The Income Support (General) Regulations 1987

PART IE+W+SGENERAL

Citation and commencementE+W+S

1.  These Regulations may be cited as the Income Support (General) Regulations 1987 and shall come into force on 11th April 1988.

Commencement Information

I1Reg. 1 in force at 11.4.1988, see reg. 1

InterpretationE+W+S

2.—(1) In these Regulations, unless the context otherwise requires—

“the Act” means the Social Security Act 1986;

“attendance allowance” means—

(a)

an attendance allowance under section 35 of the Social Security ActF1;

(b)

an increase of disablement pension under section 61 or 63 of that ActF2;

(c)

a payment under regulations made in exercise of the power conferred by section 159(3)(b) of that Act;

(d)

an increase of an allowance which is payable in respect of constant attendance under section 5 of the Industrial Injuries and Diseases (Old Cases) Act 1975F3;

(e)

a payment by virtue of article 14, 15, 16, 43 or 44 of the Personal Injuries (Civilians) Scheme 1983F4 or any analogous payment; or

(f)

any payment based on need for attendance which is paid as part of a war disablement pension;

“benefit week” has the meaning prescribed in paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987F5; [F6and for the purposes of calculating any payment of income and of regulation 74(2)(a) “benefit week” shall also mean the period of 7 days ending on the day before the first day of the first benefit week following the date of claim or the last day on which income support is paid if it is in payment for less than a week;]

[F7“board and lodging accommodation” means—

(a)

accommodation provided to a person or, if he is a member of a family, to him or any other member of his family, for a charge which is inclusive of the provision of that accommodation and at least some cooked or prepared meals which both are cooked or prepared (by a person other than the person to whom the accommodation is provided or a member of his family) and are consumed in that accommodation or associated premises; or

(b)

accommodation provided to a person in a hotel, guest house, lodging house or some similar establishment,

except accommodation provided by a close relative of his or of any other member of his family, or other than on a commercial basis;]

“claimant” means a person claiming income support;

“close relative” means a parent, parent-in-law, son, son-in-law, daughter, daughter-in-law, step-parent, step-son, step-daughter, brother, sister, or the spouse of any of the preceding persons or, if that person is one of an unmarried couple, the other member of that couple;

[F8“community charge benefit” means community charge benefits under Part VII of the Contributions and Benefits Act as originally enacted;]

“concessionary payment” means a payment made under arrangements made by the Secretary of State with the consent of the Treasury which is charged either to the National Insurance Fund or to a Departmental Expenditure Vote to which payments of benefit under the Act, the Social Security Act or the Child Benefit Act 1975F9 are charged;

[F10“the Contributions and Benefits Act” means the Social Security Contributions and Benefits Act 1992;]

“co-ownership scheme” means a scheme under which a dwelling is let by a housing association and the tenant, or his personal representative, will, under the terms of the tenancy agreement or of the agreement under which he became a member of the association, be entitled, on his ceasing to be a member and subject to any condition stated in either agreement, to a sum calculated by reference directly or indirectly to the value of the dwelling;

“couple” means a married or an unmarried couple;

“course of study” means any full-time course of study or sandwich course whether or not a grant is made for attending it;

“Crown tenant” means a person who occupies a dwelling under a tenancy or licence where the interest of the landlord belongs to Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department, except (in the case of an interest belonging to Her Majesty in right of the Crown) where the interest is under the management of the Crown Estate Commissioners;

[F11“date of claim” means the date on which the claimant makes, or is treated as making, a claim for income support for the purposes of regulation 6 of the Social Security (Claims and Payments) Regulations 1987;]

[F12“disability living allowance” means a disability living allowance under section 37ZA of the Social Security Act;]

[F12“disability working allowance” means a disability working allowance under section 20 of the Act;]

“dwelling occupied as the home” means the dwelling together with any garage, garden and outbuildings, normally occupied by the claimant as his home including any premises not so occupied which it is impracticable or unreasonable to sell separately, in particular, in Scotland, any croft land on which the dwelling is situated.

“earnings” has the meaning prescribed in regulation 35 or, as the case may be, 37;

“employed earner” shall be construed in accordance with section 2(1)(a) of the Social Security Act;

[F13“employment” except for the purposes of section 20(3)(d) of the Act, includes any trade, business, profession, office or vocation;]

“housing association” has the meaning assigned to it by section 1(1) of the Housing Associations Act 1985F14;

“housing benefit expenditure” means expenditure of a kind for which housing benefit may be granted;

“invalid carriage or other vehicle” means a vehicle propelled by petrol engine or by electric power supplied for use on the road and to be controlled by the occupant;

[F15“last day of the course” has the meaning prescribed in regulation 61 for the purposes of the definition of “period of study”;]

“liable relative” has the meaning prescribed in regulation 54;

“lone parent” means a person who has no partner and who is responsible for, and a member of the same household as, a child or young person;

“long tenancy” means a tenancy granted for a term of years certain exceeding twenty one years, whether or not the tenancy is, or may become, terminable before the end of that term by notice given by or to the tenant or by re-entry, forfeiture (or, in Scotland, irritancy) or otherwise and includes a lease for a term fixed by law under a grant with a covenant or obligation for perpetual renewal unless it is a lease by sub-demise from one which is not a long tenancy;

[F16“lower rate” where it relates to rates of tax has the same meaning as in the Income and Corporation Taxes Act 1988 by virtue of section 832(1) of that Act;]

[F11“maternity leave” means a period during which a woman is absent from work because she is pregnant or has given birth to a child, and at the end of which she has a right to return to work either under the terms of her contract of employment or under Part III of the Employment Protection (Consolidation) Act 1978;]

“mobility allowance” means an allowance under section 37A of the Social Security ActF17;

“mobility supplement” means any supplement under article 26A of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 F18 including such a supplement by virtue of any other scheme or order or under Article 25A of the Personal Injuries (Civilians) Scheme 1983F19;

“net earnings” means such earnings as are calculated in accordance with regulation 36;

“net profit” means such profit as is calculated in accordance with regulation 38;

“non-dependant” has the meaning prescribed in regulation 3;

“non-dependant deduction” means a deduction that is to be made under regulation 17(e) and paragraph 11 of Schedule 3;

“nursing home” has the meaning prescribed in regulation 19(3);

“occupational pension” means any pension or other periodical payment under an occupational pension scheme but does not include any discretionary payment out of a fund established for relieving hardship in particular cases;

“partner” means where a claimant—

(a)

is a member of a married or an unmarried couple, the other member of that couple;

(b)

is married polygamously to two or more members of his household, any such member;

“payment” includes a part of a payment;

[F20“pay period” means the period in respect of which a claimant is, or expects to be, normally paid by his employer, being a week, a fortnight, four weeks, a month or other shorter or longer period as the case may be;]

[F21“pension fund holder" means with respect to a personal pension scheme or retirement annuity contract, the trustees, managers or scheme administrators, as the case may be, of the scheme or contract concerned;]

[F22“period of study” means the period beginning with the start of the course of study and ending with the last day of the course or such earlier date as the student abandons it or is dismissed from it; but any period of attendance by the student at his educational establishment in connection with the course which is outside the period of the course shall be treated as part of the period of study;]

[F11“personal pension scheme” has the same meaning as in [F23section 1 of the Pension Schemes Act 1993] and, in the case of a self-employed earner, includes a scheme approved by the Inland Revenue under Chapter IV of Part XIV of the Income and Corporation Taxes Act 1988;]

“policy of life insurance” means any instrument by which the payment of money is assured on death (except death by accident only) or the happening of any contingency dependent on human life, or any instrument evidencing a contract which is subject to payment of premiums for a term dependent on human life;

[F24“polygamous marriage” means any marriage during the subsistence of which a party to it is married to more than one person and the ceremony of marriage took place under the law of a country which permits polygamy;]

[F25“preserved right” means a preserved right for the purpose of regulation 19;]

[F26“qualifying person” means a person in respect of whom payment has been made from the Fund [F27or the Eileen Trust];]

[F28“registered person” means a person registered with a body mentioned in regulation 7D(1)(a)(i) to (iv) of the Child Benefit (General) Regulations 1976 for—

(a)

work; or

(b)

training under the youth training scheme;]

“relative” means close relative, grand-parent, grand-child, uncle, aunt, nephew or neice;

“relevant enactment” has the meaning prescribed in regulation 16(8)(a);

“remunerative work” has the meaning prescribed in regulation 5;

[F29“residential accommodation” except in [F30regulation 19 and Schedule 3B] has the meaning prescribed in regulation 21(3);]

[F25“residential allowance” means the weekly amount determined in accordance with paragraph 2A of Schedule 2;]

“residential care home” has the meaning prescribed in regulation 19(3);

[F31“retirement annuity contract" means a contract or trust scheme approved under Chapter III of Part XIV of the Income and Corporation Taxes Act 1988;]

“self-employed earner” shall be construed in accordance with section 2(1)(b) of the Social Security Act;

“single claimant” means a claimant who neither has a partner nor is a lone parent;

“Social Security Act” means the Social Security Act 1975F32;

“student” has the meaning prescribed in regulation 61;

“supplementary benefit” means a supplementary pension or allowance under section 1 or 4 of the Supplementary Benefits Act 1976F33;

“terminal date” in respect of a claimant means the terminal date in his case for the purposes of regulation 7 of the Child Benefit (General) Regulations 1976 F34;

[F35“the Eileen Trust” means the charitable trust of that name established on 29th March 1993 out of funds provided by the Secretary of State for the benefit of persons eligible for payment in accordance with its provisions;]

[F26“the Fund” means moneys made available from time to time by the Secretary of State for the benefit of persons eligible for payment in accordance with the provisions of a scheme established by him on 24th April 1992 or, in Scotland, on 10th April 1992;]

[F36“the Independent Living (1993) Fund” means the Trust of that name established by a deed dated 25th February 1993 and made between the Secretary of State for Social Security of the one part and Robin Glover Wendt and John Shepherd of the other part;]

[F36“the Independent Living (Extension) Fund” means the Trust of that name established by a deed dated 25th February 1993 and made between the Secretary of State for Social Security of the one part and Robin Glover Wendt and John Fletcher Shepherd of the other part;]

[F37“the Independent Living Fund” means the charitable trust established out of funds provided by the Secretary of State for the purpose of providing financial assistance to those persons incapacitated by or otherwise suffering from very severe disablement who are in need of such assistance to enable them to live independently;]

[F36“the Independent Living Funds” means the Independent Living Fund, the Independent Living (Extension) Fund and the Independent Living (1933) Fund;]

[F38“the Macfarlane (Special Payments) Trust” means the trust of that name, established on 29th January 1990 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia;]

[F39“the Macfarlane (Special Payments) (No. 2) Trust" means the trust of that name, established on 3rd May 1991 partly out of funds provided by the Secretary of State, for the benefit of certain persons suffering from haemophilia and other beneficiaries;]

[F40“the Macfarlane Trust” means the charitable trust, established partly out of funds provided by the Secretary of State to the Haemophilia Society, for the relief of poverty or distress among those suffering from haemophilia;]

“training allowance” means an allowance (whether by way of periodical grants or otherwise) payable—

(a)

out of public funds by a Government department or by or on behalf of the [F41Secretary of State for Employment] [F42, Scottish Enterprise or Highlands and Islands Enterprise];

(b)

to a person for his maintenance or in respect of a member of his family; and

(c)

for the period, or part of the period, during which he is following a course of training or instruction provided by, or in pursuance of arrangements made with, that department or approved by that department in relation to him or so provided or approved by or on behalf of [F43the Secretary of State for Employment][F42, Scottish Enterprise or Highlands and Islands Enterprise],

but it does not include an allowance paid by any Government department to or in respect of a person by reason of the fact that he is following a course of full-time education[F44, other than under arrangements made under section 2 of the Employment and Training Act 1973,] or is training as a teacher;

[F45“voluntary organisation” means a body, other than a public or local authority, the activities of which are carried on otherwise than for profit;]

[F46“water charges” means—

(a)

as respects England and Wales, any water and sewerage charges under Chapter I of Part V of the Water Industry Act 1991;

(b)

as respects Scotland, any water and sewerage charges under Schedule 11 to the Local Government Finance Act 1992;

in so far as such charges are in respect of the dwelling which a person occupies as his home;]

[F47“year of assessment” has the meaning prescribed in section 832(1) of the Income and Corporation Taxes Act 1988;]

“young person” has the meaning prescribed in regulation 14.

[F48“youth training scheme” [F49or youth training] means—

(a)

arrangements made under section 2 of the Employment and Training Act 1973 (functions of the Secretary of State); or

(b)

arrangements made by the Secretary of State for persons enlisted in Her Majesty’s forces for any special term of service specified in regulations made under section 2 of the Armed Forces Act 1966 (power of Defence Council to make regulations as to engagement of persons in regular forces),

for purposes which include the training of persons who, at the beginning of their training, are under the age of 18.]

(2) In these Regulations, unless the context otherwise requires, a reference—

(a)to a numbered Part is to the Part of these Regulations bearing that number;

(b)to a numbered regulation or Schedule is to the regulation in or Schedule to these Regulations bearing that number;

(c)in a regulation or Schedule to a numbered paragraph is to the paragraph in that regulation or Schedule bearing that number;

(d)in a paragraph to a lettered or numbered sub-paragraph is to the sub-paragraph in that paragraph bearing that letter or number.

(3) Unless the context requires otherwise, any reference to the claimant's family or, as the case may be, to a member of his family, shall be construed for the purposes of these Regulations as if it included in relation to a polygamous marriage a reference to any partner and to any child or young person who is treated as the responsibility of the claimant or his partner, where that child or young person is a member of the claimant's household.

Textual Amendments

F2Subsections (3) and (4) of section 61 were added by the Social Security Act 1986 (c. 50), section 39 and Schedule 3, paragraph 6.

F4S.I. 1983/686; the relevant amending instruments are S.I. 1983/1164 and 1984/1675.

F8Words in reg. 2(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 3(a)

F10Words in reg. 2(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 3(b)

F11Words in reg. 2(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 2(a)-(c)

F141985c.69.

F16Words in reg. 2(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 12

F17Section 37A was inserted by section 22(1) of the Social Security Pensions Act 1975 (c. 60) and amended by the National Health Service Act 1977 (c. 49), Schedule 15, paragraph 64, the Social Security Act 1979 (c. 18), section 3 and by Sections 71 and 86 and Schedule 11 of the Social Security Act 1986 (c. 50).

F18S.I. 1983/883; article 26A was added by S.I. 1983/1116 and amended by S.I. 1983/1521 and 1986/592.

F19S.I. 1983/686, amended by S.I. 1983/1164, 1540 and 1986/628.

F20Words in reg. 2(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 22(a)

F30Words in reg. 2(1) substituted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 1

F331976 c. 71, as amended by section 6(1) of, and Part I of Schedules 2 to, the Social Security Act 1980 (c. 30).

F34S.I. 1976/965; the relevant amending instruments are S.I. 1980/1054, 1982/470 and 1987/357.

F46Words in reg. 2(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 3(c)

F47Words in reg. 2(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 22(b)

Commencement Information

I2Reg. 2 in force at 11.4.1988, see reg. 1

Definition of non-dependantE+W+S

3.—(1) In these Regulations, “non-dependant” means any person, except someone [F50to whom paragraph (2), (2A) or (2B) applies], who normally resides with a claimant [F51or with whom a claimant normally resides.]

[F52(2) This paragraph applies to—

(a)any member of the claimant’s family;

(b)a child or young person who is living with the claimant but who is not a member of his household by virtue of regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household);

(c)a person who lives with the claimant in order to care for him or for the claimant’s partner and who is engaged for that purpose by a charitable or [F53voluntary organisation] which makes a charge to the claimant or the claimant’s partner for the care provided by that person;

(d)the partner of a person to whom sub-paragraph (c) applies.

(2A) This paragraph applies to a person, other than a close relative of the claimant or the claimant’s partner,—

(a)who is liable to make payments on a commercial basis to the claimant or the claimant’s partner in respect of his occupation of the claimant’s dwelling;

(b)to whom the claimant or the claimant’s partner is liable to make payments on a commercial basis in respect of his occupation of that person’s dwelling;

(c)who is a member of the household of a person to whom sub-paragraph (a) or (b) applies.

(2B) Subject to paragraph (2C), this paragraph applies to—

(a)a person who jointly occupies the claimant’s dwelling and who is either—

(i)a co-owner of that dwelling with the claimant or the claimant’s partner (whether or not there are other co-owners); or

(ii)jointly liable with the claimant or the claimant’s partner to make payments to a landlord in respect of his occupation of that dwelling;

(b)a partner of a person to whom sub-paragraph (a) applies.

(2C) Where a person is a close relative of the claimant or the claimant’s partner, paragraph (2B) shall apply to him only if the claimant’s, or the claimant’s partner’s, co-ownership, or joint liability to make payments to a landlord in respect of his occupation, of the dwelling arose either before 11th April 1988, or, if later, on or before the date upon which the claimant or the claimant’s partner first occupied the dwelling in question.]

F54(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) For the purposes of this regulation a person resides with another only if they share any accommodation except a bathroom, a lavatory or a communal area [F55but not if each person is separately liable to make payments in respect of his occupation of the dwelling to the landlord].

(5) In this regulation “communal area” means any area (other than rooms) of common access (including halls and passageways) and rooms of common use in sheltered accommodation.

Textual Amendments

F54Reg. 3(3) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 2(b)

F55Words in reg. 3(4) added (with effect in accordance with reg. 1(1)(a) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), regs. 1(1), 2(c)

Commencement Information

I3Reg. 3 in force at 11.4.1988, see reg. 1

[F56Permitted periodE+W+S

3A.—(1) For the purposes of regulation 17(6), F57... paragraph 7(6) of Schedule 3A, paragraph 6(3) of Schedule 3B and paragraphs 4 and 6 of Schedule 8 (applicable amounts, mortgage interest, protected sums and earnings to be disregarded), where a claimant has ceased to be entitled to income support–

(a)because he or his partner becomes engaged in remunerative work the permitted period, subject to paragraph (2), shall be twelve weeks; or

(b)for any other reason, the permitted period shall be eight weeks.

(2) Subject to paragraph (3), where the claimant or his partner has ceased to be engaged in the remunerative work referred to in paragraph (1)(a) the permitted period shall be eight weeks if–

(a)the claimant’s weekly applicable amount is reduced under regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) because of the cessation of that work; or

(b)the claimant or his partner has ceased to be engaged in that work within 6 weeks of beginning it; or

(c)at any time during the period of 26 weeks immediately preceding the beginning of that work, the person who has ceased to be engaged in it–

(i)was engaged in remunerative work; or

(ii)was in relevant education; or

(iii)was a student.

(3) Paragraph (2)(b) or (c) shall not apply if, by virtue of section 20A(2) of the Social Security Act (exemption from disqualification for unemployment benefit) , the person who has ceased to be engaged in remunerative work is exempted from disqualification for receiving unemployment benefit.]

Textual Amendments

PART IIE+W+SCONDITIONS OF ENTITLEMENT

Temporary absence from Great BritainE+W+S

4.—(1) Where a claimant is entitled to income support for a period immediately preceding a period of temporary absence from Great Britain, his entitlement to income support [F58shall continue only—

(a)in the circumstances specified in paragraph (2), during the first 4 weeks of that period of temporary absence; and

(b)in the circumstances specified in paragraph (3), during the first 8 weeks of that period.]

(2) The circumstances in which a claimant's entitlement to income support is to continue during the first four weeks of a temporary absence from Great Britain are that—

(a)the period of absence is unlikely to exceed 52 weeks; and

(b)while absent from Great Britain, the claimant continues to satisfy the other conditions of entitlement to income support; and

(c)any one of the following conditions applies—

(i)the claimant is not required to be available for employment under regulation 8(1) and Schedule 1 other than paragraph 5, 10, 18 to 20 of that Schedule (persons not required to be available for employment); or

(ii)he is not required to be available for employment under regulation 8(1) and paragraph 5 of Schedule 1 (incapacity for work) and his absence from Great Britain is for the sole purpose of receiving treatment from an appropriately qualified person for the incapacity by reason of which he is not required to be so available; or

(iii)he is in Northern Ireland; or

(iv)he is a member of a couple and he and his partner are both absent from Great Britain, and a premium referred to in paragraph 9, 10, 11 or 13 of Schedule 2 (applicable amounts) is applicable in respect of his partner [F59 or

[F60(v)on the day on which the absence began he had satisfied the provisions of paragraph 5 of Schedule 1 (persons incapable of work) for a continuous period of not less than—

(aa)196 days in the case of a claimant who is terminally ill within the meaning of section 30B(4) of the Contributions and Benefits Act, or who is entitled to the highest rate of the care component of disability living allowance; or

(bb)364 days in any other case,

and for this purpose any two or more separate periods separated by a break of not more than 56 days shall be treated as one continuous period.]]

[F61(3) The circumstances in which a claimant’s entitlement to income support is to continue during the first 8 weeks of a temporary absence from Great Britain are that—

(a)the period of absence is unlikely to exceed 52 weeks; and

(b)the claimant continues to satisfy the other conditions of entitlement to income support; and

(c)the claimant is, or the claimant and any other member of his family are, accompanying a member of the claimant’s family who is a child or young person solely in connection with arrangements made for the treatment of that child or young person for a disease or bodily or mental disablement; and

(d)those arrangements relate to treatment—

(i)outside Great Britain;

(ii)during the period whilst the claimant is, or the claimant and any member of his family are, temporarily absent from Great Britain; and

(iii)by, or under the supervision of, a person appropriately qualified to carry out that treatment.]

[F61(4) In paragraphs (2) and (3) “appropriately qualified” means qualified to provide medical treatment, physiotherapy or a form of treatment which is similar to, or related to, either of those forms of treatment.]

Textual Amendments

F58Words in reg. 4(1) substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 3(a)

F61Reg. 4(3)(4) added (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 3(b)

Commencement Information

I4Reg. 4 in force at 11.4.1988, see reg. 1

Persons treated as engaged in remunerative workE+W+S

5.—(1) Subject to the following provisions of this regulation, for the purposes of section 20(3)(c) of the Act (conditions of entitlement to income support), remunerative work is work in which a person is engaged, or, where his hours of work fluctuate, he is engaged on average, for [F62not less than 16 hours] a week being work for which payment is made or which is done in expectation of payment.

(2) [F63Subject to paragraph (3B),] the number of hours for which a person is engaged in work shall be determined—

(a)where no recognisable cycle has been established in respect of a person's work, by reference to the number of hours or, where those hours are likely to fluctuate, the average of the hours, which he is expected to work in a week;

(b)where the number of hours for which he 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 person does no work, those periods but disregarding any other absences);

(ii)in any other case, the period of five weeks immediately before the date of claim or the date of review, or such other length of time as may, in the particular case, enable the person's average hours of work to be determined more accurately.

(3) A person shall be treated as engaged in remunerative work during any period for which he 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.

[F64(3A) A person shall not be treated as engaged in remunerative work on any day on which the person is on maternity leave or is absent from work because he is ill.]

[F65(3B) Where for the purpose of paragraph (2)(b)(i), a person’s recognisable cycle of work at a school, other educational establishment or other place of employment is one year and includes periods of school holidays or similar vacations during which he does not work, those periods and any other periods not forming part of such holidays or vacations during which he is not required to work shall be disregarded in establishing the average hours for which he is engaged in work.]

(4) A person who makes a claim and to whom or whose partner section 23 of the Act (trade disputes) applies [F66or applied] shall, for the period of seven days following the date on which the stoppage of work due to a trade dispute at his or his partner's place of work commenced or, if there is no stoppage, the date on which he or his partner first withdrew his labour in furtherance of a trade dispute, be treated as engaged in remunerative work.

(5) A person who was, or was treated as being, engaged in remunerative work and in respect of that work earnings to which [F67regulation 35(1)(b) to (d) and (i)] (earnings of employed earners) applies are [F68paid] shall be treated as being engaged in remunerative work for the period for which those earnings are taken into account in accordance with Part V.

[F69(6) For the purposes of this regulation, in determining the number of hours in which a person is engaged or treated as engaged in remunerative work, no account shall be taken of any hours in which the person is engaged in an employment or a scheme to which paragraph (a) to [F70paragraph (k)] of regulation 6 (persons not treated as engaged in remunerative work) applies.]

[F71(7) For the purposes of paragraphs (1) and (2), in determining the number of hours for which a person is engaged in work, that number shall include any time allowed to that person by his employer for a meal or for refreshment, but only where that person is, or expects to be, paid earnings in respect of that time.]

Textual Amendments

F62Sch. 9 para. 19 substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 9(3)

F64Reg. 5(3A) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 3(2)

F70Words in reg. 5(6) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 3(3)

F71Reg. 5(7) added (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 4

Commencement Information

I5Reg. 5 in force at 11.4.1988, see reg. 1

Persons not treated as engaged in remunerative workE+W+S

6.  A person shall not be treated as engaged in [F72remunerative work in so far as—]

[F73(a)he is mentally or physically disabled, and by reason of that disability—

(i)his 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)his number of hours of work 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)he is engaged in child minding in his home;

(c)he is engaged by a charity or [F74voluntary organisationF75...,] or is a volunteer where the only payment received by him or due to be paid to him, is a payment which is to be disregarded under regulation 40(2) and paragraph 2 of Schedule 9 (sums to be disregarded in the calculation of income other than earnings);

(d)he is engaged on a scheme for which a training allowance is being paid; F76...

(e)subject to regulation 5(4) [F77and (5)] (persons treated as engaged in remunerative work) he is a person to whom section 23 of the Act (trade disputes) applies [F78or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of the Act (effect of return to work)];F76...

(f)he is a person who is not required to be available for employment because regulation 8 and paragraph 4 of Schedule 1 (person caring for another) applies to him.

[F79(g)he is in employment, and—

(i)lives in, or is temporarily absent from, a residential care home, a nursing home or residential accommodation, and either

(ii)his, or his partner’s, applicable amount falls to be calculated in accordance with Part I of Schedule 4 (applicable amounts of persons in residential care and nursing homes) or, as the case may be, paragraph 9, 10 to 10D, 13, 16 or 18 of Schedule 7 (applicable amounts in special cases), or

(iii)he or his partner satisfies the conditions specified in paragraph 2A(2) of Part I of Schedule 2 (conditions for entitlement to a residential allowance);]

[F80(h)he is engaged in any one of the employments mentioned in heads (a) to (d) of sub-paragraph (1) of paragraph 7 of Schedule 8 (which relates to persons serving as firemen, in coastal rescue activities etc); F81...]

[F80(j)he is performing his duties as a councillor, and for this purpose “councillor” has the same meaning as in paragraph 2(6) of Schedule 8 to the Social Security Act [F821989; or]]

[F83(k)he is engaged in caring for a person who is accommodated with him by virtue of arrangements made under any of the provisions referred to in paragraph 26 [F84or in accordance with paragraph 27] of Schedule 9 (sums to be disregarded in the calculation of income other than earnings) and is in receipt of any payment specified in [F85those paragraphs].]

Textual Amendments

F74Words in reg. 6(c) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 23(a)

F76Word in reg. 6(d)(e) omitted (6.4.1992) by virtue of The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), regs. 1(1), 2(a) (with reg. 1(2))

F81Word in reg. 6(h) revoked (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 13(a)

F82Words in reg. 6(j) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 13(b)

F83Reg. 6(k) added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 13(c)

F84Words in reg. 6(k) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 23(b)

F85Words in reg. 6(k) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 23(b)

Commencement Information

I6Reg. 6 in force at 11.4.1988, see reg. 1

Meaning of employmentE+W+S

7.—[F86(1)] For the purposes of section 20(3)(d) of the Act (conditions of entitlement to income support) [F87in so far as it relates to the condition of availability for employment] only work in employed earner's employment within the meaning of the Social Security Act—

(a)which the claimant can reasonably be expected to do;

(b)for which payment is made or which is done in expectation of payment; and

(c)for which he would normally be engaged for [F88not less than 16 hours] a week or, if he is mentally or physically disabled, such lesser number of hours as, having regard to his disability, he is usually capable of working,

shall be treated as employment.

[F89(2) For the purposes of section 20(3)(d) of the Act in so far as it relates to the condition of actively seeking employment, work which is treated as employment for the purposes of paragraph (1) and employment as a self-employed earner under any scheme for assisting claimants to become self-employed earners established under arrangements made pursuant to section 2 of the Employment and Training Act 1973 [F90or section 2 of the Enterprise and New Towns (Scotland) Act 1990] shall be treated as employment.]

Textual Amendments

Commencement Information

I7Reg. 7 in force at 11.4.1988, see reg. 1

Persons not required to be available for employmentE+W+S

8.—(1) A person, other than one to whom regulation 10(1)(h) applies (circumstances in which a person is to be treated as available for employment), to whom any paragraph of Schedule 1 (persons not required to be available for employment) applies in any week shall not be required to be available for employment in that week.

(2) F91A person, other than one to whom regulation 10(1)(h) applies, to whom none of the provisions of Schedule 1 ... applies, shall, where—

[F92(a)an adjudication officer has determined for the purposes of section 171B of the Contributions and Benefits Act (the own occupation test) that that person is not incapable of work; and.]

(b)that person's medical practitioner continues to supply evidence of his incapacity for work in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976 F93 (evidence of incapacity for work); and

(c)that person has made and is pursuing an appeal against the determination of an adjudication officer that he is not so incapable; and

(d)that person, were he required to be available for employment, would not be treated as so available under regulation 9(1) (persons treated as available for employment),

not be required to be available for employment pending the determination of his appeal.

[F94(2A) A person, other than one to whom paragraph (2) or regulation 10(1)(h) applies, to whom none of the provisions of Schedule 1 applies, shall, where—

(a)an adjudication officer has determined for the purposes of section 171C of the Contributions and Benefits Act (the all work test) that that person is not incapable of work; and

(b)that person has made and is pursuing an appeal against that determination; and

(c)that person, were he required to be available for employment, would not be treated as so available under regulation 9(1) (persons treated as available for employment),

not be required to be available for employment pending the determination of his appeal.]

[F95(3) A person, other than one to whom [F96[F97paragraph (2) or (2A)] or] regulation 10(1)(h) applies, to whom none of the provisions of Schedule 1 applies, shall, for any period when—

(a)he would, were he required to be available for employment, not be treated as so available under regulation 9(1); and

(b)the adjudication officer is satisfied that, unless income Support is paid, the claimant or a member of his family (if any) will suffer hardship,

not be required to be available for employment.]

Textual Amendments

F93S.I. 1976/615; the relevant amending instruments are S.I. 1982/699 and 1987/409.

Commencement Information

I8Reg. 8 in force at 11.4.1988, see reg. 1

Persons treated as available for employmentE+W+S

9.—(1) Except in a case to which regulation 10 (circumstances in which claimants are not to be treated as available for employment) applies, a claimant shall be treated as available for employment if, and only if—

(a)he is available to be employed within the meaning of section 17(1)(a)(i) of the Social Security Act F98 or Regulations made under it (requirement to be available to be employed for the purposes of unemployment benefit) in employment to which regulation 7 applies (meaning of employment); or

(b)he is normally engaged for less than the number of hours prescribed in paragraph (c) of regulation 7 in respect of him in employment to which that regulation applies, and he is available, within the meaning of section 17(1)(a)(i) or Regulations made under it, for such further number of hours which would, in aggregate with the number of hours for which he is normally engaged, be not less than the number of hours prescribed in paragraph (c) of regulation 7 for his case; or

(c)he satisfies the conditions in paragraph (2) and is attending—

(i)a course of education at an establishment recognised by the Secretary of State as being, or as comparable to, a school or college; or

(ii)a course of training or instruction analogous to a course for which a training allowance would be payable,

and, in either case, he is prepared to terminate the course immediately a suitable vacancy becomes available to him.

(2) the conditions referred to in paragraph (1)(c) are that either—

(a)the claimant was, for a continuous period of not less than three months falling immediately before the commencement date,—

(i)in receipt of a qualifying benefit; or

(ii)on a course of training or instruction organised by or on behalf of [F99Scottish Enterprise, Highlands and Islands Enterprise or] the [F100Secretary of State for Employment] as part of the Youth Training Scheme [F101or Youth Training]; or

(b)during the period of six months falling immediately before the commencement date the claimant was—

(i)for a period, or periods in aggregate, of not less than three months in receipt of a qualifying benefit or on a course of training or instruction organised by or on behalf of [F102Scottish Enterprise, Highlands and Islands Enterprise or] the [F103Secretary of State for Employment] as part of the Youth Training Scheme [F104or Youth Training]; and

(ii)after the period referred to in head (i) of this sub-paragraph or, in the case of periods in aggregate, after the first such period and throughout the remainder of the six months for which that head did not apply to him, engaged in appropriate work;

and that the period of three months referred to in sub-paragraph (a) or, as the case may be, the period of six months referred to in sub-paragraph (b) fell wholly after the terminal date.

(3) In this regulation—

“appropriate work” means remunerative work for the purpose of section 20(3)(c) of the Act (conditions of entitlement to income support) or other work the emoluments from which are such as to disentitle the person engaged in it from a qualifying benefit;

“commencement date” means the date on which the claimant first attended the course of education or course of training or instruction;

“course” means a course in the pursuit of which the time spent receiving instruction or tuition, undertaking supervised study, examination or practical work or taking part in any exercise, experiment or project for which provision is made in the curriculum of the course does not, subject to paragraph (4), exceed 21 hours a week;

“qualifying benefit” means unemployment benefit or [F105short-term incapacity benefit] F106 or, in the case of a claimant who is required to be available for employment under section 20(3)(d) of the Act (conditions of entitlement to income support) or who is not so required under paragraph 5 of Schedule 1 (persons not required to be available by reason of sickness or incapacity), income support.

(4) In calculating the time spent in pursuit of a course for the purpose of this regulation, no account shall be taken of time occupied by meal breaks or spent on unsupervised study, whether undertaken on or off the premises of the educational establishment or place of instruction or training.

Textual Amendments

F981975 c. 14; section 17(1) was amended by the Social Security (No. 2) Act 1980 (c. 39), sections 3(1), 7(6) and the Schedule.

Commencement Information

I9Reg. 9 in force at 11.4.1988, see reg. 1

Circumstances in which claimants are not to be treated as available for employmentE+W+S

10.—(1) A claimant shall not be treated as available for employment if he is a person to whom any one of the following sub-paragraphs applies—

(a)after a situation in any F107... employment has been properly notified to him as vacant or about to become vacant he has without good cause refused or failed to apply for that situation or refused to accept that situation when offered to him, and that situation is still vacant or open to application;

(b)he has neglected to avail himself of a reasonable opportunity of F108... employment and that opportunity is still available to him;

(c)he has failed to avail himself of a reasonable opportunity of short-term work which is available in the area in which he lives, and—

(i)he is aged 18 or over but under 45;

(ii)his partner, if any, is aged under 45;

(iii)there is no child or young person who is a member of his family;

(iv)his partner or, as the case may be, the claimant herself is not pregnant; and

(v)neither he nor his partner, if any, is mentally or physically disabled;

(d)[F109subject to paragraphs (4) to (6),] he has placed restrictions on the nature, hours, rate of remuneration or locality or other conditions of employment which he is prepared to accept and as a consequence of those restrictions he has no reasonable prospects of securing employment; but this sub-paragraph shall not apply where—

(i)he is prevented from having reasonable prospects of securing employment consistent with those restrictions only as a result of adverse industrial conditions in the locality or localities concerned which may reasonably be regarded as temporary, and, having regard to all the circumstances, personal and other, the restrictions which he imposes are reasonable; or

[F110(ii)the restrictions are reasonable in view of his physical or mental condition; or

(iii)he has a usual occupation and those restrictions relate to it and are consistent with conditions which are usual in that occupation]

(e)having failed to comply with a written notice given or sent to him by or on behalf of the Secretary of State or the [F111Secretary of State for Employment] requesting him to report at a specified time, place and date to an officer of the Department of Health and Social Security, the Department of Employment [F112or a local education authority] for an interview in connection with his prospects of employment, he fails without good cause to comply with the requirements of a further notice given or sent to him within 14 days of the date specified in the first notice by or on behalf of the Secretary of State or, as the case may be, the Training Commission and requesting him to report as aforesaid at a time, place and date specified in the further notice for the purpose of such an interview;

(f)he has been disallowed unemployment benefit on the ground that he failed to claim in the manner prescribed by regulation 4 of the Social Security (Claims and Payments) Regulations 1987 F113 (making a claim for benefit) by virtue of the fact that the form approved by the Secretary of State for the purpose of claiming was not duly completed so far as it related to his availability for employment; or

(g)he is a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975 F114 who is not entitled to unemployment benefit under the Social Security Act because he has failed to satisfy the additional condition for receipt of that benefit in paragraph (5) or (8) of regulation 8 of those Regulations (that he performed no work as a sea-going or on-shore share fisherman and that he has not neglected to avail himself of a reasonable opportunity of employment as a fisherman);

[F115(h)he is a student during the period of study, other than—

(i)one to whom paragraph 1, 2, [F1167 to 7B], 11, 16 or 20 of Schedule 1 applies (persons not required to be available for employment) but in the case of paragraph 20 only where the student is a person to whom regulation 70 (3) (a) applies (certain persons from abroad); or

(ii)one who has a partner who is also a student, if either he or his partner is treated as responsible for a child or young person, but this exception shall apply only for the period of the summer vacation appropriate to his course.]

(2) A determination that a claimant is not to be treated as available for employment—

(a)under paragraph (1)(a), shall apply for a period not exceeding—

(i)the period during which the situation in question remains vacant; or

(ii)[F11726] weeks,

whichever is the shorter;

(b)under paragraph (1)(b), shall apply for a period not exceeding—

(i)the period during which the opportunity is still available to him; or

(ii)[F11726] weeks,

whichever is the shorter;

(c)under paragraph (1)(c)—

(i)shall not apply until the claimant has been given 14 days' notice in writing and that period has expired, and then

(ii)shall apply for a period not exceeding the period during which the opportunity is still available to him or, if shorter, the period of [F11726] weeks;

(d)under paragraph (1)(d), shall apply for so long as the claimant has no reasonable prospect of employment as a consequence of the restrictions referred to in that paragraph;

(e)under paragraph (1)(e), shall apply on the day specified in the further notice and any subsequent day falling before the day on which the claimant reports to an officer of the Department of Health and Social Security, the Department of Employment [F118or a local education authority] at the place specified in the notice and there attends an interview in connection with his prospects of employment or before the day on which the Secretary of State or, as the case may be, the [F119Secretary of State for Employment] rescinds the further notice, whichever event first occurs;

(f)under paragraph (1)(f), shall apply for so long as the claimant fails to claim in the manner referred to in that paragraph;

(g)under paragraph (1)(g) or (h), shall apply for so long as that paragraph continues to apply to him.

(3) In this regulation—

F120(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b)“properly notified” means notified by an officer acting on behalf of the Secretary of State, or by the [F121Secretary of State for Employment], a local education authority or some other recognised agency, or by or on behalf of an employer.

[F122(4) A determination that paragraph (1)(d) does not apply by reason of the circumstances prescribed in head (iii) of that paragraph shall have effect for a period not exceeding 13 weeks beginning—

(a)in a case where the claimant is not entitled to unemployment benefit and has not been entitled to that benefit for any day since he was last in remunerative work, on the first day for which the claimant makes a claim for income Support since the last day on which he was in remunerative work, or vocational training in his usual occupation, or incapable of work;

(b)in any other case, on the first day for which a claim for unemployment benefit is made since the claimant was last in remunerative work.]

[F122(5) In determining the length of the period for the purposes of paragraph (4) regard shall be had to—

(a)the claimant’s usual occupation and any relevant skills and qualifications which he has acquired;

(b)the length of the periods during which he has undergone training relevant to his usual occupation;

(c)the length of the periods during which he has been employed in his usual occupation and the period since he was last so employed; and

(d)the availability and location of employment in his usual occupation.]

[F122(6) For the purposes of paragraph (1)(d), in deciding whether a claimant has no reasonable prospects of securing employment regard shall be had, in particular, to the length of the period during which he has been unemployed.]

Textual Amendments

Commencement Information

I10Reg. 10 in force at 11.4.1988, see reg. 1

[F123Actively seeking employmentE+W+S

10A.—(1) A claimant shall not be required to be a person who is actively seeking employment where, by virtue of regulation 8 (persons not required to be available for employment), he is not required to be available for employment.

[F124(2) A claimant, other than a person to whom regulation 10(1)(h) applies, shall not be required to be a person who is actively seeking employment during any week in which—

(a)the claimant—

(i)is a single woman and is pregnant, and

(ii)the adjudication officer is satisfied that, unless income support is paid, the claimant will suffer hardship; or

(b)the claimant is a member of a married or unmarried couple where—

(i)one member of that couple is pregnant, and

(ii)the adjudication officer is satisfied that, unless income support is paid, that member will suffer hardship; or

(c)the claimant is a member of a married or unmarried couple where—

(i)he or his partner, or both of them, are responsible for a child or young person, and

(ii)the adjudication officer is satisfied that, unless income support is paid, the child or young person will suffer hardship; or

(d)the claimant’s applicable amount includes a disability premium under Part III of Schedule 2 (premiums) and the adjudication officer is satisfied that, unless income support is paid, the person, whether the claimant or his partner, who satisfies the additional condition in paragraph 12 of that Schedule for the award of the premium will suffer hardship.]

(3) Subject to paragraph (4), a claimant shall be treated as actively seeking employment in any week if, and only if, he takes such steps in that week as he would be required to take under regulations made under subsection (2)(aa)(i) of Section 17 of the Social Security Act in order to be regarded as actively seeking employed earner’s employment in that week for the purposes of that section.

(4) A claimant shall be treated as actively seeking employment in respect of any week for which he is, or would have been had he made a claim for unemployment benefit, deemed to have been actively seeking employment under regulations made under section 17(1)(a)(i) of the Social Security Act.

(5) For the purposes of this regulation, in relation to a claimant,

  • “week” has the meaning prescribed in regulations made under section 17(2)(aa)(ii) of the Social Security Act which—

    (a)

    if he is entitled to unemployment benefit, applies in his case; and

    (b)

    if he is not entitled to unemployment benefit, would have applied in his case if each of the days for which he claims income support would have fallen within a period of interruption of employment had he claimed unemployment benefit under that Act in respect of those days.]

Textual Amendments

Registration for employmentE+W+S

11.—(1) Subject to [F125paragraphs (2) and (2A)], a claimant who—

(a)is aged less than 18; and

(b)is required to be available for employment for the purposes of section 20(3)(d)(i) of the Act (conditions of entitlement to income support);

must also be registered for employment in accordance with paragraph (3).

(2) A claimant other than one to whom regulation 10(1)(h) (circumstances in which claimants are not to be treated as available for employment) applies and who would, but for this paragraph, be required to be registered for employment in accordance with paragraph (3), shall not be required so to register for employment if—

[F126(a)an adjudication officer has determined for the purposes of section 171B of the Contributions and Benefits Act (the own occupation test) that that claimant is not incapable of work; and]

(b)the claimant's medical practitioner continues to supply evidence of his incapacity for work in accordance with regulation 2 of the Social Security (Medical Evidence) Regulations 1976F127 (evidence of incapacity); and

(c)the claimant has made and is pursuing an appeal against the determination of an adjudication officer that he is not so incapable.

[F128(2A) A claimant, other than one to whom paragraph (2) or regulation 10(1)(h) applies, who would, but for this paragraph, be required to be registered for employment in accordance with paragraph (3), shall not be required so to register for employment if—

(a)an adjudication officer has determined for the purposes of section 171C of the Contributions and Benefits Act (the all work test) that that claimant is not incapable of work; and

(b)that claimant has made and is pursuing an appeal against that determination.]

(3) A claimant to whom paragraph (1) applies shall, except where the Secretary of State decides otherwise, be registered for employment by registering with the [F129Secretary of State for Employment] or a local education authority.

Textual Amendments

F127S.I. 1976/615, the relevant amending instruments are S.I. 1982/699 and S.I. 1987/409.

Commencement Information

I11Reg. 11 in force at 11.4.1988, see reg. 1

[F130Relevant EducationE+W+S

12.—(1) For the purposes of these Regulations a child or young person is to be treated as receiving relevant education if, and only if—

(a)he is not receiving advanced education; but

(b)he is receiving full-time education for the purposes of section 2 of the Child Benefit Act 1975 (meaning of child) or, as the case may be, he is treated as a child for the purposes of that section.

(2) For the purposes of this regulation “receiving advanced education” means participating in any course (whether full-time or part-time)—

(a)leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education, [F131a higher national diploma or higher national certificate of either the Business & [F132Technology] Education Council] or the Scottish Vocational Education Council or a teaching qualification; or

(b)any other course which is a course of a standard above ordinary national diploma, [F133a national diploma or national certificate of either the Business & [F132Technology] Education Council or the Scottish Vocational Education Council], a general certificate of education (advanced level), a Scottish certificate of education [F134(higher level)] or a Scottish certificate of sixth year studies.]

Textual Amendments

F130Reg. 12 substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 5

F131Words in reg. 12(2)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 14(a)

F132Word in reg. 12(2) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 4

F133Words in reg. 12(2)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 14(b)(i)

F134Words in reg. 12(2)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 14(b)(ii)

Commencement Information

I12Reg. 12 in force at 11.4.1988, see reg. 1

Circumstances in which persons in relevant education are to be entitled to income supportE+W+S

13.—(1) Notwithstanding that a person is to be treated as receiving relevant education under regulation 12 (relevant education) he shall, if paragraph (2) applies to him and he satisfies the other conditions of entitlement to income support, be entitled to income support.

(2) This paragraph applies to [F135a person aged 16 or over but under 19 (hereinafter referred to as an eligible person)] who—

(a)is the parent of a child for whom he is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) and who is treated as a member of his household under regulation 16 (circumstances in which a person is to be treated as being or not being a member of the household); or

(b)is severely mentally or physically handicapped and because of that he would be unlikely, even if he were available for employment, to obtain employment within the next 12 months; or

(c)has no parent nor any person acting in the place of his parents; or

[F136(d)of necessity has to live away from his [F137parents and any] person acting in the place of his parents because–

(i)he is estranged from his [F137parents and that person]; or

(ii)he is in physical or moral danger; or

(iii)there is a serious risk to his physical or mental health;]

[F138(dd)has ceased to live in accommodation provided for him by a local authority under Part III of the Children Act 1989(local authority support for children and families) and is of necessity living away from his parents and any person acting in place of his parents;]

(e)is living away from his parents and any person acting in the place of his parents in a case where his parents are or, as the case may be, that person is unable financially to support him and—

(i)chronically sick or mentally or physically disabled; or

(ii)detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(iii)prohibited from entering or re-entering Great Britain; or

(f)is attending a course of education to which regulation 9 (persons treated as available for employment) applies and satisfies the other conditions of that regulation; or

(g)has completed or terminated such a course and while attending that course satisfied the other conditions of that regulation; or

(h)he is a person to whom paragraph 16 of Schedule 1 (refugees not required to be available for employment) applies.

(3) In this regulation—

[F139(a)any reference to a person acting in the place of an eligible person’s parents includes—

(i)for the purposes of paragraph (2)(c), (d) and (dd), a reference to a local authority or voluntary organisation where the eligible person is being looked after by them under a relevant enactment or where the eligible person is placed by the local authority or voluntary organisation with another person, that other person, whether or not a payment is made to him;

(ii)for the purposes of paragraph (2)(e), the person with whom the person is so placed;]

(b)“chronically sick or mentally or physically disabled” means, in relation to a person to whom that expression refers, a person—

(i)in respect of whom the condition specified in paragraph 12(1) of Schedule 2 (additional condition for the higher pensioner and disability premiums) is satisfied; or

(ii)in respect of whom an amount under article 26 of the Naval, Military and Air Forces etc (Disablement and Death) Service Pensions Order 1983 F140 (provision of expenses in respect of appropriate aids for disabled living) is payable in respect of the cost of providing a vehicle, or maintaining a vehicle to a disabled person; or

(iii)who is substantially and permanently disabled.

Textual Amendments

F139Reg. 13(3)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 2 (with Sch. para. 11)

Commencement Information

I13Reg. 13 in force at 11.4.1988, see reg. 1

[F141Persons under 18 yearsE+W+S

13A.—(1) A person to whom this regulation applies and for the period specified in relation to him is a person within the prescribed circumstances and period mentioned in section 20(3)(a) of the Act (conditions of entitlement for persons under 18).

(2) This regulation applies to a person of or over the age of 16—

(a)to whom any paragraph of Schedule 1A (circumstances in which a person aged 16 or 17 is eligible for income support) applies; and

(b)for the period for which that paragraph applies or, if the relevant date specified in paragraph (3) falls within that period, for so much thereof [F142as falls on or before] that date.

(3) In the case of a person—

(a)to whom any paragraph in Part I (persons eligible until 18) of Schedule 1A applies, the relevant date [F143is the day before the date] on which he attains the age of 18;

(b)other than one to whom sub-paragraph (a) applies, to whom any paragraph in Part II (persons eligible until the relevant date) of that Schedule applies, the relevant date is the date determined in accordance with paragraph (7).

(4) This regulation also applies to a person of, or over, the age of 16, other than one to whom any paragraph in [F144Part I of Schedule 1A] applies who is—

(a)incapable of work and training under the youth training scheme [F145or youth training] by reason of some disease or bodily or mental disablement if, in the opinion of a medical practitioner, that incapacity is likely to end within a period of less than 12 months; or

F146(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)a registered person who has been discharged from any institution to which the Prison Act 1952 applied or from custody under the Criminal Procedure (Scotland) Act 1975 after the relevant date determined in accordance with paragraph (7) and who is within the circumstances specified in Part II of Schedule 1A.

[F147(d)a registered person who has ceased to live in accommodation provided for him by a local authority under Part III of the Children Act 1989 (local authority support for children and families) and is of necessity living away from his parents and any person acting in place of his parents.]

[F148(5) Paragraph (4)(a) shall have effect for a period—

(a)beginning on the date on which paragraph (4)(a) applies to that person which first falls after the relevant date determined in accordance with paragraph (7); and

(b)ending on the day before the date on which that person attains the age of 18 or the date on which paragraph (4)(a) ceases to apply to him, whichever first occurs.]

(6) Paragraph (4)(c) shall have effect for a period—

(a)beginning on [F149the date] on which paragraph (4)(c) applies to that person which first falls F150... after the relevant date determined in accordance with paragraph (7); and

[F151(b)ending on the last day of the period of eight weeks beginning with the date specified in sub-paragraph (a) or on the day before the date on which that person attains the age of 18, whichever first occurs.]

[F152(6A) Paragraph (4)(d) shall have effect for a period—

(a)beginning on the day on which that paragraph first applies to that person; and

(b)ending on the day before the day on which that person attains the age of 18 or the day at the end of a period of 8 weeks immediately following the day on which paragraph (4)(d) first had effect in relation to him, whichever is the earlier.]

[F152(6B) The period mentioned in paragraph (6A) may include any week in which regulation 7 of the Child Benefit (General) Regulations 1976 (circumstances in which a person who has ceased to receive full-time education is to continue to be treated as a child) also applies to that person.]

(7) For the purposes of paragraphs (3)(b) and (4) to (6)—

(a)in the case of a person who ceases to be treated as a child by virtue of section 2(1)(a) of the Child Benefit Act 1975 (meaning of child) or regulation 7 of the Child Benefit (General) Regulations 1976 (circumstances in which a person who has ceased to receive full-time education is to continue to be treated as a child)—

(i)on or after the first Monday in September, but before the first Monday in January of the following year, the relevant date is the last day of the week which falls immediately before the week which includes the first Monday in January in that year;

(ii)on or after the first Monday in January but before the Monday following Easter Monday in that year, the relevant date is the last day of the week which falls 12 weeks after the week which includes the first Monday in January in that year;

(iii)at any other time of the year, the relevant date is last day of the week which falls 12 weeks after the week which includes the Monday following Easter Monday in that year;

(b)in the case of a person who was not treated as a child by virtue of section 2(1)(a) of that Act immediately before he was 16 and who has not been treated as a child by virtue of regulation 7 of those Regulations (interruption of full-time education), the relevant date is the date determined in accordance with sub-paragraph (a)(i), (ii) or (iii) as if he had ceased full-time education on the first date on which education ceased to be compulsory for a person of his age in England and Wales or, if he is resident in Scotland, in Scotland.]

[F153(8) In this regulation, any reference to a person acting in place of a registered person’s parents has the same meaning as it has in Schedule 1A by virtue of paragraph 10 of that Schedule.]

Textual Amendments

PART III E+W+SMEMBERSHIP OF THE FAMILY

Persons of a prescribed descriptionE+W+S

14.—(1) Subject to paragraph (2), a person of a prescribed description for the purposes of section 20(11) of the Act as it applies to income support (definition of the family) and section 23(1) [F154and (3)] of the Act (trade disputes) is a person aged 16 or over but under 19 who is treated as a child for the purposes of section 2 of the Child Benefit Act 1975 (meaning of child), and in these Regulations such a person is referred to as a “young person”.

(2) Paragraph (1) shall not apply to [F155a person who is receiving advanced education within the meaning of regulation 12(2) (relevant education) or to] a person who is entitled to income support or would, but for section 20(9) of the Act (provision against dual entitlement of members of family), be so entitled.

Textual Amendments

F155Words in reg. 14(2) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 6

Commencement Information

I14Reg. 14 in force at 11.4.1988, see reg. 1

Circumstances in which a person is to be treated as responsible or not responsible for anotherE+W+S

15.—[F156(1) Subject to the following provisions of this regulation, a person is to be treated as responsible for a child or young person for whom he is receiving child benefit.

(1A) In a case where a child (“the first child”) is in receipt of child benefit in respect of another child (“the second child”), the person treated as responsible for the first child in accordance with the provisions of this regulation shall also be treated as responsible for the second child.

(2) In the case of a child or young person in respect of whom no person is receiving child benefit, the person who shall be treated as responsible for that child or young person shall be—

(a)except where sub-paragraph (b) applies, the person with whom the child or young person usually lives; or

(b)where only one claim for child benefit has been made in respect of the child or young person, the person who made that claim.]

(3) Where regulation 16(6) (circumstances in which a person is to be treated as being or not being a member of the household) applies in respect of a child or young person, that child or young person shall be treated as the responsibility of the claimant for that part of the week for which he is under that regulation treated as being a member of the claimant's household.

(4) Except where paragraph (3) applies, for the purposes of these Regulations a child or young person shall be treated as the responsibility of only one person in any benefit week and any person other than the one treated as responsible for the child or young person under this regulation shall be treated as not so responsible.

Textual Amendments

Commencement Information

I15Reg. 15 in force at 11.4.1988, see reg. 1

Circumstances in which a person is to be treated as being or not being a member of the householdE+W+S

16.—(1) Subject to paragraphs (2) to (5), the claimant and any partner and, where the claimant or his partner is treated as responsible under regulation 15 (circumstances in which a person is to be treated as responsible or not responsible for another) for a child or young person, that child or young person and any child of that child or young person shall be treated as members of the same household [F157notwithstanding that any of them] [F158is temporarily living away from the other members of his family].

[F159(2) Paragraph (1) shall not apply to a person who is living away from the other members of his family where—

(a)that person does not intend to resume living with the other members of his family; or

(b)his absence from the other members of his family is likely to exceed 52 weeks, unless there are exceptional circumstances (for example the person is in hospital or otherwise has no control over the length of his absence), and the absence is unlikely to be substantially more than 52 weeks.]

(3) Paragraph (1) shall not apply in respect of any member of a couple or of a polygamous marriage where—

(a)one, both or all of them are patients detained in a hospital provided under section 4 of the National Health Service Act 1977 F160 (special hospitals) or section 90(1) of the Mental Health (Scotland) Act 1984 F161 (provision of hospitals for patients requiring special security); or

(b)one, both or all of them are detained in custody pending trial or sentence upon conviction or whilst serving a sentence imposed by a court; or

F162(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d)the claimant is abroad and does not satisfy the conditions of regulation 4 (temporary absence from Britain); or

(e)one of them is permanently in residential accommodation or a residential care home or a residential nursing home.

(4) A child or young person shall not be treated as a member of the claimant's household where he is—

[F163(a)placed with the claimant or his partner by a local authority under section 23(2)(a) of the Children Act 1989 or by a voluntary organisation under section 59(1)(a) of that Act; or

(b)placed with the claimant or his partner prior to adoption; or]

(c)placed for adoption with the claimant or his partner pursuant to a decision under the Adoption Agencies Regulations 1983 F164 or the Adoption Agencies (Scotland) Regulations 1984F165.

(5) Subject to paragraph (6), paragraph (1) shall not apply to a child or young person who is not living with the claimant [F166and who]—

(a)[F167in a case which does not fall within sub-paragraph (aa),] has been continuously absent from Great Britain for a period of more than four weeks commencing—

(i)where he went abroad before the date of claim for income support, with that date;

(ii)in any other case, [F168on the day which immediately follows the day] on which he went abroad; or

[F169(aa)where regulation 4(3) or paragraph 11A or 12A of Schedule 7 (temporary absence abroad for the treatment of a child or young person) applies, has been continuously absent from Great Britain for a period of more than 8 weeks, that period of 8 weeks commencing—

(i)where he went abroad before the date of the claim for income support, on the date of that claim;

(ii)in any other case, on the day which immediately follows the day on which he went abroad; or]

(b)has been an in-patient or in [F170accommodation provided under any of the provisions referred to in [F171any of sub-paragraphs (a) to (d) ([F172excluding heads (i) and (ii)] of sub-paragraph (d)) of the definition of residential accommodation”] in regulation 21(3)] for a continuous period of more than 12 weeks commencing—

(i)where he became an in-patient or, as the case may be, entered that accommodation before the date of the claim for income support, with that date; or

(ii)in any other case, with the date on which he became an in-patient or entered that accommodation,

and, in either case, has not been in regular contact with either the claimant or any member of the claimant's household; or

[F173(c)is being looked after by a local authority under a relevant enactment; or

(d)has been placed with a person other than the claimant prior to adoption; or]

(e)has been placed for adoption pursuant to a decision under the Adoption Agencies Regulations 1983 or the Adoption Agencies (Scotland) Regulations 1984; or

(f)is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court.

(6) A child or young person to whom any of the circumstances mentioned in sub-paragraphs (c) or (f) of paragraph (5) applies shall be treated as being a member of the claimant's household only for that part of any benefit week where that child or young person lives with the claimant.

(7) Where a child or young person for the purposes of attending the educational establishment at which he is receiving relevant education is living with the claimant or his partner and neither one is treated as responsible for that child or young person that child or young person shall be treated as being a member of the household of the person treated as responsible for him and shall not be treated as a member of the claimant's household.

(8) In this regulation—

[F174(a)“relevant enactment” means the Army Act 1955, the Social Work (Scotland) Act 1968, the Matrimonial Causes Act 1973, the Adoption (Scotland) Act 1978, the Family Law Act 1986 and the Children Act 1989]

(b)“voluntary organisation” has the meaning assigned to it in the [F175Children Act 1989] or, in Scotland, the Social Work (Scotland) Act 1968.

Textual Amendments

F158Words in reg. 16(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 6(2)

F1601977 c. 49; section 4 was amended by section 148, Schedule 4, paragraph 47 of the Mental Health Act 1983 (c. 20).

F163Reg. 16(4)(a)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(a) (with Sch. para. 11)

F167Words in reg. 16(5)(a) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(a)

F168Words in reg. 16(5)(a) substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(a)

F169Reg. 16(5)(aa) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 7(b)

F171Words in reg. 16(5)(b) substituted (with effect in accordance with reg. 1(1)(a) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), regs. 1(1), 3

F172Words in reg. 16(5)(b) substituted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 3

F173Reg. 16(5)(c)(d) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(b) (with Sch. para. 11)

F174Reg. 16(8)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(c)(i) (with Sch. para. 11)

F175Words in reg. 16(8)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 3(c)(ii) (with Sch. para. 11)

Commencement Information

I16Reg. 16 in force at 11.4.1988, see reg. 1

PART IVE+W+SAPPLICABLE AMOUNTS

Applicable amountsE+W+S

17.—(1) Subject to regulations 18 to 22 and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), a claimant's weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:

(a)an amount in respect of himself or, if he is a member of a couple, an amount in respect of both of them, determined in accordance with paragraph 1 (1), (2) or (3), as the case may be, of Schedule 2;

(b)an amount determined in accordance with paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family, except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F176except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000;

[F177(bb)an amount in respect of himself, or where the claimant is a member of a family, an amount in respect of any member of the family aged 16 or over, determined in accordance with paragraph 2A of Schedule 2 (residential allowance);]

(c)if he is a member of a family of which at least one member is a child or young person, an amount determined in accordance with Part II of Schedule 2 (family premium);

(d)the amount of any premiums which may be applicable to him, determined in accordance with Parts III and IV of Schedule 2 (premiums);

(e)any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule.

[F178(f)any amounts determined in accordance with [F179paragraphs (2) to (7)].]

[F180(g)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A] [F181or, as the case may be, 3B].

[F182(2) Where —

(a)a claimant has throughout the period beginning on 11th April 1988 and ending immediately before the coming into force of paragraphs 25 to 28 of Schedule 10 (capital to be disregarded) failed to satisfy the capital condition in section 22(6) of the Act (no entitlement to benefit if capital exceeds prescribed amount); and

(b)as a consequence he is not entitled to any transitional addition, special transitional addition or personal expenses addition under Part II of the Transitional Regulations; and

(c)had those paragraphs been in force on 11th April 1988 he would have satisfied that condition and been entitled to any such addition,

the amount applicable under this paragraph shall, subject to paragraph (3), be equal to the amount of any transitional addition, special transitional addition and personal expenses addition to which he would be entitled under Part II of the Transitional Regulations had he been entitled to any such addition in the week commencing 11th April 1988.]

[F182(3) For the purposes of paragraph (2), in determining a claimant’s total benefit income in his second benefit week for the purpose of calculating the amount of any transitional addition to which he would have been entitled, no account shall be taken of any payment referred to in paragraph (1)(j) of regulation 9 of the Transitional Regulations (total benefit income) which is made in respect of that week to compensate for the loss of entitlement to income support.]

[F182(4) Subject to paragraph (6), where —

(a)the claimant or any member of his family was temporarily absent from his home in the claimant’s first or second benefit week (or both), because he was —

(i)a patient; or

(ii)outside Great Britain for the purpose of receiving treatment for any disease or bodily or mental disablement or for the purpose of accompanying a child or young person who is outside Great Britain for the purpose of receiving such treatment; or

(iii)in a residential care or nursing home or in accommodation provided under any of the provisions referred to in any of sub-paragraphs (a) to (d) of the definition of residential accommodation in regulation 21(3) (special cases); or

(iv)in the care of a local authority under a relevant enactment; or

(v)staying with a person who was contributing to his maintenance; and

(b)as a result —

(i)in the claimant’s first benefit week his requirements for the purpose of calculating his entitlement to supplementary benefit were increased or reduced or he was not entitled to that benefit; or

(ii)in the claimant’s second benefit week his applicable amount was increased or reduced or he was not entitled to income support; and

(c)the period during which his requirements were, or his applicable amount was, increased or reduced, or he was not entitled to benefit, or any one or more of those circumstances existed, did not exceed 8 weeks,

the amount applicable under this paragraph shall be equal to the amount determined under paragraph (5).]

[F182(5) The amount for the purposes of paragraph (4) shall be an amount equal to the difference between —

(a)the amount that his total benefit income in his first benefit week would have been had he been entitled in respect of that week to supplementary benefit calculated on the basis that he or any member of his family had not been absent from the home; and, if less,

(b)the amount of his total benefit income in the first complete week after the period of temporary absence ends; but for the purpose of calculating his total benefit income in that week —

(i)no account shall be taken of any payment referred to in paragraph (1)(j) of regulation 9 of the Transitional Regulations which is made in respect of that week to compensate for the loss (in whole or in part) of entitlement to income support; and

(ii)if the period of temporary absence ends after the coming into force of paragraph (4), the amount of income support to be taken into account shall, notwithstanding regulation 9(6) of the Transitional Regulations, be calculated as if that paragraph were not in force.]

[F182(6) The amount under paragraph (4) shall cease to be applicable to a claimant if he ceases to be entitled to income support for a period exceeding [F183the permitted period determined in accordance with regulation 3A (permitted period)].]

[F184(6A) For the purposes of paragraph (6), where a claimant has ceased to be entitled to income support because he or his partner is participating in arrangements for training made under section 2 of the Employment and Training Act 1973 [F185or section 2 of the Enterprise and New Towns (Scotland) Act 1990] or attending a course at an employment rehabilitation centre established under that section [F186of the 1973 Act], he shall be treated as if he had been entitled to income support for the period during which he or his partner is participating in such arrangements or attending such a course.]

[F182(7) In this Regulation —

“first benefit week” and “second benefit week” have the meanings given to those expressions in regulations 2(1) of the Transitional Regulations and shall also include the week which would have been the claimant’s “first benefit week” or, as the case may be, “second benefit week” had he been entitled to supplementary benefit or, as the case may be, income support in that week;

“total benefit income” has, subject to paragraphs (3) and (5)(b), the same meaning as in regulation 9 of the Transitional Regulations;

“Transitional Regulations” means the Income Support (Transitional) Regulations 1987.]

Textual Amendments

F176Words in reg. 17(1)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 7

F181Words in reg. 17(1)(g) added (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 17

Modifications etc. (not altering text)

C1Reg. 17(1)(b) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

Commencement Information

I17Reg. 17 in force at 11.4.1988, see reg. 1

Polygamous marriagesE+W+S

18.—[F187(1)] [F188Subject to paragraph (2) and regulations] 19 to 22 and 70 (applicable amounts in other cases and reductions in applicable amounts and urgent cases), where a claimant is a member of a polygamous marriage his weekly applicable amount shall be the aggregate of such of the following amounts as may apply in his case:

(a)the highest amount applicable to him and one of his partners determined in accordance with sub-paragraph (3) of paragraph 1 of Schedule 2 as if he and that partner were a couple;

(b)an amount equal to the difference between the amounts specified in [F189sub-paragraphs (3)(c)] [F190and (1)(e)] of paragraph 1 of Schedule 2 in respect of each of his other partners;

(c)an amount determined in accordance with paragraph 2 of Schedule 2 (applicable amounts) in respect of any child or young person for whom he or a partner of his is responsible and who is a member of the same household except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F191except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000;

[F192(cc)an amount, whether in respect of the claimant or any member of his household aged 16 or over, determined in accordance with paragraph 2A of Schedule 2 (residential allowance);]

(d)if he or another partner of the polygamous marriage is responsible for a child or young person who is a member of the same household, the amount specified in Part II of Schedule 2 (family premiums);

(e)the amount of any premiums which may be applicable to him determined in accordance with Parts III and IV of Schedule 2 (premiums);

(f)any amounts determined in accordance with Schedule 3 (housing costs) which may be applicable to him in respect of mortgage interest payments or such other housing costs as are prescribed in that Schedule.

[F193(g)any amount determined in accordance with regulation 17(1)(f) (applicable amounts);]

[F194(h)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A] [F195or, as the case may be, 3B].

[F196(2) In the case of a partner who is aged less than 18, the amount which applies in respect of that partner shall be nil unless—

(a)that partner is treated as responsible for a child, or

(b)that partner is a person who—

(i)had he not been a member of a polygamous marriage would have been eligible for income support by virtue of regulation 13A (circumstances in which a person aged 16 or 17 is eligible for income support); or

(ii)is a person in respect of whom there is a direction under section 20(4A) of the Act (income support to avoid severe hardship).]

Textual Amendments

F191Words in reg. 18(1)(c) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 8

F195Words in reg. 18(1)(h) added (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 17

Modifications etc. (not altering text)

C2Reg. 18(1)(c) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up Rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

Commencement Information

I18Reg. 18 in force at 11.4.1988, see reg. 1

Applicable amounts for persons in residential care and nursing homesE+W+S

19.—[F197[F198(1)  Subject to regulation 22 (reduction of applicable amounts) where a claimant has a preserved right and either—

(a)lives in a residential care or nursing home; or

(b)is a member of a family and he and the members of his family live in such a home,]

his weekly applicable amount shall, except in a case to which regulation 21 (applicable amounts in special cases) or Part II of Schedule 4 (persons to whom regulation 19 does not apply) applies, be calculated in accordance with Part I of that Schedule.]

[F199(1ZA) A person to whom paragraph (1) applies shall be treated as not being severely disabled.]

[F200(1ZB) In this regulation a person has a preserved right, subject to paragraphs (1ZE) and (1ZF), where—

(a)on 31st March 1993, he was living in a residential care home or a nursing home, and—

(i)was entitled to income support for the benefit week in which that day fell and his applicable amount was calculated in accordance with Part I of Schedule 4; or

(ii)was not in that week entitled to income support because he was able to meet the cost of the accommodation from other sources available to him, but subsequently becomes entitled to income support; or

[F201(iii)was not in that week entitled to income support, but was residing with his partner as a member of a couple on the relevant date where the partner was a person to whom head (i) or (ii) applies; or]

(b)he would have been living in a residential care home or nursing home on 31st March 1993 but for an absence which, including that day, does not exceed—

(i)except in a case to which head (ii)

applies—

(aa)where the person was before his absence a temporary resident in the home, 4 weeks, or

(bb)where the person was before his absence a permanent resident in the home, 13 weeks; or

(ii)where throughout the period of absence the person was a patient, 52 weeks,

and the provisions of sub-paragraph (a) would have applied to him but for that absence.

(1ZC) Subject to paragraphs (1ZD), (1ZE) and (1ZF), a person also has a preserved right where—

(a)on 31st March 1993 he was living in a residential care home or nursing home within the meaning of paragraph (3) as then in force, and was entitled to income support but his applicable amount was not calculated in accordance with Part I of Schedule 4 because he was a person to whom paragraph 14 of Schedule 4 applied (accommodation provided by a close relative); and

(b)after 31st March 1993, either—

(i)he moved from the home in which he was residing on that date to another residential care home or nursing home, or

(ii)the ownership of the home changed,

and in the home to which he moved, or as the case may be, following the change of ownership, the accommodation and meals (if any) are provided for him by a person other than a close relative of his [F202or of any member] of his family, and are provided on a commercial basis.

(1ZD) Where a person has a preserved right under paragraph (1ZC), that right shall commence on the first full day of residence in the residential care home or nursing home to which he moved, or as the case may be, the day after the ownership of the [F203home] changed.

(1ZE) [F204In England and Wales,] a person does not have a preserved right by virtue of paragraph (1ZB)(a)(ii) or (1ZC) where the residential care home in which he was living provided both board and personal care for less than 4 persons.

[F205(1ZEA) Where, in Scotland, a person would have had a preserved right by virtue of paragraph (1ZB)(a)(ii) or (1ZC) but for the provisions of paragraph (1ZE) as it originally had effect, that person shall be treated from the date this regulation has effect in respect of him as though the first two paragraphs referred to continued to have effect in his case.]

(1ZF) Paragraphs (1ZB) and (1ZC) shall cease to apply to a person who has a preserved right where he is absent from a residential care home or nursing home and that absence exceeds a period of—

(a)except in a case to which sub-paragraph (b) applies—

(i)4 weeks, where the person was before his absence a temporary resident in the home, or,

(ii)13 weeks, where the person was before his absence a permanent resident in the home; or

(b)52 weeks where throughout the period of absence the person was a patient.

(1ZG) (a) A person who acquired a preserved right under paragraph (1ZB) or (1ZC) shall cease to have that right where either—

(i)he moves from the home he resided in, or would but for an absence specified in paragraph (1ZB)(b) have resided in, on 31st March 1993 to another residential care home or nursing home, or

(ii)the ownership of that home changes;

and in the home to which he moves or, as the case may be, following the change of ownership, the accommodation and meals (if any) are provided for him by a close relative of his [F206or of any member] of his family, [F206or are provided] otherwise than on a commercial basis;

(b)a preserved right acquired under paragraph (1ZB) or (1ZC) which ceased to apply to a person in accordance with sub-paragraph (a) shall, notwithstanding that paragraph, revive and again apply in his case where—

(i)he moves from the home mentioned in sub-paragraph (a)(i) to another residential care home or nursing home, or

(ii)the ownership of that home changes, or in the case of a home mentioned in sub-paragraph (a)(ii), changes again,

and in the home to which he moves or, as the case may be, following the change or further change of ownership, the accommodation and meals (if any) are provided for him otherwise than by a close relative of his [F207or of any member] of his family, and are provided on a commercial basis.

(1ZH) For the purposes of paragraphs (1ZB) and (1ZF) a person is a permanent resident in a residential care home or nursing home where the home is his principal place of abode, and a temporary resident where it is not.

(1ZJ) For the avoidance of doubt, the expression “residential care home” in paragraphs (1ZB) and (1ZE) has the meaning it bore on 31st March 1993.]

[F208(1ZK) Where a person—

(a)formerly had a preserved right by virtue of paragraph (1ZB); and

(b)on 1st April 1993 was living in a home which was exempt from registration under Part I of the Registered Homes Act 1984 pursuant to section 1(4)(a) of that Act (exemption from registration in respect of certain homes) because one or more of the residents were treated as relatives pursuant to section 19(4) of that Act; and

(c)is living in that home on 4th October 1993; and

(d)between 1st April 1993 and 4th October 1993 he has not been absent from that home, or has been absent from it for a period not exceeding 13 weeks;

then subject to paragraph (1ZL) that person shall be treated for the purposes of this regulation as though he had a preserved right on and after 4th October 1993.

(1ZL) Paragraph (1ZK) shall cease to apply to a person who is treated as though he had a preserved right where he is absent from a residential care home or nursing home and that absence exceeds a period of—

(a)except in a case to which sub-paragraph (b) applies, 13 weeks; or

(b)52 weeks where throughout the period of absence the person was a patient.]

[F209(1ZM) Where a person is treated in accordance with paragraph (1ZK) as having a preserved right, paragraph (1ZG) shall apply to that person as if he had acquired a preserved right under paragraph (1ZB).]

[F210(1ZN) Where a person—

(a)on 31st March 1993 was a member of a couple and his partner acquired a preserved right under paragraph (1ZB)(a)(i);

(b)before 3rd October 1994 ceased to be a member of a couple; and

(c)between 31st March 1993 and 3rd October 1994 has been living in a residential care home or a nursing home,

he shall be treated for the purposes of this regulation as having a preserved right from 3rd October 1994.

(1ZO) Subject to paragraph (1ZG), where a person would have been living in a residential care home or nursing home on 31st March 1993 but for an absence which, including that day, does not exceed—

(a)where the person was before his absence a temporary resident in the home, 4 weeks; or

(b)where the person was before his absence a permanent resident in the home, 13 weeks; or

(c)where throughout the period of absence the person was a patient, 52 weeks,

and the provisions of paragraph (1ZN) would have applied to him but for that absence, he shall be treated as having a preserved right from 3rd October 1994.

(1ZP) Where a person is treated as having a preserved right in accordance with paragraphs (1ZK), (1ZN) or (1ZO) above, paragraph (1ZG) shall apply to that person as if he had acquired a preserved right under paragraph (1ZB).

(1ZQ) Where a person to whom paragraph (IZO) refers is absent from a residential care home or nursing home in the period from 31st March 1993 to 3rd October 1994 for a period which exceeds a period to which paragraph (1ZO) refers and which is appropriate in his case, he shall cease to be treated as having a preserved right.]

[F211(1ZR) A person who acquired a preserved right under paragraph (1ZB) or (1ZC) shall cease to have that right if —

(a)he resides in a home which falls within sub-paragraph (c) of the definition of “residential care home" in paragraph (3) (homes run by the Abbeyfield Society) and which is not registered or deemed to be registered under any of the enactments referred to in sub-paragraph (a) or (e) of that definition;

(b)he requires personal care, including assistance with bodily functions, and that residential care home does not provide such care; and

(c)he, or a person on his behalf, contracts with another person or body to provide that care,

but that preserved right shall revive if any of the conditions specified in sub-paragraphs (a) to (c) above ceases to apply and that person would, but for this provision, have retained that right.]

[F197(1A) For the purposes of paragraph (1)(b) [F212and Schedule 4] a claimant and the members of his family are to be taken as living in a residential care home or nursing home even during periods when one or more members of the family are temporarily absent from the home but only if the claimant or his partner is living in the home during any such period.]

(2) Where—

(a)a claimant immediately before 27th July 1987 was in receipt of supplementary benefit as a boarder in a residential care home which was not required to register under Part I of the Registered Homes Act 1984 because section 1(4) of that Act (registration) applied to it; and

(b)immediately before 11th April 1988 his appropriate amount fell to be determined, by virtue of regulation 3 of the Supplementary Benefit (Requirements and Resources) Amendment Regulations 1987 F213 (transitional provisions), in accordance with paragraph 1 of Schedule 1A to the Supplementary Benefit Requirements Regulations 1983 F214 (maximum amounts for residential care homes) or would have been so determined but for his temporary absence from the home,

his weekly applicable amount shall be calculated in accordance with Part I of Schedule 4 (applicable amounts of persons in residential care homes or nursing homes) as if the home was a residential care home within the meaning of this regulation if, and for so long as, the claimant remains resident in the same home apart from any temporary absence, and the home continues to provide accommodation with board and personal care for the claimant by reason of his old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder.

(3) In this regulation and Schedule 4—

“nursing home” means—

(a)

premises which are a nursing home or mental nursing home within the meaning of the Registered Homes Act 1984 F215 and which are either registered under Part II of that Act or exempt from registration under section 37 thereof (power to exempt Christian Science Homes); or

(b)

any premises used or intended to be used for the reception of such persons or the provision of such nursing or services as is mentioned in any paragraph of subsection (1) of section 21 or section 22 (1) of the Registered Homes Act 1984 (meaning of nursing home or mental nursing home) or, in Scotland, as are mentioned in section 10 (2) of the Nursing Homes Registration (Scotland) Act 1938 F216 (interpretation) and which are maintained or controlled by a body instituted by special Act of Parliament or incorporated by Royal Charter;

(c)

in Scotland,

(i)

premises which are a nursing home within the meaning of section 10 of the Nursing Homes Registration (Scotland) Act 1938 which are either registered under that Act or exempt from registration under section 6 or 7 thereof (general power to exempt homes and power to exempt Christian Science Homes); or

(ii)

premises which are a private hospital within the meaning of section 12 of the Mental Health (Scotland) Act 1984 F217 (private hospitals), and which are registered under that Act;

“residential care home” means an establishment—

(a)

[F218which is required to be registered under Part I of the Registered Homes Act 1984 and is so registered[F219, or is deemed to be registered under section 2(3) of the Registered Homes (Amendment) Act 1991 (which refers to the registration of small homes where the application for registration has not been determined)]; or]

(b)

F220...

(c)

run by the Abbeyfield Society including all bodies corporate or incorporate which are affiliated to that Society; or

(d)

[F221which provides residential accommodation with both board and personal care and is] managed or provided by a body incorporated by Royal Charter or constituted by Act of Parliament other than a local social services authority; or

(e)

in Scotland, which is a home registered under section 61 of the Social Work (Scotland) Act 1968 F222 or is an establishment provided by [F223a housing association registered with Scottish Homes established by the Housing (Scotland) Act 1988] F224 which provides care equivalent to that given in residential accommodation provided under Part IV of the Social Work (Scotland) Act [F2251968; or]

(f)

[F226which is exempt from registration under Part I of the Registered Homes Act 1984 pursuant to section 1(4)(a) of that Act (exemption from registration in respect of certain homes) because one or more of the residents are treated as relatives pursuant to section 19(4) of that Act;]

[F227and in paragraphs (b) and (d) of this definition “personal care” means personal care for persons in need of personal care by reason of [F228old] age, disablement, past or present dependence on alcohol or drugs, or past or present mental disorder.]

“temporary absence” means—

(a)

[F229in paragraph (2) or] in the case of a person who is over pensionable age, 52 weeks;

(b)

in any other case, 13 weeks.

(4) In Schedule 4 the expressions “old age”, “mental disorder”, “mental handicap”, “drug or alcohol dependence” and “disablement” have the same meanings as those expressions have for the purposes of the Registered Homes Act 1984 and Regulations made thereunder.

[F230(5) Notwithstanding the foregoing paragraphs of this regulation, where–

(a)a person has been registered under the Registered Homes Act 1984 in respect of premises which have been carried on as a residential care home or, as the case may be, a nursing home, and that person has ceased to carry on such a home; and

(b)an application for registration under that Act has been made by another person and that application has not been determined or abandoned,

the applicable amount of a person resident in those premises shall be determined under Schedule 4 as if the most recent registration under the Registered Homes Act 1984 in respect of those premises continued until the day on which the application is determined or abandoned.]

Textual Amendments

F197Reg. 19(1)(1A) substituted for reg. 19(1) (11.4.1988) by The Income Support (General) Amendment Regulations 1988 (S.I. 1988/663), regs. 1(1), 9(a)

F201Reg. 19(1ZB)(a)(iii) added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 24(2)

F202Words in reg. 19(1ZC)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(2)

F203Word in reg. 19(1ZD) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 2(2)

F204Words in reg. 19(1ZE) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 24(3)

F205Reg. 19(1ZEA) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 24(4)

F206Words in reg. 19(1ZG)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(3)(a)(i)(ii)

F207Words in reg. 19(1ZG)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(3)(b)

F208Reg. 19(1ZK)(1ZL) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(4)

F209Reg. 19(1ZM) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 2(3)

F210Reg. 19(1ZN)-(1ZQ) added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 24(5)

F214S.I. 1983/1399; the relevant amending instruments are S.I. 1985/1835 and 1986/1292.

F2161938 c. 73, section 10 was amended by section 15 of the Mental Health (Scotland) Act 1960 (c. 61), and that amendment is preserved notwithstanding the repeal of that 1960 Act by section 126(1)(a) of the Mental Health (Scotland) Act 1984 (c. 36). Section 10 was also amended by Schedule 7 of the National Health Service (Scotland) Act 1972 (c. 58), Schedules 7 and 8 of the Nurses, Midwives and Health Visitors Act 1979 (c. 36) and by Schedule 7 of the Health Services Act 1980 (c. 53) and subsection (2) of that section 10 was added by section 26 of, and paragraph 14 of Schedule 4 to the Health Services Act 1980 (c. 53).

F225Words in reg. 19(3)(e) substituted for word (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(5)(a)

F226Reg. 19(3)(f) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 9(5)(b)

Commencement Information

I19Reg. 19 in force at 11.4.1988, see reg. 1

Applicable amounts for persons in board and lodging accommodation and hostelsE+W+S

F23120.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F231Reg. 20 omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 4

Commencement Information

I20Reg. 20 in force at 11.4.1988, see reg. 1

Special casesE+W+S

21.—(1) Subject to [F232regulations 21A and 22] (reductions in applicable amounts) in the case of a person to whom any paragraph in column (1) of Schedule 7 applies (applicable amounts in special cases), the amount included in the claimant's weekly amount in respect of him shall be the amount prescribed in the corresponding paragraph in column (2) of that Schedule; but no amount shall be included in respect of a child or young person if the capital of that child or young person calculated in accordance with Part V in like manner as for the claimant, [F233except as provided in regulation 44(1) (modifications in respect of children and young persons)], would exceed £3,000.

[F234(1A) Except where the amount prescribed in Schedule 7 in respect of a person to whom paragraph (1) applies includes an amount applicable under regulation 17(1)(d) or 18(1)(e), a person to whom paragraph (1) applies shall be treated as not being severely disabled.]

(2) In Schedule 7, for the purposes of paragraph 1, 2, 3 or 18 (patients), where a person has been a patient for two or more distinct periods separated by one or more intervals each not exceeding 28 days, he shall be treated as having been a patient continuously for a period equal in duration to the total of those distinct periods.

(3) [F235Subject to paragraph (3F),] in Schedule 7—

“person from abroad” means a person, who—

(a)

has a limited leave as defined in section 33(1) of the Immigration Act 1971 F236 (hereinafter referred to as “the 1971 Act”) to enter or remain in the United Kingdom which was given in accordance with any provision of the immigration rules (as defined in that section) which refers to there being, or to there needing to be, no recourse to public funds or to there being no charge on public funds during that limited leave; but this sub-paragraph shall not apply to a person who is a national of a Member State, a state which is a signatory to the European Convention on Social and Medical Assistance (done in Paris on 11th December 1953)F237, [F238a state which is a signatory to the Council of Europe Social Charter (signed in Turin on 18th October 1961),] the Channel Islands or the Isle of Man [F239unless, in the case of a national of a state which is a signatory of that European Convention, he has made an application for the conditions of his leave to remain in the United Kingdom to be varied, and that application has not been determined or an appeal from that application is pending under Part II of the 1971 Act (appeals);] or

(b)

having a limited leave (as defined in section 33(1) of the 1971 Act) to enter or remain in the United Kingdom, has remained without further leave under that Act beyond the time limited by the leave; or

(c)

is the subject of a deportation order being an order under section 5(1) of the 1971 Act (deportation) requiring him to leave and prohibiting him from entering the United Kingdom; or

(d)

is adjudged by the immigration authorities to be an illegal entrant (as defined in section 33(1) of the 1971 Act) who has not subsequently been given leave under that Act to enter or remain in the United Kingdom; or

(e)

has been allowed temporary admission to the United Kingdom by virtue of paragraph 21 of Schedule 2 to the 1971 Act; or

(f)

has been allowed temporary admission to the United Kingdom by the Secretary of State outside any provision of the 1971 Act; or

(g)

has not had his immigration status determined by the Secretary of State; [F240or

(h)

is a national of a member State and is required by the Secretary of State to leave the United Kingdom][F241; or

(i)

has been given leave to enter, or remain in, the United Kingdom by the Secretary of State upon an undertaking given by another person or persons in writing in pursuance of immigration rules within the meaning of the Immigration Act 1971, to be responsible for his maintenance and accommodation; and he has not been resident in the United Kingdom for a period of at least 5 years beginning from the date of entry or the date on which the undertaking was given in respect of him, whichever date is the later; or

(j)

while he is a person to whom any of the definitions in sub-paragraphs (a) to (i) applies in his case, submits a claim to the Secretary of State, which is not finally determined, for asylum under the Convention.]

[F242“person from abroad” also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is—

(a)

a worker for the purposes of Council Regulation (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No.68/360/EEC or No.73/148/EEC; or

(b)

a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or

(c)

a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State.]

“patient” means a person (other than a prisoner) who is regarded as receiving free in-patient treatment within the meaning of the Social Security (Hospital In-Patients) Regulations 1975F243.

[F244“prisoner” means a person who—

(a)

is detained in custody pending trial or sentence upon conviction or under a sentence imposed by a court; or

(b)

is on temporary release in accordance with the provisions of the Prison Act 1952 or the Prisons (Scotland) Act 1989,

other than a person whose detention is under the provisions of the Mental Health Act 1983 or the Mental Health (Scotland) Act 1984;]

[F245“residential accommodation” means, subject to the following provisions of this regulation, accommodation provided by a local authority in a home owned or managed by that or another local authority—

(a)

under sections 21 to 24 F246...of the National Assistance Act 1948 (provision of accommodation); or

(b)

in Scotland, under section 13B or 59 of the Social Work (Scotland) Act 1968 (provision of residential and other establishments)F247...; or

(c)

under section 7 of the Mental Health (Scotland) Act 1984 (functions of local authorities),

where the accommodation is provided for a person whose stay in that accommodation has become other than temporary.]

[F248(3A) Where on or after 12th August 1991 a person is in, or only temporarily absent from, residential accommodation within the meaning of paragraph (3) and that accommodation subsequently becomes a residential care home within the meaning of regulation 19 (applicable amounts for persons in residential care and nursing homes) that person shall continue to be treated as being in residential accommodation within the meaning of paragraph (3) if, and for so long as, he remains in the same accommodation and the local authority is under a duty to provide or make arrangements for providing accommodation for that person.]

[F249(3B) In a case where on 31st March 1993 a person was in or was temporarily absent from accommodation provided under section 26 of the National Assistance Act 1948, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if for the words “provided by a local authority in a home owned or managed by that or another authority” there were substituted the words “provided in accordance with arrangements made by a local authority”, and for the words in sub-paragraph (a) “under sections 21 to 24F250...” there were substituted the words “under section 26”.

(3C) In a case where on 31st March 1993 a person was in or was temporarily absent from accommodation provided by a local authority under section 21 of the National Assistance Act 1948, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if, after the words “by that or another [F251local] authority” there were inserted the words “or provided in accordance with arrangements made by a local authority”.]

[F252(3D) In Scotland, in a case where on the 31st March 1993 a person was in or was temporarily absent from accommodation provided under section 13B in a private or voluntary sector home, section 59(2)(c) of the Social Work (Scotland) Act 1968 or section 7 of the Mental Health (Scotland) Act 1984 in a voluntary or private sector home, the definition of “residential accommodation” in paragraph (3) shall have effect in that case as if—

(a)for the words “provided by a local authority in a home owned or managed by that or another local authority” there were substituted the words “provided in accordance with arrangements made by a local authority”; and

(b)for the words in sub-paragraph (b) “under section 13B or 59” there were substituted the words “under section 13B or 59(2)(c)”;

and for the purpose of this paragraph the definition of “residential accommodation” above shall continue to have effect as though the words “other than in premises registered under section 61 of that Act (registration) and which are used for the rehabilitation of alcoholics or drug addicts,” were retained at the end of sub-paragraph (b) of the definition.

(3E) In Scotland, in a case where on 31st March 1993 a person was in or was temporarily absent from accommodation the provision of which was secured by a local authority under section 13B in a home owned or managed by that or another local authority, section 59(2)(a) or (b) of the Social Work (Scotland) Act 1968, or section 7 of the Mental Health (Scotland) Act 1984 in a home owned or managed by that or another local authority, the definition of “residential accommodation” in paragraph (3) shall have effect in relation to that case as if, after the words “by that or another local authority” there were inserted the words “or provided in accordance with arrangements made by a local authority”.]

[F253(3F) In paragraph (3) “person from abroad” does not include any person in Great Britain who left the territory of Montserrat after 1st November 1995 because of the effect on that territory of a volcanic eruption.]

(4) A person who would, but for this paragraph, be in residential accommodation within the meaning of paragraph (3) shall not be treated as being in residential accommodation if he is a person—

(a)who is under the age of 18 and in the care of a local authority under Part II or III of the Social Work (Scotland) Act 1968 (promotion of social welfare of children in need of care), or

F254(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F255(c)for whom board is not provided.]

[F256(4A) [F257In paragraph (4), sub-paragraph (c)] in the definition of “residential accommodation” shall apply only to accommodation—

(a)where no cooked or prepared food is made available to the claimant in consequence solely of his paying the charge for the accommodation or any other charge which he is required to pay as a condition of occupying the accommodation, or both of those charges, or

(b)where such food is actually made available for his consumption on payment of a further charge or charges.]

[F258(4B) In the case of a person who on 31st March 1993 was either in or only temporarily absent from, residential accommodation within the meaning of regulation 21(3) as then in force, paragraph (4) shall apply as if sub-paragraph (c) was omitted.]

(5) A claimant to whom paragraph 19 of Schedule 7 (disability premium) applies shall be entitled to income support for the period in respect of which that paragraph applies to him notwithstanding that his partner was also entitled to income support for that same period.

Textual Amendments

F233Words in reg. 21(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 3

F237Cmnd 9512.

F239Words in reg. 21(3) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 8

F240Reg. 21(3)(h) and word added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 4

F243S.I. 1975/555, the relevant amending instruments are 1977/1693 and 1987/1683.

F247Words in reg. 21(3) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 25(a)

F251Word in reg. 21(3C) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 10

F252Reg. 21(3D)(3E) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 25(b)

F255Words in Reg 21(4) substituted (1.4.1993) by The Social Security Benefits (Amendments Consequential Upon the Introduction of Community Care) Regulations 1992 (S.I. 1990/3147), reg. 1(1), Sch. 1 para. 3(b)

F256Reg. 21(4A) added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 15(3)

Modifications etc. (not altering text)

C3Reg. 21(1) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

Commencement Information

I21Reg. 21 in force at 11.4.1988, see reg. 1

[F259Reductions in applicable amounts in certain cases of failure to attend coursesE+W+S

21A.—(1) The weekly applicable amount of a claimant to whom paragraph (3) applies shall be reduced in each relevant week by a sum equal to the appropriate percentage of the relevant amount which applies in his case.

(2) A reduction under paragraph (1) shall, if it is not a multiple of 5p, be rounded to the nearest such multiple or, if it is a multiple of 2.5p but not of 5p, to the next lower multiple of 5p.

(3) Except where paragraph (4) applies, this paragraph applies to a claimant where—

(a)he has been notified of a relevant course;

(b)he has during the period of [F26012 months] which ended on the day on which he was notified of that course been in receipt of benefit—

(i)without any period of interruption;

(ii)with a period of interruption which did not exceed 56 days; or

(iii)with a number of periods of interruption, none of which exceeded 56 days;

(c)his entitlement to benefit during the whole of that period of [F26112 months], or such part of it as the claimant in question was in receipt of benefit, was subject to the condition that he was available for employment;

(d)his entitlement to income support is not subject to a reduction in the relevant week under regulation 22 (reductions in applicable amounts in certain cases of actual or notional unemployment benefit disqualification); and

(e)he has failed to attend the whole or any part of that course.

(4) This paragraph shall apply where the claimant’s failure to attend a relevant course is attributable to any of the following circumstances—

(a)the claimant in question was suffering from some disease or bodily or mental disablement on account of which—

(i)he was not able to attend the relevant course in question; or

(ii)his attendance at that course would have put at risk the health of other persons;

(b)the time it took, or would normally have taken, for the claimant to travel from his home to the course and back to his home by a route and means appropriate to his circumstances and to the course exceeded, or would normally have exceeded, one hour in either direction;

(c)the claimant was caring for a member of his household where—

(i)that member was unable to care for himself;

(ii)no other member of that household was available to care for him; and

(iii)in the circumstances of the case it was not practical for the claimant to make other arrangements for the care of that member;

(d)the claimant was attending court F262... as a party to any proceedings, or as a witness or a juror;

(e)the claimant was arranging or attending the funeral of a partner or relative;

(f)the claimant was engaged in—

(i)the manning or launching of a lifeboat; or

(ii)the performance of duty as a part-time fireman in a fire brigade maintained in pursuance of the Fire Services Acts 1947 to 1959;

(g)the claimant was required to deal with some domestic emergency; or

(h)the claimant was providing assistance in response to an emergency.

(5) A claimant shall be treated as having provided assistance in response to an emergency for the purposes of paragraph (4)(h) [F263only]—

[F264(a)if he was a member of a group of persons organised wholly or partly for the purpose of providing such assistance and he was called upon to—

(i)provide assistance to any person whose life might have been endangered or who might have been exposed to the risk of serious bodily injury or whose health might have been seriously impaired;

(ii)protect property of substantial value from imminent risk of serious damage or destruction; or

(iii)assist in measures being taken to prevent a serious threat to health; and]

(b)[F265where the events which gave rise to an emergency included]—

(i)a fire, a flood or an explosion;

(ii)a natural catastrophe;

(iii)a railway or other accident;

(iv)a cave or mountain accident [F266or];

(v)a search for a person reported missing.

(6) For the purposes of this regulation—

“appropriate percentage” means 40 per cent. except that where the circumstances of a case fall within those set out in regulation 22(2) it means 20 per cent;

“benefit” means income support or unemployment benefit or, if they are received in respect of the same benefit week, both of those benefits;

“notified” means notified in writing by the Secretary of State for Employment by a notice which specifies in relation to the relevant course which the claimant may attend—

(i)

the date of the course, or if the duration of the course is to exceed one day, the date of each day of the course;

(ii)

the time when the course is to begin, or if it is to begin at different times on different days, each of those times; and

(iii)

the place at which the course is to be held, or, if it is to be held at more than one place, each of those places;

“relevant amount” has the same meaning as in regulation 22(1);

“relevant course” means a course or programme provided by [F267or on behalf of] the Secretary of State for Employment for the purpose of improving the prospects of unemployed persons entering or returning to employment other than any such course or programme which—

(a)

is provided for the purpose of training for employment or acquiring work experience; or

(b)

exceeds 5 weeks in duration;

“relevant week” means the benefit week which includes the Friday which falls more than 6 but less than 14 days after the Saturday of the week in which the claimant in question failed to attend the whole or any part of a relevant course.]

Textual Amendments

Reductions in applicable amounts in certain cases of actual or notional unemployment benefit disqualificationE+W+S

22.—(1) The weekly applicable amount of a claimant to whom paragraph (4) or (5) applies shall, subject to paragraph (2), be reduced by a sum equal to 40 per cent of the following amount (hereinafter referred to as the “relevant amount”)—

(a)in the case of a person to whom regulation 17 or 18 or paragraph 4 to 6, 9 to 12, 16, 17(c)(i) or (d)(i) of Schedule 7 applies—

(i)where he is a single claimant aged less than 18 or a member of a couple or a polygamous marriage where all the members, in either case, are less than 18, the amount specified in [F268paragraph 1(1)(a), (b) or (c), as the case may be,] of Schedule 2 (applicable amounts);

(ii)where he is a single claimant aged not less than 18 but less than 25 [F269or a member of a couple or polygamous marriage where one member is aged not less than 18 but less than 25 and the other member, or in the case of a polygamous marriage each other member, is a person under 18 who is not eligible for income support under regulation 13A (persons under 18 years), or is not the subject of a direction under section 20(4A) (severe hardship direction)], the amount specified in [F270paragraph 1(1)(d)] of that Schedule;

(iii)where he is a single claimant aged not less than 25 or a member of a couple or a polygamous marriage [F271(other than a member of a couple or polygamous marriage to whom head (ii) of this sub-paragraph applies)] at least one of whom is aged not less than 18, the amount specified in [F272paragraph 1(1)(e)] of that Schedule;

(b)in the case of a person to whom [F273regulation 19 (applicable amounts for persons in residential care and nursing homes) applies, the amount allowed for personal expenses for him specified in paragraph 13 of Schedule 4.]

[F274(1A) The weekly applicable amount of a claimant to whom paragraph (5A) applies shall be reduced in accordance with paragraph (1) but for this purpose paragraph (1) shall be modified so that for the words “40 per cent” there are substituted the words “20 per cent”..]

(2) Where—

(a)the claimant's capital calculated in accordance with Part V (including any capital treated as his) does not exceed £200; and

(b)he or any member of his family is either pregnant or seriously ill,

his weekly applicable amount shall be reduced by a sum equal to 20 per cent of the relevant amount in his case.

(3) A reduction under paragraph (1) or (2) shall, if it is not a multiple of 5p, be rounded to the nearest such multiple or, if it is a multiple of 2.5p but not of 5p, to the next lower multiple of 5p.

(4) This paragraph applies to a claimant—

(a)whose weekly applicable amount is calculated otherwise than in accordance with regulation 21 and paragraph 1 to 3, 8(b), 13, 16 and 18 of Schedule 7; and

(b)whose right to income support is, under section 20(3)(d)(i) of the Act (conditions of entitlement to income support), subject to the condition of availability for employment; and

(c)who—

(i)is disqualified for receiving unemployment benefit under section 20(1) of the Social Security Act F275 (disqualifications etc); or

(ii)has made a claim for unemployment benefit which has not been determined by an adjudication officer and in respect of which, in the opinion of an adjudication officer, a question as to disqualification under that section arises; or

(iii)has not made a claim for unemployment benefit or has had such a claim disallowed other than by reason of section 20(1) and, in either case, would be so disqualified if he were to make such a claim or it had not been so disallowed.

(5) This paragraph applies to a claimant who is not required to be available for employment by virtue of regulation F276... [F2778(3)] (persons not required to be available for employment) [F278or a claimant who is not required to be actively seeking employment by virtue of regulation 10A(2) (actively seeking employment)] F276....

[F279(5A) This paragraph applies to a claimant who is not required to be available for employment by virtue of regulation 8(2A) (persons not required to be available for employment) or who is not required to register for employment by virtue of regulation 11(2A) (registration for employment)..]

(6) This regulation shall apply—

(a)in a case to which head (i) of paragraph (4)(c) applies, for the period of the disqualification;

(b)in a case to which head (ii) of paragraph (4)(c) applies, for a period of [F28013] [F28026] weeks except that where, on subsequent determination of the claim for unemployment benefit—

(i)disqualification is not imposed, any reduction imposed under paragraph (1) or (2), as the case may be, shall be withdrawn,

(ii)disqualification is imposed but for a period of less than [F28013 ] [F28026] weeks, the period of such reduction shall be adjusted to correspond with the period of disqualification;

(c)in a case to which head (iii) of paragraph (4)(c) applies, for the period for which the claimant would be disqualified if he were to make a claim for unemployment benefit or if such a claim had not been disallowed for other reasons.

(d)in a case to which [F281paragraph (5) or (5A)] applies, for so long as that paragraph continues so to apply.

Textual Amendments

F269Words in reg. 22(1)(a)(ii) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 9(a)

F271Words in reg. 22(1)(a)(iii) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 9(b)

F273Words in reg. 22(1)(b) substituted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 6

F2751975 c. 14; subsection (1) was amended and subsection (1A) was added by the Social Security Act 1986 (c. 5),section 43.

Modifications etc. (not altering text)

C4Reg. 22(1) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C5Reg. 22(2) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C6Reg. 22(2)(a) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

Commencement Information

I22Reg. 22 in force at 11.4.1988, see reg. 1

PART VE+W+SINCOME AND CAPITAL

CHAPTER IE+W+Sgeneral

Calculation of income and capital of members of claimant's family and of a polygamous marriageE+W+S

23.—(1) [F282Subject to paragraphs (2) and (4) and to regulation 44 (modifications in respect of children and young persons), the income and capital of a claimant’s partner and] the income of a child or young person which by virtue of section 22(5) of the Act is to be treated as income and capital of the claimant, shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant; and any reference to the “claimant” shall, except where the context otherwise requires, be construed, for the purposes of this Part, as if it were a reference to his partner or that child or young person.

(2) Regulations 36(2) and 38(2), so far as they relate to paragraphs 1 to 10 of Schedule 8 (earnings to be disregarded) and regulation 41(1) (capital treated as income) shall not apply to a child or young person.

(3) [F283Subject to paragraph (5)] where a claimant or the partner of a claimant is married polygamously to two or more members of his household—

(a)the claimant shall be treated as possessing capital and income belonging to each such member and the income of any child or young person who is one of that member's family; and

(b)the income and capital of that member or, as the case may be, the income of that child or young person shall be calculated in accordance with the following provisions of this Part in like manner as for the claimant or, as the case may be, as for any child or young person who is a member of his family.

[F284(4) Where at least one member of a couple is aged less than 18 and the applicable amount of the couple falls to be determined under paragraph 1(3)(b), (e) or (f) of Schedule 2 (applicable amounts), the income of the claimant’s partner shall not be treated as the income of the claimant to the extent that–

(a)in the case of a couple where both members are aged less than 18, the amount specified in paragraph 1(3)(a) of that Schedule exceeds the amount specified in paragraph 1(3)(b) of that Schedule; and

(b)in the case of a couple where only one member is aged less than 18, the amount specified in paragraph 1(3)(d) of that Schedule exceeds the amount which applies in that case which is specified in paragraph 1(3)(e) or (f) of that Schedule.]

[F284(5) Where a member of a polygamous marriage is a partner aged less than 18 and the amount which applies in respect of him under regulation 18(2) (polygamous marriages) is nil, the claimant shall not be treated as possessing the income of that partner to the extent that an amount in respect of him would have been included in the applicable amount if he had fallen within the circumstances set out in regulation 18(2)(a) or (b).]

Textual Amendments

Commencement Information

I23Reg. 23 in force at 11.4.1988, see reg. 1

Treatment of charitable or voluntary paymentsE+W+S

F28524.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I24Reg. 24 in force at 11.4.1988, see reg. 1

Liable relative paymentsE+W+S

25.  Regulations 29 to 44, 46 to 52 and Chapter VIII of this Part shall not apply to any payment which is to be calculated in accordance with Chapter VII thereof (liable relatives).

Commencement Information

I25Reg. 25 in force at 11.4.1988, see reg. 1

[F286Child supportE+W+S

25A.  Regulations 29, 31, 32, 40 and 42 and Chapter VII of this Part shall not apply to any payment which is to be calculated in accordance with Chapter VIIA of this Part (child support).]

Textual Amendments

Calculation of income and capital of studentsE+W+S

26.  The provisions of Chapters II to VI of this Part (income and capital) shall have effect in relation to students and their partners subject to the modifications set out in Chapter VIII thereof (students).

Commencement Information

I26Reg. 26 in force at 11.4.1988, see reg. 1

[F287Rounding of fractionsE+W+S

27.  Where any calculation under this Part results in a fraction of a penny that fraction shall, if it would be to the claimant’s advantage, be treated as a penny, otherwise it shall be disregarded.]

Textual Amendments

Commencement Information

I27Reg. 27 in force at 11.4.1988, see reg. 1

CHAPTER IIE+W+Sincome

Calculation of incomeE+W+S

28.—(1) For the purposes of section 20(3) of the Act (conditions of entitlement to income support) the income of a claimant shall be calculated on a weekly basis—

(a)by determining in accordance with this Part, other than Chapter VI, the weekly amount of his income; and

(b)by adding to that amount the weekly income calculated under regulation 53 (calculation of tariff income from capital).

[F288(2) For the purposes of paragraph (1) “income” includes capital treated as income under regulation 41 (capital treated as income) and income which a claimant is treated as possessing under regulation 42 (notional income).]

Textual Amendments

Commencement Information

I28Reg. 28 in force at 11.4.1988, see reg. 1

Calculation of earnings derived from employed earner's employment and income other than earningsE+W+S

29.—(1) F289... Earnings derived from employment as an employed earner and income which does not consist of earnings shall be taken into account over a period determined in accordance with the following paragraphs and at a weekly amount determined in accordance with regulation 32 (calculation of weekly amount of income).

(2) Subject to [F290paragraphs (3) [F291and (4A) to (4D)]], the period over which a payment is to be taken into account shall be—

(a)in a case where it is payable in respect of a period, a period equal to the length of that period;

(b)in any other case, a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the net earnings, or in the case of income which does not consist of earnings, the amount of that income [F292less any amount paid by way of tax on that income which is disregarded under paragraph 1 of Schedule 9 (income other than earnings to be disregarded)] by the amount of income support which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from that payment under Schedule 8 [F293(earnings to be disregarded) or, as the case maybe, any paragraph of Schedule 9 other than paragraph 1 of that Schedule,] as is appropriate in the claimant's case,

and that period shall begin on the date on which the payment is treated as paid under regulation 31 (date on which income is treated as paid).

(3) Where earnings not of the same kind are derived from the same source and the periods in respect of which those earnings would, but for this paragraph, fall to be taken into account—

(a)overlap, wholly or partly, those earnings shall be taken into account over a period equal to the aggregate length of those periods;

(b)and that period shall begin with the earliest date on which any part of those earnings would otherwise be treated as paid under regulation 31 (date on which income is treated as paid).

[F294(4) In a case to which paragraph (3) applies, earnings under regulation 35 (earnings of employed earners) shall be taken into account in the following order of priority—

(a)earnings normally derived from the employment;

(b)any payment to which paragraph (1)(b) or (c) of that regulation applies;

(c)any payment to which paragraph (1)(i) of that regulation applies;

(d)any payment to which paragraph (1)(d) of that regulation applies.]

[F295(4A) Where earnings to which regulation 35(1)(b) to (d) (earnings of employed earners) applies are paid in respect of part of a day, those earnings shall be taken into account over a period equal to a day.]

[F296(4B) Where earnings to which regulation 35(1)(i)(i) applies (earnings of employed earners) are paid in respect of or on the termination of any employment which is not part-time employment, the period over which they are to be taken into account shall be—

(a)a period equal to such number of weeks as is equal to the number (less any fraction of a whole number) obtained by dividing the net earnings by the maximum weekly amount which, on the date on which the payment of earnings is made, is specified in paragraph 8(1)(c) of Schedule 14 to the Employment Protection (Consolidation) Act 1978; or

(b)a period equal to the length of the specified period, whichever is the shorter, and that period shall begin on the date on which the payment is treated as paid under regulation 31 (date on which income is treated as paid).]

[F296(4C) Any earnings to which regulation 35(1)(i)(ii) applies which are paid in respect of or on the termination of part-time employment, shall be taken into account over a period equal to one week.]

[F296(4D) In this regulation—

(a)“part-time employment” means employment in which a person is not to be treated as engaged in remunerative work under regulation 5 or 6 (persons treated, or not treated, as engaged in remunerative work);

(b)“specified period” means a period equal to—

(i)the period of notice which is applicable to a person, or would have been applicable if it had not been waived; less

(ii)any part of that period during which the person has continued to work in the employment in question or in respect of which he has received a payment to which regulation 35(1)(c) applies, and for the purposes of this definition “period of notice” means the periodof notice of termination of employment to which a person is entitled by statute or by contract, whichever is the longer, or, if he is not entitled to such notice, the period of notice which is customary in the employment in question.]

(5) For the purposes of this regulation the claimant's earnings and income which does not consist of earnings shall be calculated in accordance with Chapters III and V respectively of this Part.

Textual Amendments

F292Words in reg. 29(2)(b) inserted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 10(a)

F293Words in reg. 29(2)(b) substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 10(b)

Commencement Information

I29Reg. 29 in force at 11.4.1988, see reg. 1

Calculation of earnings of self-employed earnersE+W+S

30.—(1) Except where paragraph (2) applies, where a claimant's income consists of earnings from employment as a self-employed earner the weekly amount of his earnings shall be determined by reference to his average weekly earnings from that employment—

(a)over a period of [F297one year]; or

(b)where the claimant has recently become engaged in that employment or there has been a change which is likely to affect the normal pattern of business, over such other period F298... as may, in any particular case, enable the weekly amount of his earnings to be determined more accurately.

(2) Where the claimant's earnings consist of royalties or sums paid periodically for or in respect of any copyright those earnings shall be taken into account over a period equal to such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing the earnings by the amount of income support which would be payable had the payment not been made plus an amount equal to the total of the sums which would fall to be disregarded from the payment under Schedule 8 (earnings to be disregarded) as is appropriate in the claimant's case.

(3) For the purposes of this regulation the claimant's earnings shall be calculated in accordance with Chapter IV of this Part.

Textual Amendments

F297Words in reg. 30(1)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 11(a)

F298Words in reg. 30(1)(b) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 11(b)

Commencement Information

I30Reg. 30 in force at 11.4.1988, see reg. 1

Date on which income is treated as paidE+W+S

31.—(1) Except where paragraph (2) applies, a payment of income to which regulation 29 (calculation of earnings derived from employed earner's employment and income other than earnings) applies shall be treated as paid—

(a)in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the date on which it is due to be paid;

(b)in any other case, on the first day of the benefit week in which it is due to be paid or the first succeeding benefit week in which it is practicable to take it into account.

(2) Income support, unemployment benefit, [F299maternity allowance,] [F300short-term or long-term incapacity benefit], or severe disablement allowance F301... shall be treated as paid on the day of the benefit week in respect of which [F302it is payable].

Textual Amendments

Commencement Information

I31Reg. 31 in force at 11.4.1988, see reg. 1

Calculation of weekly amount of incomeE+W+S

32.—(1) For the purposes of regulation 29 (calculation of earnings derived from employed earner's employment and income other than earnings), subject to [F303paragraphs (2) to (7)] F304..., where the period in respect of which a payment is made—

(a)does not exceed a week, the weekly amount shall be the amount of that payment;

(b)exceeds a week, the weekly amount shall be determined—

(i)in a case where that period is a month, by multiplying the amount of the payment by 12 and dividing the product by 52;

(ii)in a case where that period is three months, by multiplying the amount of the payment by 4 and dividing the product by 52;

(iii)in a case where that period is a year by dividing the amount of the payment by 52;

(iv)in any other case by multiplying the amount of the payment by 7 and dividing the product by the number equal to the number of days in the period in respect of which it is made.

(2) Where a payment for a period not exceeding a week is treated under regulation 31(1)(a) (date on which income is treated as paid) as paid before the first benefit week and a part is to be taken into account for some days only in that week (the relevant days), the amount to be taken into account for the relevant days shall be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(3) Where a payment is in respect of a period equal to or in excess of a week and a part thereof is to be taken into account for some days only in a benefit week (the relevant days), the amount to be taken into account for the relevant days shall, except where paragraph (4) applies, be calculated by multiplying the amount of the payment by the number equal to the number of relevant days and dividing the product by the number of days in the period in respect of which it is made.

(4) In the case of a payment of—

(a)unemployment benefit, [F305maternity allowance,] [F306short-term or long-term incapacity benefit], or severe disablement allowanceF306..., the amount to be taken into account for the relevant days shall be the amount of benefit [F307payable] in respect of those days;

(b)income support, the amount to be taken into account for the relevant days shall be calculated by multiplying the weekly amount of the benefit by the number of relevant days and dividing the product by seven.

(5) Except in the case of a payment which it has not been practicable to treat under regulation 31(1)(b) as paid on the first day of the benefit week in which it is due to be paid, where a payment of income from a particular source is or has been paid regularly and that payment falls to be taken into account in the same benefit week as a payment of the same kind and from the same source, the amount of that income to be taken into account in any one benefit week shall not exceed the weekly amount determined under paragraph (1)(a) or (b), as the case may be, of the payment which under regulation 31(1)(b) (date on which income is treated as paid) is treated as paid first.

(6) Where the amount of the claimant's income fluctuates and has changed more than once, or a claimant's regular pattern of work is such that he does not work every week, the foregoing paragraphs may be modified so that the weekly amount of his income is determined by reference to his average weekly income—

(a)if there is a recognisable cycle of work, over 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);

(b)in any other case, over a period of five weeks or such other period as may, in the particular case, enable the claimant's average weekly income to be determined more accurately.

[F308(7) Where any payment of earnings is taken into account under paragraph (4C) of regulation 29 (calculation of earnings derived from employed earner’s employment and income other than earnings), over the period specified in that paragraph, the amount to be taken into account shall be equal to the amount of the payment.]

Textual Amendments

Commencement Information

I32Reg. 32 in force at 11.4.1988, see reg. 1

Weekly amount of charitable or voluntary paymentE+W+S

F30933.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I33Reg. 33 in force at 11.4.1988, see reg. 1

Incomplete weeks of benefitE+W+S

F31034.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I34Reg. 34 in force at 11.4.1988, see reg. 1

CHAPTER IIIE+W+Semployed earners

Earnings of employed earnersE+W+S

35.—(1) [F311Subject to paragraphs (2) and (3),] “earnings” means in the case of employment as an employed earner, any remuneration or profit derived from that employment and includes—

(a)any bonus or commission;

(b)any payment in lieu of remuneration except any periodic sum paid to a claimant on account of the termination of his employment by reason of redundancy;

(c)any payment in lieu of notice F312...;

(d)any holiday pay except any payable more than four weeks after the termination or interruption of employment but this exception shall not apply to a claimant to whom [F313section 23 of the Act (trade disputes) applies or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of the Act (effect of return to work).]

(e)any payment by way of a retainer;

(f)any payment made by the claimant's employer in respect of expenses not wholly, exclusively and necessarily incurred in the performance of the duties of the employment, including any payment made by the claimant's employer in respect of—

(i)travelling expenses incurred by the claimant between his home and place of employment;

(ii)expenses incurred by the claimant under arrangements made for the care of a member of his family owing to the claimant's absence from home;

(g)any award of compensation made under section 68(2) or 71(2)(a) of the Employment Protection (Consolidation) Act 1978 F314 (remedies for unfair dismissal and compensation);

(h)any such sum as is referred to in section 18(2) of the Social Security (Miscellaneous Provisions) Act 1977 F315 (certain sums to be earnings for social security purposes).

[F316(i)where—

(i)a payment of compensation is made in respect of employment which is not part-time employment and that payment is not less than the maximum weekly amount, the amount of the compensation less the deductible remainder, where that is applicable;

(ii)a payment of compensation is made in respect of employment which is part-time employment, the amount of the compensation.]

[F317(1A) For the purposes of paragraph (1)(i)(i) the “deductible remainder”—

(a)applies in cases where dividing the amount of the compensation by the maximum weekly amount produces a whole number plus a fraction; and

(b)is equal to the difference between—

(i)the amount of the compensation; and

(ii)the product of the maximum weekly amount multiplied by the whole number.]

(2) “Earnings” shall not include—

(a)any payment in kind;

(b)any remuneration paid by or on behalf of an employer to the claimant [F318in respect of a period throughout which the claimant is on maternity leave or is absent from work because he is ill];

(c)any payment in respect of expenses wholly, exclusively and necessarily incurred in the performance of the duties of the employment;

(d)any occupational pension.

[F319(3) In this regulation—

(a)“compensation” means any payment made in respect of or on the termination of employment in a case where a person has not received or received only part of a payment in lieu of notice due or which would have been due to him had he not waived his right to receive it, other than—

(i)any payment specified in paragraph (1)(a) to (h);

(ii)any payment specified in paragraph (2)(a) to (d);

(iii)any redundancy payment within the meaning of section 81(1) of the Employment Protection (Consolidation) Act 1978, and

(iv)any refund of contributions to which that person was entitled under an occupational pension scheme within the meaning of section 66(1) of the Social Security Pensions Act 1975;

[F320(v) any compensation payable by virtue of section 173 or section 178(3) or (4) of the Education Reform Act 1988 ]

(b)“maximum weekly amount” means the maximum weekly amount which, on the date on which the payment of compensation is made, is specified in paragraph 8(1)(c) of Schedule 14 to the Employment Protection (Consolidation) Act 1978;

(c)“part-time employment” means employment in which a person is not to be treated as engaged in remunerative work under regulation 5 or 6 (persons treated, or not treated, as engaged in remunerative work).]

Textual Amendments

F3141978 c. 44; section 68(2) was amended by the Employment Act 1982 (c. 46) section 21 Schedule 3 paragraph 21;section 71(2) was amended by the Employment Act 1982 (c. 46) sections 5 and 21 Schedule 3 paragraph 22 and Schedule 4.

F3151977 c. 5; section 18(2) was amended by section 159 Schedule 16 paragraph 29 of the Employment Protection (Consolidation) Act 1978 (c. 44) and by section 86(2) of, and Schedule 10 Part IV paragraph 75 and Schedule 11 to, the Social Security Act 1986 (c. 50).

F318Words in reg. 35(2)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 12

Commencement Information

I35Reg. 35 in force at 11.4.1988, see reg. 1

Calculation of net earnings of employed earnersE+W+S

36.—(1) For the purposes of regulation 29 (calculation of earnings of employed earners) the earnings of a claimant derived from employment as an employed earner to be taken into account shall, subject to paragraph (2), be his net earnings.

(2) There shall be disregarded from a claimant's net earnings, any sum, where applicable, specified in paragraphs 1 to 13 of Schedule 8.

(3) For the purposes of paragraph (1) net earnings shall be calculated by taking into account the gross earnings of the claimant from that employment less—

(a)any amount deducted from those earnings by way of—

(i)income tax;

(ii)primary Class 1 contributions under the Social Security ActF321; and

(b)one-half of any sum paid by the claimant [F322in respect of a pay period] by way of a contribution towards an occupational or personal pension scheme.

Textual Amendments

F322Words in reg. 36(3)(b) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 26

Commencement Information

I36Reg. 36 in force at 11.4.1988, see reg. 1

CHAPTER IVE+W+Sself-employed earners

Earnings of self-employed earnersE+W+S

37.—(1) Subject to paragraph (2), “earnings”, in the case of employment as a self-employed earner, means the gross receipts of the employment and shall include any allowance paid under section 2 of the Employment and Training Act 1973 F323[F324or section 2 of the Enterprise and New Towns (Scotland) Act 1990] to the claimant for the purpose of assisting him in carrying on his business.

[F325(2) “Earnings” shall not include—

(a)where a claimant is involved in providing board and lodging accommodation for which a charge is payable, any payment by way of such a charge;]

[F326(b)any payment to which paragraph 26 or 27 of Schedule 9 refers (payments in respect of a person accommodated with the claimant under an arrangement made by a local authority or voluntary organisation and payments made to the claimant by a health authority, local authority or voluntary organisation in respect of persons temporarily in the claimant’s care).]

Textual Amendments

F3231973 c. 50; section 2 was amended by sections 9 and 11 and Schedule 2 Part II paragraph 9 and Schedule 3 of the Employment and Training Act 1981 (c. 57).

F325Reg. 37(2) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 16

F326Reg. 37(2)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 27

Commencement Information

I37Reg. 37 in force at 11.4.1988, see reg. 1

Calculation of net profit of self-employed earnersE+W+S

38.—(1) For the purposes of regulation 30 (calculation of earnings of self-employed earners), the earnings of a claimant to be taken into account shall be—

(a)in the case of a self-employed earner who is engaged in employment on his own account, the net profit derived from that employment;

(b)in the case of a self-employed earner whose employment is carried on in partnership or is that of a share fisherman within the meaning of the Social Security (Mariners' Benefits) Regulations 1975F327, his share of the net profit derived from that employment less—

(i)an amount in respect of income tax and of social security contributions payable under the Social Security Act calculated in accordance with regulation 39 (deduction of tax and contributions for self-employed earners); and

(ii)[F328one half of any premium paid [F329in the period that is relevant under regulation 30] in respect of a retirement annuity contract or a personal pension scheme].

(2) There shall be disregarded from a claimant's net profit any sum, where applicable, specified in paragraphs 1 to 13 of Schedule 8.

(3) For the purposes of paragraph (1) (a) the net profit of the employment shall, except where paragraph (9) applies, be calculated by taking into account the earnings of the employment over the period determined under regulation 30 (calculation of earnings of self-employed earners) less—

(a)subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed in that period for the purposes of that employment;

(b)an amount in respect of—

(i)income tax; and

(ii)social security contributions payable under the Social Security Act, calculated in accordance with regulation 39 (deduction of tax and contributions for self-employed earners); and

(c)[F328one half of any premium paid [F330in the period that is relevant under regulation 30] in respect of a retirement annuity contract or a personal pension scheme].

(4) For the purposes of paragraph (1) (b), the net profit of the employment shall be calculated by taking into account the earnings of the employment over the period determined under regulation 30 less, subject to paragraphs (5) to (7), any expenses wholly and exclusively defrayed in that period for the purposes of that employment.

(5) Subject to paragraph (6), no deduction shall be made under paragraph (3) (a) or (4) in respect of—

(a)any capital expenditure;

(b)the depreciation of any capital asset;

(c)any sum employed or intended to be employed in the setting up or expansion of the employment;

(d)any loss incurred before the beginning of the period determined under regulation 30 (calculation of earnings of self-employed earners);

(e)the repayment of capital on any loan taken out for the purposes of the employment;

(f)any expenses incurred in providing business entertainment.

(6) A deduction shall be made under paragraph (3) (a) or (4) in respect of the repayment of capital on any loan used for—

(a)the replacement in the course of business of equipment or machinery; and

(b)the repair of an existing business asset except to the extent that any sum is payable under an insurance policy for its repair.

(7) An adjudication officer shall refuse to make a deduction in respect of any expenses under paragraph (3) (a) or (4) where he is not satisfied that the expense has been defrayed or, having regard to the nature of the expense and its amount, that it has been reasonably incurred.

(8) For the avoidance of doubt—

(a)a deduction shall not be made under paragraph (3) (a) or (4) in respect of any sum unless it has been expended for the purposes of the business;

(b)a deduction shall be made thereunder in respect of—

(i)the excess of any VAT paid over VAT received in the period determined under regulation 30 (calculation of earnings of self-employed earners);

(ii)any income expended in the repair of an existing asset except to the extent that any sum is payable under an insurance policy for its repair;

(iii)any payment of interest on a loan taken out for the purposes of the employment.

(9) Where a claimant is engaged in employment as a child minder the net profit of the employment shall be one-third of the earnings of that employment, less—

(a)an amount in respect of—

(i)income tax; and

(ii)social security contributions payable under the Social Security Act, calculated in accordance with regulation 39 (deduction of tax and contributions for self-employed earners); and

(b)[F328one half of any premium paid in respect of a retirement annuity contract or a personal pension scheme].

(10) Notwithstanding regulation 30 (calculation of earnings of self-employed earners) and the foregoing paragraphs, an adjudication officer may assess any item of a claimant's income or expenditure over a period other than that determined under regulation 30 as may, in the particular case, enable the weekly amount of that item of income or expenditure to be determined more accurately.

(11) For the avoidance of doubt where a claimant is engaged in employment as a self-employed earner and he is also engaged in one or more other employments as a self-employed or employed earner any loss incurred in any one of his employments shall not be offset against his earnings in any other of his employments.

F331(12) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F328Words in reg. 38 substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 13(2)

F329Words in reg. 38(1)(b)(ii) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 28

F330Words in reg. 38(3)(c) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 28

Commencement Information

I38Reg. 38 in force at 11.4.1988, see reg. 1

Deduction of tax and contributions for self-employed earnersE+W+S

39.—(1) The amount to be deducted in respect of income tax under regulation 38 (1) (b) (i), (3) (b) (i) or (9) (a) (i) (calculation of net profit of self-employed earners) shall be calculated on the basis of the amount of chargeable income and as if that income were assessable to income tax at [F332the lower rate or, as the case may be, the lower rate and the basic rate of tax] less only the personal relief to which the claimant is entitled under sections 8 (1) and (2) and 14 (1) (a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief) F333 as is appropriate to his circumstances; but, if the period determined under regulation 30 (calculation of earnings of self-employed earners) is less than a year, [F334the earnings to which the lower rate F335... of tax is to be applied and] the amount of the personal relief deductible under this paragraph shall be calculated on a pro rata basis.

(2) The amount to be deducted in respect of social security contributions under regulation 38(1)(b)(i), (3)(b)(ii) or (9)(a)(ii) shall be the total of—

[F336(a)the amount of Class 2 contributions payable under section 11(1) or, as the case may be, 11(3) of the Contributions and Benefits Act at the rate applicable at the date of claim except where the claimant’s chargeable income is less than the amount specified in section 11(4) of that Act (small earnings exception) for the tax year in which the date of claim falls; but if the assessment period is less than a year, the amount specified for that tax year shall be reduced pro rata; and]

[F336(b)the amount of Class 4 contributions (if any) which would be payable under section 15 of that Act (Class 4 contributions recoverable under the Income Tax Acts) at the percentage rate applicable at the date of claim on so much of the chargeable income as exceeds the lower limit but does not exceed the upper limit of profits and gains applicable for the tax year in which the date of claim falls; but if the assessment period is less than a year, those limits shall be reduced pro rata.]

(3) In this regulation “chargeable income” means—

(a)except where sub-paragraph (b) applies, the earnings derived from the employment less any expenses deducted under paragraph (3) (a) or, as the case may be, (4) of regulation 38;

(b)in the case of employment as a child minder, one-third of the earnings of that employment.

Textual Amendments

F332Words in reg. 39(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 17(a)

F3331970 c. 10; section 8 (1) was amended by the Finance Act 1971 (c. 68) section 37 Schedule 6 paragraphs 1 and 5, and the Finance Act 1985 (c. 54) section 36, subsection (1A) was added by the Finance (No.2) Act 1975 (c. 45) section 31 and amended by the Finance Act 1977 (c. 36) section 22. Subsection (1B) was added by the Finance (No.2) Act 1975 section 31. Section 8 (2) was amended by the Finance Act 1971 section 37 Schedule 6 paragraphs 1 and 5 and article 2 of S.I. 1985/430; sub-paragraph (b) was substituted by the Finance (No.2) Act 1979 (c. 47) section 12 Schedule 2 paragraph 1; sub-paragraph (b) (i) and (ii) were amended by the Finance Act 1981 (c. 35) section 139 Schedule 19 Part VI and the Finance Act 1982 (c. 39) section 157 Schedule 22 Part IV; sub-paragraph (b) (iii) was added by the Finance Act 1981 (c. 35) section 27 and sub-paragraph (b) (iv) by the Finance Act 1987 (c. 16) section 27. Section 14 (1) was amended by the Finance Act 1970 (c. 24) section 14 Schedule 8 Part VI; section 14 (2) was amended by the Finance Act 1976 (c. 40) section 36, the Finance (No.2) Act 1979 (c. 47) section 11 Schedule 1 paragraph 2 and the Finance Act 1980 (c. 48) section 24.

F334Words in reg. 39(1) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 17(b)

F335Words in reg. 39(1) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 29

F336Reg. 39(2)(a)(b) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 14

Commencement Information

I39Reg. 39 in force at 11.4.1988, see reg. 1

CHAPTER VE+W+Sother income

Calculation of income other than earningsE+W+S

40.—(1) For the purposes of regulation 29 (calculation of income other than earnings) the income of a claimant which does not consist of earnings to be taken into account shall, subject to paragraphs [F337(2) to (3A)], be his gross income and any capital treated as income under regulations F338... 41 and 44 (F338... capital treated as income and modifications in respect of children and young persons).

(2) There shall be disregarded from the calculation of a claimant's gross income under paragraph (1), any sum, where applicable, specified in Schedule 9.

(3) Where the payment of any benefit under the benefit Acts F339 is subject to any deduction by way of recovery the amount to be taken into account under paragraph (1) shall be the gross amount payable.

[F340(3A) Where a loan is made to a person pursuant to arrangements made under section 1 of the Education (Student Loans) Act 1990 [F341or article 3 of the Education (Student Loans) (Northern Ireland) Order 1990] and that person ceases to be a student before the end of the academic year in respect of which the loan is payable or, as the case may be, before the end of his course, a sum equal to the weekly amount apportionable under paragraph (2) of regulation 66A shall be taken into account under paragraph (1) for each week, in the period over which the loan fell to be apportioned, following the date on which that person ceases to be a student; but in determining the weekly amount apportionable under paragraph (2) of regulation 66A so much of that paragraph as provides for a disregard shall not have effect.]

(4) For the avoidance of doubt there shall be included as income to be taken into account under paragraph (1) any payment to which regulation 35(2) or 37(2) (payments not earnings) applies.

Textual Amendments

F339The benefit Acts are specified in section 84(1) of the Social Security Act 1986 (c. 50).

Commencement Information

I40Reg. 40 in force at 11.4.1988, see reg. 1

Capital treated as incomeE+W+S

41.—(1) Any capital payable by instalments which are outstanding on the first day in respect of which income support is payable or the date of the determination of the claim, whichever is earlier, or, in the case of a review, the date of any subsequent review shall, if the aggregate of the instalments outstanding and the amount of the claimant's capital otherwise calculated in accordance with Chapter VI of this Part exceeds [F342£8,000], be treated as income.

(2) Any payment received under an annuity shall be treated as income.

(3) In the case of a person to whom section 23 of the Act (trade disputes) applies [F343or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of the Act (effect of return to work)], any payment under [F344[F345section 17 or 24 of the Children Act 1989] or, as the case may be, section 12, 24 or 26 of the Social Work (Scotland) Act 1968 (local authorities' duty to promote welfare of children and powers to grant financial assistance to persons in, or formerly in, their care) shall be treated as income].

[F346(4) In the case of a person to whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of that Act (effect of return to work), any amount by way of repayment of income tax deducted from his emoluments in pursuance of section 203 of the Income and Corporation Taxes Act 1988, shall be treated as income.]

[F347(5) Any earnings to the extent that they are not a payment of income shall be treated as income.]

Textual Amendments

F345Words in reg. 41(3) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 4

Commencement Information

I41Reg. 41 in force at 11.4.1988, see reg. 1

Notional incomeE+W+S

42.—(1) A claimant shall be treated as possessing income of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit.

(2) Except in the case of—

(a)a discretionary trust;

(b)a trust derived from a payment made in consequence of a personal injury;

(c)unemployment benefit under the Social Security Act which may be payable to a claimant who is not required to be available for employment; or

(d)an increase of child benefit payable to a claimant under regulation 2(2) of the Child Benefit and Social Security (Fixing and Adjustment of Rates) Regulations 1976 F348 (rates of child benefit),

[F349(e)family credit;]

[F349(f)disability working allowance,]

[F350(g)a personal pension scheme or retirement annuity contract where the claimant is aged under 60,]

income which would become available to the claimant upon application being made but which has not been acquired by him shall be treated as possessed by him but only from the date on which [F351it could be expected to be acquired were an application made].

[F352(2A) Where a person, aged not less than 60, is a member of, or a person deriving entitlement to a pension under, a personal pension scheme, or is a party to, or a person deriving entitlement to a pension under, a retirement annuity contract, and—

(a)in the case of a personal pension scheme, he fails to purchase an annuity with the funds available in that scheme where—

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

(ii)he 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; or

(b)in the case of a retirement annuity contract, he fails to purchase an annuity with the funds available under that contract,

the amount of any income foregone shall be treated as possessed by him, but only from the date on which it could be expected to be acquired were an application for it to be made.

(2B) The amount of any income foregone in a case to which either head (2A)(a)(i) or (ii) applies shall be the maximum amount of income which may be withdrawn from the fund and shall be determined by the adjudication officer who shall take account of information provided by the pension fund holder in accordance with regulation 7(5) of the Social Security (Claims and Payments) Regulations 1987.

(2C) The amount of any income foregone in a case to which either head (2A)(a)(iii) or sub-paragraph (2A)(b) applies shall be the income that the claimant could have received without purchasing an annuity had the funds held under the relevant personal pension scheme or retirement annuity contract been held under a personal pension scheme where income withdrawal was available and shall be determined in the manner specified in paragraph (2B).]

(3) Except in the case of a discretionary trust, or a trust derived from a payment made in consequence of a personal injury, any income which is due to be paid to the claimant but—

(a)has not been paid to him;

(b)is not a payment prescribed in regulation 9 or 10 of the Social Security (Payments on Account, Overpayment and Recovery) Regulations 1987 F353 (duplication and prescribed payments or maintenance payments) and not made on or before the date prescribed in relation to it,

shall [F354except for any amount to which paragraph (3A) or (B) applies] be treated as possessed by the claimant.

[F355(3A) This paragraph applies to an amount which is due to be paid to the claimant under an occupational pension scheme but which is not paid because the trustees or managers of the scheme have suspended or ceased payments F356... due to an insufficiency of resources.]

[F355(3B) This paragraph applies to any amount by which a payment made to the claimant from an occupational pension scheme falls short of the payment to which he was due under the scheme where the shortfall arises because the trustees or managers of the scheme have insufficient resources available to them to meet in full the scheme’s liabilitiesF357....]

[F358(4) Any payment of income, other than a payment of income made under the Macfarlane Trust[F359, the Macfarlane (Special Payments) Trust][F360, the Macfarlane (Special Payments) (No. 2) Trust][F361, the Fund[F362, the Eileen Trust]] or [F363the Independent Living Funds], made—

(a)to a third party in respect of a single claimant or in respect of a member of the family (but not a member of the third party’s family) shall be treated—

(i)in a case where that payment is derived from a payment of any benefit under the benefit Acts, a war disablement pension[F364, war widow’s pension or a pension payable to a person as a widow under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 insofar as that Order is made under the Naval and Marine Pay and Pensions Act 1865 [F365or the Pensions and Yeomanry Pay Act 1884], or is made only under section 12(1) of the Social Security (Miscellaneous Provisions) Act 1977 and any power of Her Majesty otherwise than under an enactment to make provision about pensions for or in respect of persons who have been disabled or have died in consequence of service as members of the armed forces of the Crown,] as possessed by that single claimant, if it is paid to him, or by that member, if it is paid to any member of that family;

(ii)in any other case, as possessed by that single claimant or by that member to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable, [F366or]F367... any housing costs to the extent that they are met under regulations 17(1)(e) or 18(1)(f) (housing costs) F368... F369... F370...), of that single claimant or, as the case may be, of any member of that family[F371, or is used for any [F372council tax] or water charges for which that claimant or member is liable;]

(b)to a single claimant or a member of the family in respect of a third party (but not in respect of another member of that family) shall be treated as possessed by that single claimant or, as the case may be, that member of the family to the extent that it is kept or used by him or used by or on behalf of any member of the family;

but, except where sub-paragraph (a)(i) applies and in the case of a person to whom section 23 of the Act (trade disputes) applies, this paragraph shall not apply to any payment in kind.]

[F373(4A) Where the claimant lives in a residential care home or a nursing home, or is temporarily absent from such a home, any payment made by a person other than the claimant or a member of his family in respect of some or all of the cost of maintaining the claimant or a member of his family in that home shall be treated as possessed by the claimant or by that member of his family.]

(5) Where a claimant's earnings are not ascertainable at the time of the determination of the claim or of any subsequent review the adjudication officer shall treat the claimant as possessing such earnings as is reasonable in the circumstances of the case having regard to the number of hours worked and the earnings paid for comparable employment in the area.

(6) Where—

(a)a claimant performs a service for another person; and

(b)that person makes no payment of earnings or pays less than that paid for a comparable employment in the area,

the adjudication officer shall treat the claimant as possessing such earnings (if any) as is reasonable for that employment unless the claimant satisfies him that the means of that person are insufficient for him to pay or to pay more for the service; but this paragraph shall not apply to a claimant who is engaged by a charitable or [F374voluntary organisation] or is a volunteer if the adjudication officer is satisfied [F375in any of those cases] that it is reasonable for him to provide his services free of charge.

(7) Where a claimant is treated as possessing any income under any of paragraphs (1) to (4) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of that income as if a payment had actually been made and as if it were actual income which he does possess.

(8) Where a claimant is treated as possessing any earnings under paragraph (5) or (6) the foregoing provisions of this Part shall apply for the purposes of calculating the amount of those earnings as if a payment had actually been made and as if they were actual earnings which he does possess except that paragraph (3) of regulation 36 (calculation of net earnings of employed earners) shall not apply and his net earnings shall be calculated by taking into account the earnings which he is treated as possessing, less—

(a)an amount in respect of income tax equivalent to an amount calculated by applying to those earnings [F376the lower rate or, as the case may be, the lower rate and the basic rate of tax] in the year of assessment less only the personal relief to which the claimant is entitled under sections 8(1) and (2) and 14(1)(a) and (2) of the Income and Corporation Taxes Act 1970 (personal relief) as is appropriate to his circumstances; but, if the period over which those earnings are to be taken into account is less than a year, [F377the earnings to which the lower rate F378... of tax is to be applied and] the amount of the personal relief deductible under this paragraph shall be calculated on a pro rata basis;

[F379(b)where the weekly amount of those earnings equals or exceeds the lower earnings limit, an amount representing primary Class 1 contributions under the Contributions and Benefits Act, calculated by applying to those earnings the initial and main primary percentages in accordance with section 8(1) (a) and (b) of that Act; and]

(c)one-half of any sum payable by the claimant [F380in respect of a pay period] by way of a contribution towards an occupational or personal pension scheme.

[F381(8A) In paragraphs (3A) and (3B) the expression “resources” has the same meaning as in the Social Security Pensions Act 1975 by virtue of section 66(1) of that Act.]

[F382(9) In paragraph (4) the expression “ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities.]

Textual Amendments

F348S.I. 1976/1267; relevant amending instruments are S.I. 1980/110, 1986/1172 and 1987/45.

F356Words in reg. 42(3A) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 6(a)

F357Words in reg. 42(3B) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1993 (S.I. 1993/315), regs. 1(1)(c), 6(b)

F366Word in reg. 42(4)(a)(ii) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 4(2)(a)

F367Words in reg. 42(4)(a)(ii) omitted (7.10.1991) by virtue of The Income Support (General) Amendment No. 4 Regulations 1991 (S.I. 1991/1559), regs. 1(1)(c), 8(a) (with reg. 1(2))

F368Words in reg. 42(4)(a)(ii) omitted (with effect in accordance with reg. 1(3) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 4(2)(b)

F370Words in reg. 42(4)(a)(ii) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 7

F373Reg. 42(4A) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 4(3)

F376Words in reg. 42(8)(a) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 18(a)

F377Words in reg. 42(8)(a) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 18(b)

F378Words in reg. 42(8)(a) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 29

F379Reg. 42(8)(b) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 4(4)

F380Words in reg. 42(8)(c) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No.5) Regulations 1994 (S.I. 1994/2139), regs. 1(1)(a), 26

Modifications etc. (not altering text)

Commencement Information

I42Reg. 42 in force at 11.4.1988, see reg. 1

Notional earnings of seasonal workersE+W+S

F38343.  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Commencement Information

I43Reg. 43 in force at 11.4.1988, see reg. 1

Modifications in respect of children and young personsE+W+S

44.—(1) Any capital of a child or young person payable by instalments which are outstanding on the first day in respect of which income support is payable or at the date of the determination of the claim, whichever is earlier, or, in the case of a review, the date of any subsequent review shall, if the aggregate of the instalments outstanding and the amount of that child's or young person's other capital calculated in accordance with Chapter VI of this Part in like manner as for the claimantF384... would exceed £3,000, be treated as income.

(2) In the case of a child or young person who is residing at an educational establishment at which he is receiving relevant education—

(a)any payment made to the educational establishment, in respect of that child's or young person's maintenance, by or on behalf of a person who is not a member of the family or by a member of the family out of funds contributed for that purpose by a person who is not a member of the family, shall be treated as income of that child or young person but it shall only be taken into account over periods during which that child or young person is present at that educational establishment; and

(b)if a payment has been so made, for any period in a benefit week in term-time during which that child or young person returns home, he shall be treated as possessing an amount of income in that week calculated by multiplying the amount of personal allowance and disabled child premium, if any, applicable in respect of that child or young person by the number equal to the number of days in that week in which he was present at his educational establishment and dividing the product by seven; but this sub-paragraph shall not apply where the educational establishment is provided under section 8 of the Education Act 1944 F385 (duty of local authority to secure primary and secondary schools) by a local education authority or where the payment is made under section 49 or 50 of the Education (Scotland) Act 1980 F386 (power of education authority to assist persons).

(3) Where a child or young person—

(a)is resident at an educational establishment and he is wholly or partly maintained at that establishment by a local education authority under section 8 of the Education Act 1944; or

(b)is maintained at an educational establishment under section 49 or 50 of the Education (Scotland) Act 1980,

he shall for each day he is present at that establishment be treated as possessing an amount of income equal to the sum obtained by dividing the amount of personal allowance and disabled child premium, if any, applicable in respect of him by seven.

(4) Where the income of a child or young person who is a member of the claimant's family calculated in accordance with [F387Chapters I to V] of this Part exceeds the amount of the personal allowance and disabled child premium, if any, applicable in respect of that child or young person, the excess shall not be treated as income of the claimant.

(5) Where the capital of a child or young person if calculated in accordance with Chapter VI of this Part in like manner as for the claimant, [F388except as provided in paragraph (1)], would exceed £3,000, any income of that child or young person shall not be treated as income of the claimant.

(6) In calculating the net earnings or net profit of a child or young person there shall be disregarded, (in addition to any sum which falls to be disregarded under paragraphs 11 to 13), any sum specified in paragraphs 14 and 15 of Schedule 8 (earnings to be disregarded).

(7) Any income of a child or young person which is to be disregarded under Schedule 9 (income other than earnings to be disregarded) shall be disregarded in such manner as to produce the result most favourable to the claimant.

(8) Where a child or young person is treated as possessing any income under paragraphs (2) and (3) the foregoing provisions of this Part shall apply for the purposes of calculating that income as if a payment had actually been made and as if it were actual income which he does possess.

[F389(9) For the purposes of this regulation, a child or young person shall not be treated as present at his educational establishment on any day if on that day he spends the night with the claimant or a member of his household.]

Textual Amendments

F384Words in reg. 44(1) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 15(2)

F3851944 c. 31 section 8 was amended by the Education (Miscellaneous Provisions) Act 1948 (c. 40) section 3, the Education Act 1980 (c. 20) section 38 and Schedule 7 and by the Education Act 1981 (c. 60) section 2.

F3861980 c. 44 section 50 was amended by the Education (Scotland) Act 1981 (c. 58) section 2.

F387Words in reg. 44(4) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 15(3)

F388Words in reg. 44(5) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 15(4)

Commencement Information

I44Reg. 44 in force at 11.4.1988, see reg. 1

CHAPTER VIE+W+Scapital

Capital limitE+W+S

[F39045.  For the purposes of section 134(1) of the Contributions and Benefits Act as it applies to income support (no entitlement to benefit if capital exceeds prescribed amount)—

(a)except where paragraph (b) applies, the prescribed amount is £8,000;

(b)where the circumstances prescribed in regulation 53(1B) apply in the claimant’s case, the prescribed amount is £16,000.]

Textual Amendments

Commencement Information

I45Reg. 45 in force at 11.4.1988, see reg. 1

Calculation of capitalE+W+S

46.—(1) For the purposes of Part II of the Act as it applies to income support, the capital of a claimant to be taken into account shall, subject to paragraph (2), be the whole of his capital calculated in accordance with this Part and any income treated as capital under [F391regulation 48 (income treated as capital).]

(2) There shall be disregarded from the calculation of a claimant's capital under paragraph (1) any capital, where applicable, specified in Schedule 10.

Textual Amendments

Commencement Information

I46Reg. 46 in force at 11.4.1988, see reg. 1

Disregard of capital of child or young personE+W+S

47.  The capital of a child or young person who is a member of the claimant's family shall not be treated as capital of the claimant.

Commencement Information

I47Reg. 47 in force at 11.4.1988, see reg. 1

Income treated as capitalE+W+S

48.—(1) Any F392... bounty derived from employment to which paragraph 7 of Schedule 8 applies [F393and paid at intervals of at least one year] shall be treated as capital.

(2) Except in the case of an amount to which section 23(5) (a) (ii) of the Act (refund of tax in trade disputes cases) [F394or regulation 41(4) (capital treated as income)] applies, any amount by way of a refund of income tax deducted from profits or emoluments chargeable to income tax under Schedule D or E shall be treated as capital.

(3) Any holiday pay which is not earnings under regulation 35(1) (d) (earnings of employed earners) shall be treated as capital.

(4) Except any income derived from capital disregarded under paragraph 1, 2, 4, 6, [F39512 or 25 to 28] of Schedule 10, any income derived from capital shall be treated as capital but only from the date it is normally due to be credited to the claimant's account.

(5) Subject to paragraph (6), in the case of employment as an employed earner, any advance of earnings or any loan made by the claimant's employer shall be treated as capital.

[F396(6) Paragraph (5) shall not apply to a person to whom section 23 of the Act (trade disputes) applies or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) (effect of return to work).]

(7) Any payment under section 30 of the Prison Act 1952 F397 (payments for discharged prisoners) or allowance under section 17 of the Prisons (Scotland) Act 1952 F398 (allowances to prisoners on discharge) shall be treated as capital.

[F399(8) Any payment made by a local authority which represents arrears of payments under paragraph 15 of Schedule 1 to the Children Act 1989 (power of a local authority to make contributions to a person with whom a child lives as a result of a residence order) shall be treated as capital.]

[F400(9) Any charitable or voluntary payment which is not made or not due to be made at regular intervals, other than one to which paragraph (10) applies, shall be treated as capital.]

[F400(10) This paragraph applies to a payment—

(a)which is made to a person to whom section 23 of the Act (trade disputes) applies or in respect of whom section 20(3) of the Act (conditions of entitlement to income support) has effect as modified by section 23A(b) of the Act (effect of return to work) or to a member of the family of such a person;

(b)to which regulation 44(2) (modification in respect of children and young persons) applies; or

(c)which is made under the Macfarlane Trust[F401, the Macfarlane (Special Payments) Trust][F402, the Macfarlane (Special Payments) (No. 2) Trust][F403, the Fund][F404, the Eileen Trust] or [F405the Independent Living Funds].]

[F406(11) Any compensation within the meaning of regulation 35(3) (earnings of employed earners) which is made in respect of employment which is not part-time employment within the meaning of that regulation, to the extent that it is not earnings by virtue of regulation 35(1)(i)(i) shall be treated as capital.]

Textual Amendments

F3971952 c. 52; section 30 was substituted by section 66 (3) of the Criminal Justice Act 1967 (c. 80).

F399Reg. 48(8) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Support (General) Amendment Regulations 1992 (S.I. 1992/468), reg. 1(1), Sch. para. 5 (with Sch. para. 11)

Commencement Information

I48Reg. 48 in force at 11.4.1988, see reg. 1

Calculation of capital in the United KingdomE+W+S

49.  Capital which a claimant possesses in the United Kingdom shall be calculated—

(a)except in a case to which sub-paragraph (b) applies, at its current market or surrender value, less—

(i)where there would be expenses attributable to sale, 10 per cent; and

(ii)the amount of any incumbrance secured on it;

(b)in the case of a National Savings Certificate—

(i)if purchased from an issue the sale of which ceased before 1st July last preceding the first day on which income support is payable or the date of the determination of the claim, whichever is the earlier, or in the case of a review, the date of any subsequent review, at the price which it would have realised on that 1st July had it been purchased on the last day of that issue;

(ii)in any other case, at its purchase price.

Commencement Information

I49Reg. 49 in force at 11.4.1988, see reg. 1

Calculation of capital outside the United KingdomE+W+S

50.  Capital which a claimant possesses in a country outside the United Kingdom shall be calculated—

(a)in a case in which there is no prohibition in that country against the transfer to the United Kingdom of an amount equal to its current market or surrender value in that country, at that value;

(b)in a case where there is such a prohibition, at the price which it would realise if sold in the United Kingdom to a willing buyer,

less, where there would be expenses attributable to sale, 10 per cent and the amount of any incumbrance secured on it.

Commencement Information

I50Reg. 50 in force at 11.4.1988, see reg. 1

Notional capitalE+W+S

51.—(1) A claimant shall be treated as possessing capital of which he has deprived himself for the purpose of securing entitlement to income support or increasing the amount of that benefit [F407except–

(a)where that capital is derived from a payment made in consequence of any personal injury and is placed on trust for the benefit of the claimant; or

(b)to the extent that the capital which he is treated as possessing is reduced in accordance with regulation 51A (diminishing notional capital rule).]

(2) Except in the case of—

(a)a discretionary trust;

(b)a trust derived from a payment made in consequence of a personal injury; or

(c)any loan which would be obtainable only if secured against capital disregarded under Schedule 10, [F408or

(d)a personal pension scheme or retirement annuity contract,]

any capital which would become available to the claimant upon application being made but which has not been acquired by him shall be treated as possessed by him but only from the date on which [F409it could be expected to be acquired were an application made]

[F410(3) Any payment of capital, other than a payment of capital made under the Macfarlane Trust[F411, the Macfarlane (Special Payments) Trust][F412, the Macfarlane (Special Payments) (No. 2) Trust][F413, the Fund[F414, the Eileen Trust ]] or [F415the Independent Living Funds], made—

(a)to a third party in respect of a single claimant or in respect of a member of the family (but not a member of the third party’s family) shall be treated—

(i)in a case where that payment is derived from a payment of any benefit under the benefit Acts, a war disablement pension or a war widow’s pension as possessed by that single claimant, if it is paid to him, or by that member if it is paid to any member of the family;

(ii)in any other case, as possessed by that single claimant or by that member to the extent that it is used for the food, ordinary clothing or footwear, household fuel, rent or rates for which housing benefit is payable, F416... any housing costs to the extent that they are met under regulation 17(1)(e) and 18(1)(f) (housing costs) or accommodation charge to the extent that it is met under regulation 19 F417... (persons in residential care or nursing homes F418... F417...), of that single claimant or, as the case may be, of any member of that family[F419, or is used for any [F420council tax] or water charges for which that claimant or member is liable];

(b)to a single claimant or a member of the family in respect of a third party (but not in respect of another member of the family) shall be treated as possessed by that single claimant or, as the case may be, that member of the family to the extent that it is kept or used by him or used by or on behalf of any member of the family.]

(4) Where a claimant stands in relation to a company in a position analogous to that of a sole owner or partner in the business of that company, he shall be treated as if he were such sole owner or partner and in such a case—

(a)the value of his holding in that company shall, notwithstanding regulation 46 (calculation of capital), be disregarded; and

(b)he shall, subject to paragraph (5), be treated as possessing an amount of capital equal to the value or, as the case may be, his share of the value of the capital of that company and the foregoing provisions of this Chapter shall apply for the purposes of calculating that amount as if it were actual capital which he does possess.

(5) For so long as the claimant undertakes activities in the course of the business of the company, the amount which he is treated as possessing under paragraph (4) shall be disregarded.

(6) Where a claimant is treated as possessing capital under any of paragraphs (1) to (4), the foregoing provisions of this Chapter shall apply for the purposes of calculating its amount as if it were actual capital which he does possess.

[F421(7) For the avoidance of doubt a claimant is to be treated as possessing capital under paragraph (1) only if the capital of which he has deprived himself is actual capital.]

[F422(8) In paragraph (3) the expression “ordinary clothing or footwear” means clothing or footwear for normal daily use, but does not include school uniforms, or clothing or footwear used solely for sporting activities.]

Textual Amendments

F416Words in reg. 51(3)(a)(ii) omitted (7.10.1991) by virtue of The Income Support (General) Amendment No. 4 Regulations 1991 (S.I. 1991/1559), regs. 1(1)(c), 9(a) (with reg. 1(2))

F417Words in reg. 51(3)(a)(ii) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 7

Modifications etc. (not altering text)

Commencement Information

I51Reg. 51 in force at 11.4.1988, see reg. 1

[F423Diminishing notional capital ruleE+W+S

51A.—(1) Where a claimant is treated as possessing capital under regulation 51(1) (notional capital), the amount which he is treated as possessing–

(a)in the case of a week that is subsequent to–

(i)the relevant week in respect of which the conditions set out in paragraph (2) are satisfied, or

(ii)a week which follows that relevant week and which satisfies those conditions,

shall be reduced by an amount determined under paragraph (2);

(b)in the case of a week in respect of which paragraph (1)(a) does not apply but where–

(i)that week is a week subsequent to the relevant week, and

(ii)that relevant week is a week in which the condition in paragraph (3) is satisfied,

shall be reduced by the amount determined under paragraph (3).

(2) This paragraph applies to a benefit week or part week where the claimant satisfies the conditions that–

(a)he is in receipt of income support; and

(b)but for regulation 51(1), he would have received an additional amount of income support in that benefit week or, as the case may be, that part week;

and in such a case, the amount of the reduction for the purposes of paragraph (1)(a) shall be equal to that additional amount.

(3) Subject to paragraph (4), for the purposes of paragraph (1)(b) the condition is that the claimant would have been entitled to income support in the relevant week, but for regulation 51(1), and in such a case the amount of the reduction shall be equal to the aggregate of–

(a)the amount of income support to which the claimant would have been entitled in the relevant week but for regulation 51(1); and for the purposes of this sub-paragraph if the relevant week is a part-week that amount shall be determined by dividing the amount of income support to which he would have been so entitled by the number equal to the number of days in the part-week and multiplying the quotient by 7;

(b)the amount of housing benefit (if any) equal to the difference between his maximum housing benefit and the amount (if any) of housing benefit which he is awarded in respect of the benefit week, within the meaning of regulation 2(1) of the Housing Benefit (General) Regulations 1987 (interpretation), which includes the last day of the relevant week;

(c)the amount of community charge benefit (if any) equal to the difference between his maximum community charge benefit and the amount (if any) of community charge benefit which he is awarded in respect of the benefit week, within the meaning of regulation 2(1) of the Community Charge Benefits (General) Regulations 1989 (interpretation) which includes the last day of the relevant week.

[F424(d)the amount of council tax benefit (if any) equal to the difference between his maximum council tax benefit and the amount (if any) of council tax benefit which he is awarded in respect of the benefit week which includes the last day of the relevant week, and for this purpose “benefit week” has the same meaning as in regulation 2(1) of the Council Tax Benefit (General) Regulations 1992 (interpretation).]

(4) The amount determined under paragraph (3) shall be re-determined under that paragraph if the claimant makes a further claim for income support and the conditions in paragraph (5) are satisfied, and in such a case–

(a)sub-paragraphs (a), (b) and (c) of paragraph (3) shall apply as if for the words “relevant week” there were substituted the words “relevant subsequent week”; and

(b)subject to paragraph (6), the amount as re-determined shall have effect from the first week following the relevant subsequent week in question.

(5) The conditions are that–

(a)a further claim is made 26 or more weeks after–

(i)the date on which the claimant made a claim for income support in respect of which he was first treated as possessing the capital in question under regulation 51(1); or

(ii)in a case where there has been at least one re-determination in accordance with paragraph (4), the date on which he last made a claim for income support which resulted in the weekly amount being re-determined; or

(iii)the date on which he last ceased to be in receipt of income support; whichever last occurred; and

(b)the claimant would have been entitled to income support but for regulation 51(1).

(6) The amount as re-determined pursuant to paragraph (4) shall not have effect if it is less than the amount which applied in that case immediately before the re-determination and in such a case the higher amount shall continue to have effect.

(7) For the purpose of this regulation–

(a)“part-week” means a period to which sub-section (1A) of section 21 of the Act (amount etc. of income support) applies;

(b)“relevant week” means the benefit week or part-week in which the capital in question of which the claimant has deprived himself within the meaning of regulation 51(1)–

(i)was first taken into account for the purpose of determining his entitlement to income support; or

(ii)was taken into account on a subsequent occasion for the purpose of determining or re-determining his entitlement to income support on that subsequent occasion and that determination or re-determination resulted in his beginning to receive, or ceasing to receive, income support;

and where more than one benefit week or part-week is identified by reference to heads (i) and (ii) of this sub-paragraph the later or latest such benefit week or, as the case may be, the later or latest such part-week;

(c)“relevant subsequent week” means the benefit week or part-week which includes the day on which the further claim or, if more than one further claim has been made, the last such claim was made.]

Textual Amendments

Capital jointly heldE+W+S

52.  Except where a claimant possesses capital which is disregarded under regulation 51 (4) (notional capital), where a claimant and one or more persons are beneficially entitled in possession to any capital asset they shall be treated as if each of them were entitled in possession [F425to an equal share of the whole beneficial interest therein; and the value of that equal share shall be calculated by taking the value of the whole beneficial interest calculated in accordance with the foregoing provisions of this Chapter, as though—

(a)that interest is solely owned by the claimant; and

(b)in the case of a dwelling, none of the other joint owners occupies the dwelling concerned,

and dividing the same by the number of persons who have a beneficial interest in the capital in question.]

Textual Amendments

Commencement Information

I52Reg. 52 in force at 11.4.1988, see reg. 1

Calculation of tariff income from capitalE+W+S

53.—(1) [F426Except where the circumstances prescribed in paragraph (1B) apply to the claimant,] where the claimant's capital calculated in accordance with this Part exceeds £3,000 it shall be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £3,000 but not exceeding [F427£8,000].

[F428(1A) Where the circumstances prescribed in paragraph (1B) apply to the claimant and that claimant’s capital calculated in accordance with this Part exceeds £10,000, it shall be treated as equivalent to a weekly income of £1 for each complete £250 in excess of £10,000 but not exceeding £16,000.

(1B) For the purposes of paragraph (1A) and regulation 45, the prescribed circumstances are that the claimant lives permanently in—

(a)a residential care or nursing home, or residential accommodation and that home or accommodation provides board and personal care for the claimant by reason of his old age, disablement, past or present dependence on alcohol or drugs or past or present mental disorder; or

(b)an establishment run by the Abbeyfield Society including all bodies corporate or incorporate which are affiliated to that Society; or

(b)accommodation provided under section 3 of, and Part II of the Schedule to, the Polish Resettlement Act 1947 (provision of accommodation in camps) where the claimant requires personal care and is provided with it in the accommodation; and in this sub-paragraph, “personal care" means care which includes assistance with bodily functions where such assistance is required.

(1C) For the purposes of paragraph (1B), a claimant shall be treated as living permanently in such home or accommodation where he is absent—

(a)from a home or accommodation referred to in sub-paragraph (a) or (b) of paragraph (1B)—

(i)in the case of a claimant referred to in regulation 19(2) or in the case of a person over pensionable age, for a period not exceeding 52 weeks, and

(ii)in any other case, for a period not exceeding 13 weeks;

(b)from accommodation referred to in sub-paragraph (c) of paragraph (1B), where the claimant, with the agreement of the manager of the accommodation, intends to return to the accommodation in due course.]

(2) Notwithstanding [F429paragraphs (1) and (lA)], where any part of the excess is not a complete £250 that part shall be treated as equivalent to a weekly income of £1.

(3) For the purposes of [F429paragraphs (1) and (lA)], capital includes any income treated as capital under regulations F430... 48 and 60 (F430...income treated as capital and liable relative payments treated as capital).

[F431(4) For the purposes of this regulation, the definition of “residential accommodation" in regulation 21(3) (applicable amounts of income support in special cases) shall have effect as if, after the words “subject to the following provisions of this regulation", there were inserted “(except paragraphs (4) and (4A))".]

Textual Amendments

F429Words in reg. 53(2)(3) substituted (8.4.1996) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/462), regs. 1(2), 12(1)(b)(iii)

Modifications etc. (not altering text)

Commencement Information

I53Reg. 53 in force at 11.4.1988, see reg. 1

CHAPTER VIIE+W+Sliable relatives

InterpretationE+W+S

54.  In this Chapter, unless the context otherwise requires—

“claimant” includes a young claimant;

“liable relative” means—

(a)

a spouse or former spouse of a claimant or of a member of the claimant's family;

(b)

a parent of a child or young person who is a member of the claimant's family or of a young claimant;

(c)

a person who has not been adjudged to be the father of a child or young person who is a member of the claimant's family or of a young claimant where that person is contributing towards the maintenance of that child, young person or young claimant and by reason of that contribution he may reasonably be treated as the father of that child, young person or young claimant;

(d)

a person liable to maintain another person by virtue of section 26(3)(c) of the Act (liability to maintain) where the latter is the claimant or a member of the claimant's family,

and, in this definition, a reference to a child's, young person's or young claimant's parent includes any person in relation to whom the child, young person or young claimant was treated as a child or a member of the family;

“payment” means a periodical payment or any other payment made by or derived from a liable relative including, except in the case of a discretionary trust, any payment which would be so made or derived upon application being made by the claimant but which has not been acquired by him but only from the date on which [F432it could be expected to be acquired were an application made]; but it does not include any payment—

(a)

arising from a disposition of property made in contemplation of, or as a consequence of—

(i)

an agreement to separate; or

(ii)

any proceedings for judicial separation, divorce or nullity of marriage;

(b)

made after the death of the liable relative;

(c)

made by way of a gift but not in aggregate or otherwise exceeding £250 in the period of 52 weeks beginning with the date on which the payment, or if there is more than one such payment the first payment, is made; and, in the case of a claimant who continues to be in receipt of income support at the end of the period of 52 weeks, this provision shall continue to apply thereafter with the modification that any subsequent period of 52 weeks shall begin with the first day of the benefit week in which the first payment is made after the end of the previous period of 52 weeks;

(d)

to which regulation 44(2) applies (modifications in respect of children and young persons);

(e)

made—

(i)

to a third party in respect of the claimant or a member of the claimant's family; or

(ii)

to the claimant or to a member of the claimant's family in respect of a third party,

where having regard to the purpose of the payment, the terms under which it is made and its amount it is unreasonable to take it into account;

(f)

in kind;

(g)

to, or in respect of, a child or young person who is to be treated as not being a member of the claimant's household under regulation 16 (circumstances in which a person is to be treated as being or not being a member of the same household);

(h)

which is not a periodical payment, to the extent that any amount of that payment—

(i)

has already been taken into account under this Part by virtue of a previous claim or determination; or

(ii)

has been recovered under section 27(1) of the Act (prevention of duplication of payments) or is currently being recovered; or

(iii)

at the time the determination is made, has been used by the claimant except where he has deprived himself of that amount for the purpose of securing entitlement to income support or increasing the amount of that benefit;

“periodical payment” means—

(a)

a payment which is made or is due to be made at regular intervals in pursuance of a court order or agreement for maintenance;

(b)

in a case where the liable relative has established a pattern of making payments at regular intervals, any such payment;

(c)

any payment not exceeding the amount of income support payable had that payment not been made;

(d)

any payment representing a commutation of payments to which sub-paragraphs (a) or (b) of this definition applies whether made in arrears or in advance,

but does not include a payment due to be made before the first benefit week pursuant to the claim which is not so made;

“young claimant ” means a person aged 16 or over but under 19 who makes a claim for income support.

Textual Amendments

Commencement Information

I54Reg. 54 in force at 11.4.1988, see reg. 1

Treatment of liable relative paymentsE+W+S

55.  [F433Subject to regulation 55A and] except where regulation 60(1) (liable relative payments to be treated as capital) applies a payment shall—

(a)to the extent that it is not a payment of income, be treated as income;

(b)be taken into account in accordance with the following provisions of this Chapter.

Textual Amendments

Commencement Information

I55Reg. 55 in force at 11.4.1988, see reg. 1

[F434Disregard of payments treated as not relevant incomeE+W+S

55A.  Where the Secretary of State treats any payment as not being relevant income for the purposes of section 74A of the Social Security Administration Act 1992 (payment of benefit where maintenance payments collected by Secretary of State), that payment shall be disregarded in calculating a claimant’s income.]

Textual Amendments

Period over which periodical payments are to be taken into accountE+W+S

56.—(1) The period over which a periodical payment is to be taken into account shall be—

(a)in a case where the payment is made at regular intervals, a period equal to the length of that interval;

(b)in a case where the payment is due to be made at regular intervals but is not so made, such number of weeks as is equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing the amount of that payment by the weekly amount of that periodical payment as calculated in accordance with regulation 58(4) (calculation of the weekly amount of a liable relative payment);

(c)in any other case, a period equal to a week.

(2) The period under paragraph (1) shall begin on the date on which the payment is treated as paid under regulation 59 (date on which a liable relative payment is to be treated as paid).

Commencement Information

I56Reg. 56 in force at 11.4.1988, see reg. 1

Period over which payments other than periodical payments are to be taken into accountE+W+S

57.—(1) Subject to paragraph (2), the number of weeks over which a payment other than a periodical payment is to be taken into account shall be equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing that payment by—

(a)where the payment is in respect of the claimant or the claimant and any child or young person who is a member of the family, the aggregate of £2 and the amount of income support which would be payable had the payment not been made;

[F435(b)where the payment is in respect of one, or more than one, child or young person who is a member of the family, the lesser of the amount (or the aggregate of the amounts) prescribed under Schedule 2, in respect of–

(i)the personal allowance of the claimant and each such child or young person;

(ii)any family and lone parent premium;

(iii)any disabled child premium in respect of such a child; and

(iv)any carer premium if, but only if, that premium is payable because the claimant is in receipt, or is treated as being in receipt, of invalid care allowance by reason of the fact that he is caring for such a child or young person who is severely disabled;

and the aggregate of £2 and the amount of income support which would be payable had the payment not been made.]

(2) Where a liable relative makes a periodical payment and any other payment concurrently and the weekly amount of that periodical payment, as calculated in accordance with regulation 58 (calculation of the weekly amount of a liable relative payment), is less than—

(a)in a case where the periodical payment is in respect of the claimant or the claimant and any child or young person who is a member of the family, the aggregate of £2 and the amount of income support which would be payable had the payments not been made; or

(b)in a case where the periodical payment is in respect of one or more than one child or young person who is a member of the family, the aggregate of the amount prescribed in Schedule 2 in respect of each such child or young person and any family and lone parent premium,

that other payment shall, subject to paragraph (3), be taken into account over a period of such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing that payment by an amount equal to the extent of the difference between the amount referred to in sub-paragraph (a) or (b), as the case may be, and the weekly amount of the periodical payment.

(3) If—

(a)the liable relative ceases to make periodical payments, the balance (if any) of the other payment shall be taken into account over the number of weeks equal to the number (and any fraction shall be treated as a corresponding fraction of a week) obtained by dividing that balance by the amount referred to in sub-paragraph (a) or (b) of paragraph (1), as the case may be;

(b)the amount of any subsequent periodical payment varies, the balance (if any) of the other payment shall be taken into account over a period of such number of weeks as is equal to the number obtained (and any fraction shall be treated as a corresponding fraction of a week) by dividing that balance by an amount equal to the extent of the difference between the amount referred to in sub-paragraph (a) or (b) of paragraph (2) and the weekly amount of the subsequent periodical payment.

(4) The period under paragraph (1) or (2) shall begin on the date on which the payment is treated as paid under regulation 59 (date on which a liable relative payment is treated as paid) and under paragraph (3) shall begin on the first day of the benefit week in which the cessation or variation of the periodical payment occurred.

Textual Amendments

Commencement Information

I57Reg. 57 in force at 11.4.1988, see reg. 1

Calculation of the weekly amount of a liable relative paymentE+W+S

58.—(1) Where a periodical payment is made or is due to be made at intervals of one week, the weekly amount shall be the amount of that payment.

(2) Where a periodical payment is made or is due to be made at intervals greater than one week and those intervals are monthly, the weekly amount shall be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(3) Where a periodical payment is made or is due to be made at intervals and those intervals are neither weekly nor monthly, the weekly amount shall be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(4) Where a payment is made and that payment represents a commutation of periodical payments whether in arrears or in advance, the weekly amount shall be the weekly amount of the individual periodical payments so commutated as calculated under paragraphs (1) to (3) as is appropriate.

(5) The weekly amount of a payment to which regulation 57 applies (period over which payments other than periodical payments are to be taken into account) shall be equal to the amount of the divisor used in calculating the period over which the payment or, as the case may be, the balance is to be taken into account.

Modifications etc. (not altering text)

Commencement Information

I58Reg. 58 in force at 11.4.1988, see reg. 1

Date on which a liable relative payment is to be treated as paidE+W+S

59.—(1) A periodical payment is to be treated as paid—

(a)in the case of a payment which is due to be made before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b)in any other case, on the first day of the benefit week in which it is due to be paid unless, having regard to the manner in which income support is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(2) Subject to paragraph (3), any other payment shall be treated as paid—

(a)in the case of a payment which is made before the first benefit week pursuant to the claim, on the day in the week in which it is paid which corresponds to the first day of the benefit week;

(b)in any other case, on the first day of the benefit week in which it is paid unless, having regard to the manner in which income support is due to be paid in the particular case, it would be more practicable to treat it as paid on the first day of a subsequent benefit week.

(3) Any other payment paid on a date which falls within the period in respect of which a previous payment is taken into account, not being a periodical payment, is to be treated as paid on the first day following the end of that period.

Commencement Information

I59Reg. 59 in force at 11.4.1988, see reg. 1

Liable relative payments to be treated as capitalE+W+S

60.—(1) Subject to paragraph (2), where a liable relative makes a periodical payment concurrently with any other payment, and the weekly amount of the periodical payment as calculated in accordance with regulation 58(1) to (4) (calculation of the weekly amount of a liable relative payment), is equal to or greater than the amount referred to in sub-paragraph (a) of regulation 57(2) (period over which payments other than periodical payments are to be taken into account) less the £2 referred to therein, or sub-paragraph (b) of that regulation, as the case may be, the other payment shall be treated as capital.

(2) If, in any case, the liable relative ceases to make periodical payments, the other payment to which paragraph (1) applies shall be taken into account under paragraph (1) of regulation 57 but, notwithstanding paragraph (4) thereof, the period over which the payment is to be taken into account shall begin on the first day of the benefit week following the last one in which a periodical payment was taken into account.

Commencement Information

I60Reg. 60 in force at 11.4.1988, see reg. 1

[F436CHAPTER VIIAE+W+SCHILD SUPPORT

Textual Amendments

InterpretationE+W+S

60A.  In this Chapter—

“child support maintenance” means such periodical payments as are referred to in section 3(6) of the Child Support Act 1991;

“maintenance assessment” has the same meaning as in the Child Support Act 1991 by virtue of section 54 of that Act.

Treatment of child support maintenanceE+W+S

60B.  [F437Subject to regulation 60E,] all payments of child support maintenance shall to the extent that they are not payments of income be treated as income and shall be taken into account on a weekly basis in accordance with the following provisions of this Chapter.

Textual Amendments

Calculation of the weekly amount of payments of child support maintenance E+W+S

60C.—(1) The weekly amount of child support maintenance shall be determined in accordance with the following provisions of this regulation.

(2) Where payments of child support maintenance are made weekly, the weekly amount shall be the amount of that payment.

(3) Where payments of child support maintenance are made monthly, the weekly amount shall be determined by multiplying the amount of the payment by 12 and dividing the product by 52.

(4) Where payments of child support are made at intervals and those intervals are not a week or a month, the weekly amount shall be determined by dividing that payment by the number equal to the number of weeks (including any part of a week) in that interval.

(5) Where a payment is made and that payment represents a commutation of child support maintenance the weekly amount shall be the weekly amount of the individual child support maintenance payments so commuted as calculated in accordance with paragraphs (2) to (4) as appropriate.

(6) Paragraph (2), (3) or, as the case may be, (4) shall apply to any payments made at the intervals specified in that paragraph whether or not—

(a)the amount paid is in accordance with the maintenance assessment, and

(b)the intervals at which the payments are made are in accordance with the intervals specified by the Secretary of State under regulation 4 of the Child Support (Collection and Enforcement) Regulations 1992.

Date on which child support maintenance is to be treated as paidE+W+S

60D.  A payment of child support maintenance is to be treated as paid—

(a)in the case of a payment which is due to be paid before the first benefit week pursuant to the claim, on the day in the week in which it is due to be paid which corresponds to the first day of the benefit week;

(b)in any other case, on the first day of the benefit week in which it is paid or the first day of the first succeeding benefit week in which it is practicable to take it into account.]

[F438Disregard of payments treated as not relevant incomeE+W+S

60E.  Where the Secretary of State treats any payment of child support maintenance as not being relevant income for the purposes of section 74A of the Social Security Administration Act 1992 (payment of benefit where maintenance payments collected by Secretary of State), that payment shall be disregarded in calculating a claimant’s income.]

Textual Amendments

CHAPTER VIIIE+W+Sstudents

InterpretationE+W+S

61.  In this Chapter, unless the context otherwise requires—

“a course of advanced education” means—

(a)

a full-time course leading to a postgraduate degree or comparable qualification, a first degree or comparable qualification, a diploma of higher education, a higher national diploma, [F439a higher national diploma or higher national certificate of either the Business & [F440Technology] Education Council] or the Scottish Vocational Education Council or a teaching qualification; or

(b)

any other full-time course which is a course of a standard above ordinary national diploma, [F441a national diploma or national certificate of either the Business & [F440Technology] Education Council or the Scottish Vocational Education Council], a general certificate of education (advanced level) a Scottish certificate of education [F442(higher level)] or a Scottish certificate of sixth year studies;

“contribution” means any contribution in respect of the income of any other person which a Minister of the Crown or an education authority takes into account in assessing the amount of the student's grant and by which that amount is, as a consequence, reduced;

“covenant income” means the income net of tax at the basic rate payable to a student under a Deed of Covenant by a person whose income is, or is likely to be, taken into account in assessing the student's grant or award;

“education authority” means a government department, a local education authority as defined in section 114(1) of the Education Act 1944 F443 (interpretation), an education authority as defined in section 135(1) of the Education (Scotland) Act [F4441980] F445 (interpretation), an education and library board established under Article 3 of the Education and Libraries (Northern Ireland) Order 1986F446, any body which is a research council for the purposes of the Science and Technology Act 1965F447 or any analogous government department, authority, board or body, of the Channel Islands, Isle of Man or any other country outside Great Britain.

“grant” means any kind of educational grant or award and includes any scholarship, studentship, exhibition, allowance or bursary [F448but does not include a payment derived from funds made available by the Secretary of State for the purpose of assisting students in financial difficulties under section 100 of the Education Act 1944, sections 131 and 132 of the Education Reform Act 1988 or section 73 of the Education (Scotland) Act 1980];

“grant income” means—

(a)

any income by way of a grant;

(b)

in the case of a student other than one to whom sub-paragraph (c) refers, any contribution which has been assessed whether or not it has been paid;

(c)

in the case of a student to whom paragraph 1, 2 or 7 of Schedule 1 applies (lone parent or disabled student), any contribution which has been assessed and which has been paid;

and any such contribution which is paid by way of a covenant shall be treated as part of the student's grant income.

[F449“last day of the course” means the date on which the last day of the final academic term falls in respect of the course in which the student is enrolled;]

“period of study” means—

(a)

in the case of a course of study for one year or less, the period beginning with the start of the course [F450and ending with the last day of the course];

(b)

in the case of a course of study for more than one year, in the first or, as the case may be, any subsequent year of the course, [F451other than the final year of the course,] the period beginning with the start of the course or, as the case may be, that year's start and ending with either—

(i)

the day before the start of the next year of the course in a case where the student's grant is assessed at a rate appropriate to his studying throughout the year, or, if he does not have a grant, where it would have been assessed at such a rate had he had one; or

(ii)

in any other case the day before the start of the normal summer vacation appropriate to his course;

(c)

[F452in the final year of a course of study of more than one year, the period beginning with that year’s start and ending with the last day of the course;]

“periods of experience” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1987F453;

“sandwich course” has the meaning prescribed in paragraph 1(1) of Schedule 5 to the Education (Mandatory Awards) Regulations 1987;

“standard maintenance grant” means—

(a)

except where paragraph (b) applies, in the case of a student attending a course of study at the University of London or an establishment within the area comprising the City of London and the Metropolitan Police District, the amount specified for the time being in paragraph 2(2)(a) of Schedule 2 to the Education (Mandatory Awards) Regulations 1987 for such a student;

(b)

in the case of a student residing at his parents' home the amount specified in paragraph 3(2) thereof;

(c)

in any other case, the amount specified in paragraph 2(2) other than in sub-paragraph (a) or (b) thereof;

[F454“student” means a person, other than a person in receipt of a training allowance,] aged less than 19 who is attending a full-time course of advanced education or, as the case may be, a person aged 19 or over but under pensionable age who is attending a full-time course of study at an educational establishment; and for the purposes of this definition—

(a)

a person who has started on such a course shall be treated as attending it F455... until [F456the last day of the course] or such earlier date as he abandons it or is dismissed from it;

(b)

a person on a sandwich course shall be treated as attending a full-time course of advanced education or, as the case may be, of study;

“year” in relation to a course, means the period of 12 months beginning on 1st January, 1st April or 1st September according to whether the academic year of the course in question begins in the spring, the summer or the autumn respectively.

Textual Amendments

F439Words in reg. 61 substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 19(a)

F440Word in reg. 61 substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 16

F441Words in reg. 61 substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 19(b)(i)

F442Words in reg. 61 substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 19(b)(ii)

F4431944 c. 31 as amended by S.I. 1974/595 article 3(22) Schedule 1 Part I and by S.I. 1977/293, article 4(1).

Commencement Information

I61Reg. 61 in force at 11.4.1988, see reg. 1

Calculation of grant incomeE+W+S

62.—(1) The amount of a student's grant income to be taken into account shall, subject to [F457paragraphs (2) and (2A)], be the whole of his grant income.

(2) There shall be disregarded from the amount of a student's grant income any payment—

(a)intended to meet tuition fees or examination fees;

(b)intended to meet the cost of special equipment for a student on a course which began before 1st September 1986 in architecture, art and design, home economics, landscape architecture, medicine, music, ophthalmic optics, orthoptics, physical education, physiotherapy, radiography, occupational therapy, dental hygiene, dental therapy, remedial gymnastics, town and country planning and veterinary science or medicine;

(c)intended to meet additional expenditure incurred by a disabled student in respect of his attendance on a course;

(d)intended to meet additional expenditure connected with term time residential study away from the student's educational establishment;

(e)on account of the student maintaining a home at a place other than that at which he resides while attending his course but only to the extent that his rent or rates is not met by housing benefit;

(f)on account of any other person but only if that person is residing outside of the United Kingdom and there is no applicable amount in respect of him;

(g)intended to meet the cost of books and equipment (other than special equipment) or if not so intended an amount equal to [F458£278] towards such costs;

(h)intended to meet travel expenses incurred as a result of his attendance on the course.

[F459(2A) Where in pursuance of an award a student is in receipt of a grant in respect of maintenance under regulation 17(b) of the Education (Manda tory Awards) Regulations 1991, there shall be excluded from his grant income a sum equal to the amount from time to time specified in paragraph 7(4) of Schedule 2 to those Regulations, being the amount to be disregarded in respect of travel costs in the particular circumstances of his case]

(3) A student's grant income[F460, except any amount intended for the maintenance of dependants under [F461Part 3 of Schedule 2 to the Education (Mandatory Awards) Regulations 1991] or intended for an older student under Part 4 of that Schedule,] shall be apportioned—

(a)subject to paragraph (4), in a case where it is attributable to the period of study, equally between the weeks in that period;

(b)in any other case, equally between the weeks in the period in respect of which it is payable.

[F462(3A) Any amount intended for the maintenance of dependants or for an older student under the provisions referred to in paragraph (3) shall be apportioned equally over a period of 52 weeks or, if there are 53 benefit weeks (including part-weeks) in the year, 53.]

(4) In the case of a student on a sandwich course, any periods of experience within the period of study shall be excluded and the student's grant income shall be apportioned equally between the remaining weeks in that period.

Textual Amendments

F457Words in reg. 62(1) substituted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 3) Regulations 1992 (S.I. 1992/2155), regs. 1(1), 20

Commencement Information

I62Reg. 62 in force at 11.4.1988, see reg. 1

Calculation of covenant income where a contribution is assessedE+W+S

63.—(1) Where a student is in receipt of income by way of a grant during a period of study and a contribution has been assessed, the amount of his covenant income to be taken into account for that period and any summer vacation immediately following shall be the whole amount of his covenant income less, subject to paragraph (3), the amount of the contribution.

(2) The weekly amount of the student's covenant income shall be determined—

(a)by dividing the amount of income which falls to be taken into account under paragraph (1) by 52 or, if there are 53 benefit weeks (including part weeks) in the year, 53; and

(b)by disregarding from the resulting amount, £5.

(3) For the purposes of paragraph (1), the contribution shall be treated as increased by the amount, if any, by which the amount excluded under [F463regulation 62(2)(h) (calculation of grant income) falls short of the amount for the time being specified in paragraph 7(4)(i) of Schedule 2 to the Education (Mandatory Awards) Regulations 1991 (travel expenditure).]

Textual Amendments

Commencement Information

I63Reg. 63 in force at 11.4.1988, see reg. 1

Covenant income where no grant income or no contribution is assessedE+W+S

64.—(1) Where a student is not in receipt of income by way of a grant the amount of his covenant income shall be calculated as follows—

(a)any sums intended for any expenditure specified in regulation 62(2)(a) to (f), (calculation of grant income) necessary as a result of his attendance on the course, shall be disregarded;

(b)any covenant income, up to the amount of the standard maintenance grant, which is not so disregarded, shall be apportioned equally between the weeks of the period of study and there shall be disregarded from the covenant income to be so apportioned the amount which would have been disregarded under [F464regulation 62(2)(g) and (h) and (2A)] (calculation of grant income) had the student been in receipt of the standard maintenance grant;

(c)the balance, if any, shall be divided by 52 or, if there are 53 benefit weeks (including part weeks) in the year, 53 and treated as weekly income of which £5 shall be disregarded.

(2) Where a student is in receipt of income by way of a grant and no contribution has been assessed, the amount of his covenant income shall be calculated in accordance with sub-paragraphs (a) to (c) of paragraph (1), except that—

(a)the value of the standard maintenance grant shall be abated by the amount of his grant income less an amount equal to the amount of any sums disregarded under regulation 62(2)(a) to (f); and

(b)the amount to be disregarded under paragraph (1)(b) shall be abated by an amount equal to the amount of any sums disregarded under [F464regulation 62(2)(g) and (h) and (2A)].

Textual Amendments

Commencement Information

I64Reg. 64 in force at 11.4.1988, see reg. 1

Relationship with amounts to be disregarded under Schedule 9E+W+S

65.  No part of a student's covenant income or grant income shall be disregarded under paragraph 15 of Schedule 9 (charitable and voluntary payments) and any other income [F465to which sub-paragraph (1) of that paragraph applies shall be disregarded only to the extent that] the amount disregarded under regulation 63(2)(b) (calculation of covenant income where a contribution is assessed) or, as the case may be, 64(1)(c) (covenant income where no grant income or no contribution is assessed) is less than [F466£20].

Textual Amendments

F465Words in reg. 65 substituted (with effect in accordance with reg. 1(2)(3) of the amending S.I.) by The Income Support (General) Amendment Regulations 1990 (S.I. 1990/547), regs. 1(1)(b), 14(a)

F466Sum in reg. 65 substituted (8.4.1996) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1996 (S.I. 1996/462), regs. 1(2), 8(a)

Commencement Information

I65Reg. 65 in force at 11.4.1988, see reg. 1

Other amounts to be disregardedE+W+S

66.—(1) For the purposes of ascertaining income [F467other than grant income, covenant income and loans treated as income in accordance with regulation 66A], any amounts intended for any expenditure specified in regulation 62(2) (calculation of grant income) necessary as a result of his attendance on the course shall be disregarded but only if, and to the extent that, the necessary expenditure exceeds or is likely to exceed the amount of the sums disregarded under regulation 62(2) [F468and (2A)], 63(3) and 64(1)(a) or (b) (calculation of grant income and covenant income) on like expenditure.

(2) Where a claim is made in respect of any period in the normal summer vacation and any income is payable under a Deed of Covenant which commences or takes effect after the first day of that vacation, that income shall be disregarded.

Textual Amendments

F467Words in reg. 66(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 5(a)

F468Words in reg. 66(1) inserted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 5(b)

Commencement Information

I66Reg. 66 in force at 11.4.1988, see reg. 1

[F469Treatment of student loansE+W+S

66A.—(1) A loan which is made to a student pursuant to arrangements made under section 1 of the Education (Student Loans) Act 1990 [F470or article 3 of the Education (Student Loans) (Northern Ireland) Order 1990] shall be treated as income.

(2) In calculating the weekly amount of the loan to be taken into account as income—

(a)except where sub-paragraph (b) applies, the loan shall be apportioned equally between the weeks in the academic year in respect of which the loan is payable;

(b)in the case of a loan which is payable in respect of the final academic year of the course or if the course is only of one academic year’s duration, in respect of that year the loan shall be apportioned equally between the weeks in the period beginning with the start of the final academic year or, as the case may be, the single academic year and ending with [F471the last day of the course,]

and from the weekly amount so apportioned there shall be disregarded £10.

[F472(3) For the purposes of this regulation a student shall be treated as possessing the maximum amount of any loan referred to in paragraph (1) which he will be able to acquire in respect of an academic year by taking reasonable steps to do so.]]

Textual Amendments

Disregard of contributionE+W+S

67.  Where the claimant or his partner is a student and[F473, for the purposes of assessing a contribution to the student’s grant, the other partner’s income has been taken into account, an amount equal to that contribution shall be disregarded for the purposes of assessing that other partner’s income.]

Textual Amendments

Commencement Information

I67Reg. 67 in force at 11.4.1988, see reg. 1

Income treated as capitalE+W+S

68.  Any amount by way of a refund of tax deducted from a student's income shall be treated as capital.

Commencement Information

I68Reg. 68 in force at 11.4.1988, see reg. 1

Disregard of changes occurring during summer vacationE+W+S

69.  In calculating a student's income an adjudication officer shall disregard any change in the standard maintenance grant occurring in the recognised summer vacation appropriate to the student's course, if that vacation does not form part of his period of study, from the date on which the change occurred up to the end of that vacation.

Commencement Information

I69Reg. 69 in force at 11.4.1988, see reg. 1

PART VIE+W+SURGENT CASES

Urgent casesE+W+S

70.—(1) In a case to which this regulation applies, a claimant' weekly applicable amount and his income and capital shall be calculated in accordance with the following provisions of this Part.

(2) Subject to paragraph (4), this regulation applies to—

(a)a claimant to whom paragraph (3) (certain persons from abroad) applies;

(b)a claimant who is treated as possessing income under regulation 42(3) (notional income);

F474(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) This paragraph applies to a person from abroad within the meaning of regulation 21 (3) (special cases) who—

(a)having, during any one period of limited leave of a kind referred to in sub-paragraph (a) of that definition (including any period as extended), supported himself without recourse to public funds other than any such recourse by reason of the previous application of this sub-paragraph, is temporarily without funds during that period of leave because remittances to him from abroad have been disrupted provided that there is a reasonable expectation that his supply of funds will be resumed;

[F475(b)is an asylum seeker for the purposes of paragraph 3A;]

[F476(c)is a person to whom sub-paragraph (i) of that definition (sponsored immigrant) applies and the person or persons who gave the undertaking to provide for his maintenance and accommodation has, as the case may be have, died;]

F477(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(g). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(h). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(i). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F478(j). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F479(3A) For the purposes of this paragraph, a person—

[F480(a)is an asylum seeker when he submits on his arrival (other than on his re-entry) in the United Kingdom from a country outside the Common Travel Area a claim for asylum to the Secretary of State that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom and that claim is recorded by the Secretary of State as having been made; or

(aa)becomes, while present in Great Britain, an asylum seeker when—

(i)the Secretary of State makes a declaration to the effect that the country of which he is a national is subject to such a fundamental change in circumstances that he would not normally order the return of a person to that country, and

(ii)he submits, within a period of 3 months from the day that declaration was made, a claim for asylum to the Secretary of State under the Convention relating to the Status of Refugees, and

(iii)his claim for asylum under that Convention is recorded by the Secretary of State as having been made; and;]

[F481(b)ceases to be an asylum seeker—

(i)in the case of a claim for asylum which, on or after 5th February 1996, is recorded by the Secretary of State as having been determined (other than on appeal) or abandoned, on the date on which it is so recorded, or

(ii)in the case of a claim for asylum which is recorded as determined before 5th February 1996 and in respect of which there is either an appeal pending on 5th February 1996 or an appeal is made within the time limits specified in rule 5 of the Asylum Appeals (Procedure) Rules 1993, on the date on which that appeal is determined; and]

(3B) In paragraph (3A), “the Convention” means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and the protocol to that Convention[F482; and “the Common Travel Area" means the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively.]]

(4) This regulation shall only apply to a person to whom paragraph (2)(b) [F483applies, where the income he is treated as possessing by virtue of regulation 42(3) (notional income)] is not readily available to him; and

(a)the amount of income support which would be payable but for this Part is less than the amount of income support payable by virtue of the provisions of this Part; and

(b)the adjudication officer is satisfied that, unless the provisions of this Part are applied to the claimant, the claimant or his family will suffer hardship.

Textual Amendments

Commencement Information

I70Reg. 70 in force at 11.4.1988, see reg. 1

Applicable amounts in urgent casesE+W+S

71.—(1) For the purposes of calculating any entitlement to income support under this Part—

(a)except in a case to which [F484sub-paragraph (b), (c) or (d),] applies, a claimant' weekly applicable amount shall be the aggregate of—

(i)90 per cent of the amount applicable in respect of himself or, if he is a member of a couple or of a polygamous marriage, of the amount applicable in respect of both of them under paragraph 1 (1), (2) or (3) of Schedule 2 or, as the case may be, the amount applicable in respect of them under regulation 18 (polygamous marriages); and where regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) applies, the reference in this head to 90 per cent of the amount applicable shall be construed as a reference to 90 per cent of the relevant amount under that regulation reduced by the percentage specified in paragraph (1) or (2), as the case may be, of that regulation;

(ii)the amount applicable under paragraph 2 of Schedule 2 in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F485except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(iii)the amount, if applicable, specified in [F486Part II or III of Schedule 2 (premiums)]; and

(iv)any amounts applicable under [F487regulation 17(1)(e) or, as the case may be, 18(1)(f) (housing costs)]; [F488and

(v)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A][F489or, as the case may be, 3B];

[F490(vi)the amount, if applicable, specified in paragraph 2A of Schedule 2;]

(b)F491F492where the claimant is a resident in ... ... a residential care home or a nursing home [F493and has a preserved right], his weekly applicable amount shall be the aggregate of—

(i)90 per cent of the amount of the allowance for personal expenses prescribed in paragraph 13 (a) of Schedule 4 (applicable amounts of persons in residential care and nursing homes) F494... or, if he is a member of a couple or of a polygamous marriage, of the amount applicable in respect of both or all of them; and where regulation 22 (reduction in applicable amounts in certain cases of actual or notional unemployment benefit disqualification) applies, the reference in this head to 90 per cent of the amount so reduced shall be construed as a reference to 90 per cent of the relevant amount under that regulation reduced by the percentage specified in paragraph (1) or (2), as the case may be, of that regulation;

(ii)the amount applicable under paragraph 13 (b) to (e) of Schedule 4 F495... in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F485except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(iii)the amount in respect of the weekly charge for his accommodation calculated in accordance with regulation 19 and Schedule 4 F496... except any amount in respect of a child or young person who is a member of the family and whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F485except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000.

(c)where the claimant is resident in residential accommodation, his weekly applicable amount shall be the aggregate of—

(i)[F49798 per cent] of the amount F498... referred to in column (2) of paragraph 13 (a) to (c) and (e) of Schedule 7 (applicable amounts in special cases) applicable to him;

(ii)the amount applicable under column (2) of paragraph 13 (d) of Schedule 7, in respect of any child or young person who is a member of his family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F485except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

F499(iii). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F500(d)except where sub-paragraph (b) or (c) applies, in the case of a person to whom any paragraph, other than paragraph 17, in column (1) of Schedule 7 (special cases) applies, the amount shall be 90% of the amount applicable in column 2 of that Schedule in respect of the claimant and partner (if any), plus, if applicable—

(i)any amount in respect of a child or young person who is a member of the family except a child or young person whose capital, if calculated in accordance with Part V in like manner as for the claimant, [F485except as provided in regulation 44(1) (modifications in respect of children and young person)], would exceed £3,000;

(ii)any premium under [F501Part II or III of Schedule 2]; and

[F502(iii)any amounts applicable under regulation 17(1)(e) or, as the case may be, 18(1)(f)]][F503and

(iv)the amount of the protected sum which may be applicable to him determined in accordance with Schedule 3A][F504or, as the case may be, 3B].

(2) The period for which a claimant' weekly applicable amount is to be calculated in accordance with paragraph (1) where paragraph (3) of regulation 70 (urgent cases) applies shall be—

(a)in a case to which sub-paragraph (a) of paragraph (3) of that regulation applies, any period, or the aggregate of any periods, not exceeding 42 days during any one period of leave to which that regulation applies;

F505(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F505(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F505(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F505(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F505(f). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F506(3) Where the calculation of a claimant’s applicable amount under this regulation results in a fraction of a penny that fraction shall be treated as a penny.]

Textual Amendments

F485Words in reg. 71(1) substituted (with effect in accordance with reg. 1(3) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) Regulations 1994 (S.I. 1994/527), regs. 1(1)(b), 6

F489Words in reg. 71(1)(a)(v) added (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 17

F490Reg. 71(1)(a)(vi) added (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 17(2)

F492Words in reg. 71(1)(b) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 8

F493Words in reg. 71(1)(b) inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 17(3)

F494Words in reg. 71(1)(b)(i) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 8(i)

F495Words in reg. 71(1)(b)(ii) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 8(ii)

F496Words in reg. 71(1)(b)(iii) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 8(iii)

F498Words in reg. 71(1)(c)(i) omitted (with effect in accordance with reg. 1(2) of the amending S.I.) by virtue of The Income-related Benefits Schemes (Miscellaneous Amendments) (No. 4) Regulations 1993 (S.I. 1993/2119), regs. 1(1)(a), 17(4)

F504Words in reg. 71(1)(d)(iv) added (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 17

Modifications etc. (not altering text)

C12Reg. 71(1)(a)(i) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C13Reg. 71(1)(a)(ii) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

C14Reg. 71(1)(b)(i) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C15Reg. 71(1)(b)(ii)(iii) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

C16Reg. 71(1)(c)(i) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C17Reg. 71(1)(c)(ii) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

C18Reg. 71(1)(d) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(12), Sch. 8

C19Reg. 71(1)(d)(i) sum confirmed (coming into force in accordance with art. 1(2)(g) of the amending S.I.) by The Social Security Benefits Up-rating Order 1996 (S.I. 1996/599), arts. 1(2)(g), 18(2)

Commencement Information

I71Reg. 71 in force at 11.4.1988, see reg. 1

Assessment of income and capital in urgent casesE+W+S

72.—(1) The claimant' income shall be calculated in accordance with Part V subject to the following modifications—

[F507(a)any income, other than a payment of income [F508or income in kind] made under the Macfarlane Trust[F509, the Macfarlane (Special Payments) Trust][F510, the Macfarlane (Special Payments) (No. 2) Trust][F511, the Fund[F512, the Eileen Trust ]] or [F513the Independent Living Funds] [F514or income to which [F515paragraph 5, 39(2), (3) or (4),] 40, [F516or 42] of Schedule 9 (disregard of income other than earnings) applies], possessed or treated as possessed by him shall be taken into account in full notwithstanding any provision in that Part disregarding the whole or any part of that income;]

(b)any income to which regulation 53 (calculation of tariff income from capital) applies shall be disregarded;

(c)income treated as capital by virtue of [F517regulation 48(1), (2), (3) and (9)] (income treated as capital) shall be taken into account as income;

(d)in a case to which paragraph (2) (b) of regulation 70 (urgent cases) applies, any income to which regulation 42 (3) (notional income) applies shall be disregarded;

F518(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) The claimant' capital calculated in accordance with Part V, but including any capital referred to in paragraphs 3 and, to the extent that such assets as are referred to in paragraph 6 consist of liquid assets, 6 [F519and, except to the extent that the arrears referred to in paragraph 7 consist of arrears of housing benefit payable under Part II of the Act or Part II of the Social Security and Housing Benefits Act 1982, 7, 9(b), 19, 30 and 32 of Schedule 10] (capital to be disregarded) shall be taken into account in full and the amount of income support which would, but for this paragraph be payable under this regulation, shall be payable only to the extent that it exceeds the amount of that capital.

Textual Amendments

Commencement Information

I72Reg. 72 in force at 11.4.1988, see reg. 1

[F520PART VIIE+W+SCALCULATION OF INCOME SUPPORT FOR PART-WEEKS

Textual Amendments

Amount of income support payableE+W+S

73.—(1) Subject to regulations 75 (modifications in income) and 76 (reduction in certain cases), where a claimant is entitled to income support for a period (referred to in this Part as a part-week) to which subsection (1A) of section 21 of the Act (amount etc. of income-related benefit) applies, the amount of income support payable shall, except where paragraph (2) applies, be calculated in accordance with the following formulae—

(a)if the claimant has no income,

(b)if the claimant has income,

(2) Subject to regulations 75 and 76, in the case of a claimant to whom regulation 19 F521... (persons in residential care or nursing homes F521...) applies, where the weekly charge for the accommodation is due to be paid during a part-week to which regulation 74(1)(a) or (b) applies, the amount of income Support payable shall be calculated in accordance with the following formulae—

(a)if the claimant has no income, A;

(b)if the claimant has income, (A − I) − B.

(3) In this Regulation—

  • “A”, Subject to paragraph (4), means the claimant’s weekly applicable amount in the relevant week;

  • “B” means the amount of any income support, unemployment benefit, [F522maternity allowance,] [F523short-term or long-term incapacity benefit], or severe disablement allowance payable in respect of any day in the part-week;

  • “I” means his weekly income in the relevant week less B;

  • “N” means the number of days in the part-week;

  • “relevant week” means the period of 7 days determined in accordance with regulation 74.

(4) In a case to which paragraph (2) applies, a claimant’s weekly applicable amount shall be—

(a)where the weekly charge for the accommodation includes all meals, the aggregate of the following amounts—

(i)the weekly charge for the accommodation determined in accordance with paragraph 1(1)(a) of Schedule 4 F524...; and

(ii)the amount calculated in accordance with the formula—

(b)where the weekly charge for the accommodation does not include all meals, the aggregate of the following amounts':

(i)the weekly charge for the accommodation determined in accordance with paragraph 1(1)(a) of Schedule 4 F524... less M; and

(ii)the amount calculated in accordance with the formula—

.

(5) In paragraph (4)—

“H” means the weekly amount determined in accordance with paragraph 1(1)(c) of Schedule 4 F525...;

“M” means the amount of the increase for meals calculated on a weekly basis in accordance with paragraph 2 of Schedule 4 F525...;

“P” means the weekly amount for personal expenses determined in accordance with paragraph 13 of Schedule 4 F526....

Textual Amendments

F521Words in reg. 73(2) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 9(a)

F524Words in reg. 73(4) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 9(b)

F525Words in reg. 73(5) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 9(b)

F526Words in reg. 73(5) omitted (with effect in accordance with reg. 1(1)(c) of the amending S.I.) by virtue of The Income Support (General) Amendment Regulations 1989 (S.I. 1989/534), reg. 1(1), Sch. 1 para. 9(c)

Relevant weekE+W+S

74.—(1) Where the part-week—

(a)is the whole period for which income support is payable or occurs at the beginning of the claim, the relevant week is the period of 7 days ending on the last day of that part-week; or

(b)occurs at the end of the claim, the relevant week is the period of 7 days beginning on the first day of that part-week.

(2) Where during the currency of a claim the claimant makes a claim for a relevant social security benefit within the meaning of paragraph 4 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987 and as a result his benefit week changes, for the purpose of calculating the amount of income support payable—

(a)for the part-week beginning on the day after his last complete benefit week before the date from which he makes a claim for the relevant social security benefit and ending immediately before that date, the relevant week is the period of 7 days beginning on the day after his last complete benefit week (the first relevant week);

(b)for the part-week beginning on the date from which he makes a claim for the relevant social security benefit and ending immediately before the start of his next benefit week after the date of that claim, the relevant week is the period of 7 days ending immediately before the start of his next benefit week (the second relevant week).

(3) Where during the currency of a claim the claimant’s benefit week changes at the direction of the Secretary of State under paragraph 3 of Schedule 7 to the Social Security (Claims and Payments) Regulations 1987, for the purpose of calculating the amount of income Support payable for the part-week beginning on the day after his last complete benefit week before the change and ending immediately before the change, the relevant week is the period of 7 days beginning On the day after the last complete benefit week.

Modifications in the calculation of incomeE+W+S

75.  For the purposes of regulation 73 (amount of income support payable for part-weeks), a claimant’s income and the income of any person which the claimant is treated as possessing under section 22(5) of the Act or regulation 23(3) shall be calculated in accordance with Part V and, where applicable, VI subject to the following modifications—

(a)any income which is due to be paid in the relevant week shall be treated as paid on the first day of that week;

(b)any income support, unemployment benefit, [F527maternity allowance,] [F528short-term or long-term incapacity benefit], or severe disablement allowance F529... payable in the relevant week but not in respect of any day in the part-week shall be disregarded;

(c)where the part-week occurs at the end of the claim, any income or any change in the amount of income of the same kind which is first payable within the relevant week but not on any day in the part-week shall be disregarded;

(d)where the part-week occurs immediately after a period in which a person was treated as engaged in remunerative work under regulation 5(5) (persons treated as engaged in remunerative work) any earnings which are taken into account for the purposes of determining that period shall be disregarded;

(e)where regulation 74(2) (relevant week) applies, any payment of income which—

(i)is the final payment in a series of payments of the same kind or, if there has been an interruption in such payments, the last one before the interruption;

(ii)is payable in respect of a period not exceeding a week; and

(iii)is due to be paid on a day which falls within both the first and second relevant weeks,

shall be taken into account in either the first relevant week or, if it is impracticable to take it into account in that week, in the second relevant week; but this paragraph shall not apply to a payment of income support, unemployment benefit, [F530maternity allowance,] [F531short-term or long-term incapacity benefit] or severe disablement allowanceF532...;

(f)where regulation 74(2) applies, any payment of income which—

(i)is the final payment in a series of payments of the same kind or, if there has been an interruption in such payments, the last one before the interruption;

(ii)is payable in respect of a period exceeding a week but not exceeding 2 weeks; and

(iii)is due to be paid on a day which falls within both the first and second relevant weeks,

shall be disregarded; but this sub-paragraph shall not apply to a payment of income support, unemployment benefit, [F533maternity allowance,] [F531short-term or long-term incapacity benefit], or severe disablement allowanceF532...;

(g)where regulation 74(2) applies, if the weekly amount of any income which is due to be paid on a day which falls within both the first and second relevant weeks is more than the weekly amount of income of the same kind due to be paid in the last complete benefit week, the excess shall be disregarded;

(h)where only part of the weekly amount of income is taken into account in the relevant week, the balance shall be disregarded.

Textual Amendments

F527Words in reg. 75(b) inserted (12.9.1988) by The Income Support (General) Amendment No. 4 Regulations 1988 (S.I. 1988/1445), regs. 1(1)(b), 17

F530Words in reg. 75(e) inserted (12.9.1988) by The Income Support (General) Amendment No. 4 Regulations 1988 (S.I. 1988/1445), regs. 1(1)(b), 17

F533Words in reg. 75(f) inserted (12.9.1988) by The Income Support (General) Amendment No. 4 Regulations 1988 (S.I. 1988/1445), regs. 1(1)(b), 17

Reduction in certain casesE+W+S

76.  There shall be deducted from the amount of income support which would, but for this regulation, be payable for a part-week—

(a)in the case of a claimant to whom regulation 22(1) or (2) (reductions in weekly applicable amounts in certain cases of unemployment benefit disqualification) applies, the proportion of the relevant amount specified therein appropriate to the number of days in the part-week;

(b)where regulation 75(f) (modifications in the calculation of income) applies, one-half of the amount disregarded under regulation 75(f) less the weekly amount of any disregard under Schedule 8 or 9 appropriate to that payment.

Modification of section 23(5) of the ActE+W+S

77.  Where income support is payable for a part-week, section 23(5) of the Act (trade disputes) shall have effect as if the following paragraph were substituted for paragraph (b)—

“(b)any payment by way of income support for a part-week which apart from this paragraph would be made to him, or to a person whose applicable amount is aggregated with his—

(i)shall not be made if the payment for that part-week is equal to or less than the proportion of the relevant sum appropriate to the number of days in the part-week; or

(ii)if it is more than that proportion, shall be made at a rate equal to the difference.”]

Secretary of State for Social Services