PART VINCOME AND CAPITAL
CHAPTER Vother income
Notional incomeI142
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 F1 (rates of child benefit),
F12e
family credit;
F12f
disability working allowance,
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 F3it could be expected to be acquired were an application made.
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 F2 (duplication and prescribed payments or maintenance payments) and not made on or before the date prescribed in relation to it,
shall F14except for any amount to which paragraph (3A) or (B) applies be treated as possessed by the claimant.
F153A
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 F20... due to an insufficiency of resources.
F153B
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 liabilitiesF21....
C1F54
Any payment of income, other than a payment of income made under the Macfarlane TrustF8, the Macfarlane (Special Payments) TrustF9, the Macfarlane (Special Payments) (No. 2) TrustF13, the FundF23, the Eileen Trust or F22the 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 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 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, F10... any housing costs to the extent that they are met under regulations 17(1)(e) or 18(1)(f) (housing costs) or accommodation charge to the extent that it is met under regulation 19 F7... (persons in residential care or nursing homes F6... F7...), of that single claimant or, as the case may be, of any member of that familyF11, or is used for any F19council 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.
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 voluntary body or is a volunteer if the adjudication officer is satisfied 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 F17the 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, F18the earnings to which the lower rate and, if appropriate, the basic rate 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;
b
an amount in respect of primary Class 1 contributions payable under the Social Security Act in respect of those earnings; and
c
one-half of any sum payable by the claimant by way of a contribution towards an occupational or personal pension scheme.
F168A
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.
F49
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.