(a) A is entitled to a payment of that benefit pursuant to the award; and

(b) it is impracticable to make some or all of that payment on the day on which it is due.

Definition of financial need

7.—(1) A is in financial need for the purposes of regulation 5(1)(c) or 6(1)(c) where the circumstances in regulation 5(2) or (3) or, as the case may be, 6(2), (3), (4) or (5) result in a serious risk of damage to the health or safety of A or any member of A’s family.

(2) Where the payment on account of benefit is to be on account of universal credit, the following are members of A’s family for the purpose of paragraph (1)—

(a) any child or qualifying young person for whom A is responsible; and

(b) where A is a member of a couple, A’s partner.

(3) Where the payment on account of benefit is to be on account of a benefit specified in regulation 3(1)(b) to (g), for the purpose of paragraph (1), “family” has the meaning given in section 133(1) of the Contributions and Benefits Act(14).

Requirement for notice

8.—(1) The Department must, on or before making a payment on account of benefit to A, give or send notice in writing to A of A’s liability—

(a) to have the amount of the payment on account of benefit deducted from subsequent payments of benefit; and

(b) to repay the amount of any payment on account of benefit to the extent that it is not deducted from subsequent payments of benefit.

(2) Where A is a member of a couple and the payment on account of benefit is on account of universal credit, notice in writing must also be given or sent to A’s partner containing the information referred to in paragraph (1)(a) and (b).

Payment by direct credit transfer

9.  A payment on account of benefit may be paid by way of direct credit transfer into a bank account or other account nominated by A or a person acting on A’s behalf.

Bringing payments on account of benefit into account

10.  Where it is practicable to do so, a payment on account of benefit—

(a) which was made in anticipation of an award of benefit, is to be offset by the Department against the sum payable to A under the award of benefit on account of which it was made;

(b) whether or not made in anticipation of an award, which is not offset under paragraph (a), is to be deducted by the Department from—

(i) the sum payable to A under the award of benefit on account of which it was made, or

(ii) any sum payable under any subsequent award of that benefit to A.

PART 3 Budgeting advances

Payment of budgeting advances

11.—(1) The Department may make a payment on account of universal credit to a person (“B”) in accordance with this Part.

(2) A payment under this Part is to be known as a budgeting advance.

Conditions for payment of budgeting advances

12.—(1) The Department may make a budgeting advance to B for the purpose of defraying an intermittent expense of B if—

(a) B makes an application to the Department for a budgeting advance;

(b) B, or in a case where B is a member of a couple, B or B’s partner, is in receipt of universal credit;

(c) except where paragraph (2) applies, B or, in a case where B is a member of a couple, B or B’s partner, has been in receipt of benefit for a continuous period of at least 6 months on the date of the application for a budgeting advance;

(d) the earnings condition in regulation 13 is satisfied; and

(e) the recovery condition in regulation 14 is satisfied.

(2) This paragraph applies where the intermittent expense to be defrayed is necessarily related to B or, in a case where B is a member of a couple, B’s partner, obtaining or retaining employment.

(3) For the purposes of paragraph (1)(c) “benefit” means—

(a) universal credit;

(b) employment and support allowance;

(c) income support;

(d) jobseeker’s allowance; or

(e) state pension credit.

(4) For the purposes of paragraph (3)—

“employment and support allowance” means an income-related allowance under Part 1 of the 2007 Act as it has effect apart from the amendments made by Schedule 3 and Part 1 of Schedule 12 to the 2015 Order (to remove references to an income-related allowance);

“jobseeker’s allowance” means an income-based jobseeker’s allowance under the Jobseekers Order as it has effect apart from the amendments made by Part 1 of Schedule 12 to the 2015 Order (to remove references to an income-based allowance).

Earnings condition

13.—(1) The earnings condition is satisfied—

(a) in a case where regulation 12(2) does not apply, where paragraph (2) is satisfied;

(b) in a case where regulation 12(2) does apply, where paragraph (4) is satisfied.

(2) This paragraph is satisfied where—

(a) if B is not a member of a couple, B does not have earned income exceeding £2,600, or

(b) if B is a member of a couple, B and B’s partner jointly do not have earned income exceeding £3,600,

over the relevant period.

(3) In paragraph (2) “the relevant period” means the period covered by the six complete assessment periods preceding the date of the application for the budgeting advance.

(4) This paragraph is satisfied where—

(a) if B is not a member of a couple, B does not have earned income, or

(b) if B is a member of a couple, B and B’s partner jointly do not have earned income,

exceeding the permitted amount over the applicable period.

(5) In paragraph (4) “the permitted amount over the applicable period” is to be determined by the formula—

where—

N is the number of complete assessment periods in the applicable period, and

P is—

(a)

where sub-paragraph (4)(a) applies, £2,600;

(b)

where sub-paragraph (4)(b) applies, £3,600.

(6) For the purposes of paragraphs (4) and (5) “the applicable period” means—

(a) if there are six or more complete assessment periods immediately preceding the date of the application for the budgeting advance, the period covered by the six complete assessment periods immediately preceding the date of the application for the budgeting advance;

(b) if there are fewer than six complete assessment periods immediately preceding the date of the application for the budgeting advance, the number of complete assessment periods immediately preceding the date of the application for the budgeting advance.

(7) Earned income for each complete assessment period is to be calculated for the purposes of this regulation in accordance with Chapter 2 of Part 6 of the Universal Credit Regulations save that, in relation to the earned income of a person who is in gainful self-employment for the purpose of regulation 65 of those Regulations, regulation 63 of those Regulations (minimum income floor) is to be disregarded.

(8) In this regulation “assessment period” has the meaning given in regulation 22 of the Universal Credit Regulations.

Recovery condition

14.  The recovery condition is satisfied where—

(a) no amount in respect of any budgeting advance previously paid to B or, if B is a member of a couple, B or B’s partner, remains to be recovered by the Department; and

(b) taking into account all debts and other liabilities of B or, if B is a member of a couple, of B and B’s partner, the Department is satisfied that the budgeting advance can reasonably be expected to be recovered.

Minimum and maximum amounts payable by way of budgeting advance

15.—(1) The minimum amount payable by way of budgeting advance is £100.

(2) Subject to regulation 16(2), the maximum amount payable by way of budgeting advance is—

(a) where B is neither a member of a couple nor responsible for any child or qualifying young person, £348;

(b) where B is a member of a couple but is not responsible for any child or qualifying young person, £464;

(c) where B is responsible for any child or qualifying young person, £812.

Treatment of capital

16.—(1) Where the total of B’s capital or, in a case where B is a member of a couple, the total of B’s and B’s partner’s capital, exceeds £1,000, the amount of any budgeting advance which may otherwise be paid must be reduced by the amount by which that capital exceeds £1,000.

(2) No budgeting advance is payable where, as a result of paragraph (1), the amount of any budgeting advance which would otherwise be payable is reduced to less than £100.

(3) Capital is to be calculated for the purposes of paragraph (1) in accordance with Chapter 1 of Part 6 of the Universal Credit Regulations.

Requirement for notice

17.—(1) The Department must, on or before making a budgeting advance to B, give or send notice in writing to B of B’s liability—

(a) to have the amount of the budgeting advance deducted from subsequent payments of universal credit; and

(b) to repay the amount of the budgeting advance to the extent that it is not deducted from subsequent payments of universal credit.

(2) Where B is a member of a couple, notice in writing must also be given or sent to B’s partner containing the information referred to in paragraph (1)(a) and (b).

Payment by direct credit transfer

18.  A budgeting advance may be paid by way of direct credit transfer into a bank account or other account nominated by B or a person acting on B’s behalf.

PART 4 Consequential amendments, revocations and savings

Consequential revocations and savings

19.—(1) Subject to paragraph (2), the provisions specified in column (1) of the Schedule are revoked to the extent specified in column (3).

(2) The provisions revoked by paragraph (1) are to continue to apply in respect of—

(a) applications for interim payments made before these Regulations come into operation; and

(b) interim payments made pursuant to applications referred to in sub-paragraph (a).

Amendment of the Social Security and Child Support (Decisions and Appeals) Regulations and savings

20.—(1) In Schedule 1 to the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999(15) (decisions against which no appeal lies)—

(a) subject to paragraph (2), omit paragraph 18(a) and (b);

(b) after paragraph 18 insert—

“18A.   A decision of the Department under the Social Security (Payments on Account of Benefit) Regulations (Northern Ireland) 2016 except a decision under regulation 10 of those Regulations.”.

(2) The provisions omitted by paragraph (1)(a) are to continue to apply in respect of decisions regarding interim payments referred to in regulation 19(2)(b).

Signed by authority of the Secretary of State for Work and Pensions

Priti Patel

Minister of State,

Department for Work and Pensions

3rd May 2016

Regulation 19(1)

SCHEDULE Revocations

Column (1)	Column (2)	Column (3)
Citation	Reference	Extent of revocation
The Social Security (Payments on account, Overpayments and Recovery) Regulations (Northern Ireland) 1988	S.R. 1988 No. 142	Part II
The Disability Living Allowance and Disability Working Allowance (Consequential Provisions) Regulations (Northern Ireland) 1992	S.R. 1992 No. 6	Regulation 14(3)
The Social Security (Payments on account, Overpayments and Recovery) (Amendment) Regulations (Northern Ireland) 1993	S.R. 1993 No. 175	Regulation 2(3) and (4)
The Social Security (Persons from Abroad) (Miscellaneous Amendments) Regulations (Northern Ireland) 1996	S.R. 1996 No. 11	Regulation 7
The Social Security (1998 Order) (Commencement No. 11 and Consequential and Transitional Provisions) Order (Northern Ireland) 1999	S.R. 1999 No. 472 (C. 36)	Article 11(3)
The Social Security, Child Support and Tax Credits (Miscellaneous Amendments) Regulations (Northern Ireland) 2005	S.R. 2005 No. 46	Regulation 6(2)
The Employment and Support Allowance (Consequential Provisions) Regulations (Northern Ireland) 2008	S.R. 2008 No. 286	Regulation 15(3) and (4)

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision for the circumstances when payments on account of benefit may be made.

Part 1 makes general commencement and interpretation provision (regulations 1 and 2).

Part 2 relates to payments on account of benefit which can be made where the Department for Social Development (“the Department”) is satisfied that a person is in financial need (defined in regulation 7) where it appears to the Department that—

• the person would be entitled to a benefit (listed in regulation 3) and has claimed such a benefit but the claim has not been determined;

• the person is not required by law to claim such a benefit (regulation 5);

• a claim for benefit has been determined but benefit cannot be paid at the appointed time in certain circumstances (regulation 6).

Part 2 also provides for notices which must be given when such payments on account are made (regulation 8), for such payments to be made by direct credit transfer (regulation 9) and for bringing these payments into account against future awards of the benefit on account of which the payment was made (regulation 10).

Part 3 relates to payment of budgeting advances which can be paid to persons for the purpose of defraying intermittent expenses where those persons are in receipt of universal credit and have been receiving it or its predecessor benefits for a continuous period of at least 6 months (except where the expense necessarily relates to obtaining or retaining employment) (regulation 12) who satisfy the earnings condition (regulation 13) and the recovery condition (regulation 14). Regulation 15 prescribes the minimum and maximum amounts payable and regulation 16 provides that capital over £1,000 is offset against the amount of a budgeting advance which would otherwise be awarded. Regulations 17 and 18 respectively make similar provision for budgeting advances to those in regulations 8 and 9.

Part 4 makes consequential amendments, revocations and savings. Regulation 19(1) revokes Part II of the Social Security (Payments on account, Overpayments and Recovery) Regulations (Northern Ireland) 1988 (“the POR Regulations”) under which payments on account are currently made and also makes consequential revocations. Regulation 19(2) saves those provisions so that they continue to apply for applications made before these Regulations come into operation and to payments on account made pursuant to such applications.

Regulation 20(1) makes consequential amendments to Schedule 1 to the Social Security and Child Support (Decisions and Appeals) Regulations (Northern Ireland) 1999 to remove reference to decisions under Part II of the POR Regulations and provide that there will be no right of appeal against a decision made under these Regulations except where it relates to bringing payments into account under regulation 10. There is a saving in regulation 20(2) in respect of decisions relating to applications for interim payments to which regulation 19(2) applies.

An impact assessment has not been produced for this Rule as no impact on the private or voluntary sector is foreseen.

(1)

1992 c. 8; section 5(1)(s) is substituted by Article 106(1) of the Welfare Reform (Northern Ireland) Order 2015 (N.I.1), in section 165 subsection (1) was amended by paragraph 49(2) of Schedule 3 to the Social Security Contributions (Transfer of Functions, etc.) (Northern Ireland) Order 1999 (S.I. 1999/671) and section 18(5) of the National Insurance Contributions Act 2014 (c. 7) and subsections (5A) and (5B) are inserted by Article 108(1) of the Welfare Reform (Northern Ireland) Order 2015 and section 167(1) is cited for the meaning of “prescribe” and “regulations”.

(2)

S.I. 1998/1506 (N.I. 10); Article 74(1) was amended by paragraph 17(2) of Schedule 4 to the Tax Credits Act 2002 (c. 21) and Article 2(2) is cited for the meaning of “prescribe”.

(3)

S.I. 2015/2006 (N.I. 1).

(4)

2007 c. 2 (N.I.).

(5)

1987 No. 465.

(6)

The definition of “couple” was inserted by paragraph 99(3) of Schedule 24 to the Civil Partnership Act 2004 (c. 33).

(7)

S.R. 1995 No. 2705 (N.I. 15).

(8)

S.R. 2016 No. 220.

(9)

S.R. 2016 No. 216.

(10)

Schedule 8D was inserted by Article 2(4) of S.R. 2006 No. 203 and amended by Article 2(4) of S.R. 2011 No. 298 and Article 2(3) of S.R. 2011 No. 431.

(11)

1954 c. 33 (N.I.).

(12)

2015 c. 5 (N.I.).

(13)

Regulation 3 was amended by regulation 2 of S.R. 1989 No. 40, regulation 2(2) of S.R. 1994 No. 456, regulation 5 of S.R. 1999 No. 381, Article 9(4) of S.R. 1999 No. 472 (C. 36), regulation 11(2) of S.R. 2001 No. 78, regulation 10(3) of S.R. 2001 No. 108, regulation 4 of S.R. 2003 No. 367, regulation 2(3) of S.R. 2005 No. 299, regulation 2(2)(a) of S.R. 2007 No. 392, regulation 2 of S.R. 2008 No. 69, regulation 13(3) of S.R. 2008 No. 286, regulation 2(2) of S.R. 2008 No. 417, regulation 2(3) of S.R. 2009 No. 240, regulation 2(2) of S.R. 2010 No. 337 and regulation 4 of S.R. 2015 No. 185 and is modified by paragraph 5 of Schedule 2 to S.R. 2010 No. 312.

(14)

The definition of “family” was amended by paragraph 99(2) of Schedule 24 to the Civil Partnership Act 2004.

(15)

S.R. 1999 No. 162, to which there are amendments which are not relevant to these Regulations.